Slate carries a column on the aging and senility of the federal judiciary, a topic that could very well be related to the US Supreme Court, where the current average age is 65 (this doesn’t sound so bad till one realizes that it’s the arithmetic mean and that the “I stayed till I was too damn old and finally retired” crowd are often deputized back into courts of appeals).
One major problem is that the federal judiciary is where much of the law concerning new technology is being made, and as Slate’s article makes plain, the elderly/senile judiciary is chock-full of people who have major issues understanding, much less ruling on, technology. To wit:
Some of the lawyers figured that Owen, whose chambers came with a mimeograph machine when he became a judge in 1973, was just behind the times. Others wondered if the judge’s memory was failing him. After all, the most famous case in his long career—the back-to-back trials of Silicon Valley investment banker Frank Quattrone—had revolved around a single e-mail. Yet he now acted as though this was the first he was hearing about it. “He didn’t understand what was happening in his own courtroom,” said one lawyer present that day.
The implications of a senile judiciary are staggering. For instance, some lawyers have taken to sticking a boilerplate “copyright phrase” in the signature for each of their emails, and there’s surprising debate on whether you can, legally, do things like publish the Cease-and-Desist letter some shyster snake just sent you claiming a blog entry ‘s fake name is too close to his non-trademarked, imaginary trucking company’s name; imagine the chilling effects on public discourse should some 85-year-old fool actually decide that someone letting the world know when, say, The National Pork Board do something stupid constituted a “criminal act.”
It goes beyond that, however. Consumer rights are constantly eroded thanks to overbroad “copyright laws” that forbid going around “Digital Rights Management” and shrinkwrap-licenses, the net effect of which is to put pretty much nothing but a speedbump in the way of those who will copy various things (the term “Piracy” being not quite apt, and perhaps the term “Jesusing” after the parable of the fishes and the loaves being a better choice for creating multiple copies out of nothing), but offers all layers of annoyance and nuisance for people who want to do very legitimate things like load an alternate operating system into a computer-system such as the Sony Playstation 3.
If the federal judiciary were not so ancient, senile, and easily bamboozled, consumer rights might not vanish quite so rapidly. As it stands, though, the senile fools on the US Supreme Court could not even be convinced that the US Constitution’s prohibition on ex post facto laws would block things such as Bill Clinton’s retroactive tax increases or Congresses repeated, retroactive “copyright term extensions.”
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