Saturday, May 22, 2004

A Day When Judges Are Technology Experts

It's hard to be a judge.

Those people wearing the black robes find themselves at two critical intersections in our legal system:

  1. In most circumstances, judges are tasked with maintaining order between two radically opposed sides in an uncertain situation.

    It doesn't help that both these sides present their interpretation of the situation as correct.

  2. Typically, judges strive to arrive at legally consistent decisions -- decisions that seem based on the rule of law, somehow beyond their personal judgment and understanding.

    As irrational as it might seem, they're trying to take themselves out of the equation, settling on a ruling that is more universal than their particular foibles.
Regarding the first point, I hope that our legal system finds a way to evolve towards a less adversarial structure. Though I admire the extent to which attorneys represent their client's best interest, I cannot escape the idea that an attorney is an officer of the court: Tasked equally by the client and by the jurisdiction to assist in reaching a fair conclusion.

It's the second point -- judges striving to achieve legal consistency above personal judgment and understanding -- where I have some concerns about our federal district court judges.

Now, President Bush & Roy Moore would lament our federal legal system's trending towards progressive politics. But I'd hail that trait. My beef is with how federal judges address technological matters.

I believe that we need to change the structure of our Federal District Court system to better address matters of technical complexity, namely patent litigation and software litigation.

Federal district court has become the front line of American business concerning patents. As the USPTO has utterly dropped the ball, using an antiquated system to approve questionable patents by the bushel, and federal district courts have been tasked with cleaning up their mess.

I propose a temporary solution. For the next 30 years (at least until the USPTO figures out how to manage software patents and international cooperation), our government needs to establish a separate patent court, similar to Nebraska's Workers' Compensation Court. These courts would only sit on patent litigation cases, and the presiding judges would be experts in intellectual property law and technology.

As the caseload of these judges would be lighter than that of a typical federal judge, they would also be available to consult with standard federal district court judges on technologically complex litigation outside the patent realm. I'm uncomfortable with a judge who has to have two legal adversaries describe the database industry to him. I'd be much more content to have another judge sitting alongside him who was more familiar with the software industry.

Though the federal judge hearing a technologically complex non-patent case would ultimately provide the judgment, the federal district patent court judge would serve as an impartial resource for that judge, a way by which the judge could learn about the industry without getting that information from a biased party.

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