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Comment by DeusExMachina | Hacker News Reader

> “Walled gardens have existed for decades,” said the judge. “Nintendo has had a walled garden. Sony has had a walled garden. Microsoft has had a walled garden. What Apple’s doing is not much different...

Shouldn't a judge look at what is allowed by the law, instead of being the devil's advocate and say "those guys have done it for years, so it's fine"?

Something might be a long standing practice and still be against the law. Something might have not been against the law in the past and be against it now. I'm not saying that it is, but that's what the judge should base his argument on.

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> Something might be a long standing practice and still be against the law

The first step to finding legal precedent is exploring practical precedent. This being an injunction hearing, part of the judge’s job is determining whether Epic is likely to prevail in its argument. The fact that it seeks to challenge practical precedent makes the outcome less predictable and an injunction less reasonable.

> Shouldn't a judge look at what is allowed by the law, instead of being the devil's advocate and say "those guys have done it for years, so it's fine"?

I haven't been able to find the actual details yet, but from what I can gather, this is not the actual hearing.

Right now, the judge's job isn't to determine whether Apple's terms were illegal, or whether Epic breached those terms with Apple.

The judge is deciding whether or not Apple should be injuncted from booting Fortnite from the App Store, and whether or not the matter should proceed to trial.

It's less about black-letter law, and more about judicial discretion (albeit exercised very conservatively). So this type of looser language is to be expected.

JSYK: "injuncted" -> "enjoined"

'injuncted' is the preferred term in Australia.

Source: http://www.austlii.edu.au/cgi-bin/sinosrch.cgi?method=auto&q...

I assume "enjoined" is preferred in the USA (and in all fairness, I guess it would be better to use the American term for an American case).

No. The judge is asking a valid question based on precedence. It’s up to the plaintiff’s legal team to show the judge either why their case is different, or that the precedent setters are in the wrong as well.

> Something might be a long standing practice and still be against the law.

That's extremely unlikely -- it would have been prosecuted previously otherwise.

A better term for "long standing practice" is precedent. Laws often don't account for certain edge cases or unseen developments, so judges in common law countries do very much look at what other judges have permitted or not in the past, in order to maintain continuity.

Otherwise you'd be at the whim of each and every judge interpreting law totally differently, which would be a nightmare for anyone trying to figure out what is permitted or not.

> That's extremely unlikely -- it would have been prosecuted previously otherwise.

This sounds like the legal equivalent of the joke about the two economists who find a $20 bill on the ground. One asks "Is that a $20 bill?" The other says, "Couldn't be. If it was, someone would have picked it up by now", and they move on.

In some cases, an injustice goes long-standing because nobody bothers to litigate it.

But the far more common scenario is that it's been litigated and the counter-argument found wanting.

The Emoluments Clause has been in open violation for 3.5 years and nothing has happened. Doesn't mean anything.

I'm talking about law as applied to everyday citizens and corporations.

When you get to balance of powers and prosecuting presidents, you're not really operating primarily in the legislative game anymore, but rather in the power politics game, no matter how much they dress it up in legal language.

Hard to say for sure without additional context to the judge's statements; perhaps they were discussing precedent?

In general, if something is common for decades and a plaintiff comes to claim it's illegal, the burden of proof is on the plaintiff. The defendant will be able to bring up previous court cases where the status quo was challenged and unmodified.

> Shouldn't a judge look at what is allowed by the law, instead of being the devil's advocate and say "those guys have done it for years, so it's fine"?

This has been done in the past regarding firearms law - “the law has stood for decades, so it must be constitutional.”

I find that reasoning specious, but it’s happened multiple times so it’s apparently accepted by at least a plurality of our judiciary.

precedent is law in a common law system such as our own.

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