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Apple v. Samsung, part I

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I'll have a lot more to say about this case and the problems the $1.05 billion jury verdict illustrates, but, in the absence of information that hasn't been in the press accounts, James Maxeiner's critique of the jury form seems misplaced. Samsung had the power to ask for a "special verdict" form more detailed than the one that went to the jury. As best I can tell, they chose not to do so, and thought it advantageous not to. (It's possible that they did ask for such a form, the judge denied the request, and I missed the press coverage of it, or that the press didn't cover the issue.) Maxeiner worries that this gives the Federal Circuit nothing to review, but that's not so, either. The trial was decided on discovery disputes that resulted in the jury not seeing highly probative Samsung evidence, and that, along with questions of the scope of the patents, will surely be before the Federal Circuit.

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How does this case make the U.S. look abroad? We don't measure up to international standards.

Principle 23.2. The judgment should be accompanied by a reasoned explanation of the essential factual, legal, and evidentiary basis of the decision. ALI/UNIDROIT Principles of Transnational Civil Procedure, American Law Institute and UNIDROIT (2004)

There was a time when Korea was considered part of the third world and the United States was the first world. In the third world, foreign investors had to worry about expropriation and failure to follow international standards of the rule of law. The United States protected foreign investors.

Today, to the rest of the first world, the United States is a legal third world. Investors abroad fear the United States because of our class actions, punitive damages, attorneys’ fees and unreasoned decisions. In other countries where Apple and Samsung have battled, according to Washington Post this includes Korea, Germany, France, Italy and The Netherlands, courts give reasoned explanations for their decisions. Comparing the decisions in the different countries would be an interesting comparative procedure project.

At least since the Field Code of 1848, Americans have put our hopes in the inadequate substitute of special verdicts. They have never caught on. It is past time that we guarantee litigants justified decisions. It is a lame excuse to say that our jury system precludes it. If a constitutional amendment is off the table, a little imagination and a little originalism about the jury's role in 1791, could provide the solution.

Where the rule of law is taken seriously, litigants have a right to reasoned decisions. One would think that we could provide what Korea provides. For a mock example of a Korean reasoned decision, see pages 238-241 of Failures of American Civil Justice in International Perspective, http://www.amazon.com/Failures-American-International-Perspective-ebook/dp/product-description/B005IVX1I4. Using the Look inside the book feature and searching for “teokre” you can see all of the judgment except the first page caption and order to pay.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.