Agenda item 1: Testing the Judiciary Act

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Agenda item 1: Testing the Judiciary Act

Post by Justice Soothsayer »

[quote:6yr3zrti]1) Test of the Judiciary Act
1. Can we fairly assess the Judiciary Act without first letting it run
through some cases? If we want a "trial run", how long should it be?
How do we assess performance of the judiciary? [/quote:6yr3zrti]

Comments?
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Post by Patroklus Murakami »

This cuts to the heart of the matter in my opinion.

We cannot make a realistic assessment of the Judiciary Act until the judicial system has been implemented (we are still in the throes of doing so) and we have had some experience of trials taking place under the agreed arrangements. One of my main bones of contention with those who seek repeal of the Judiciary Act is that they are doing so [b:bigk1nz5][i:bigk1nz5]before it has even had a chance to prove itself[/i:bigk1nz5].[/b:bigk1nz5] This is hardly fair.

The time is arbitrary. I say give it six months before considering making changes.

How do we assess performance? Hmm, that's a difficult one. We could measure citizens' confidence in the decisions of the judiciary, we could seek comments from the 'customers' of the judicial system (though the winning and losing sides will inevitably be partial). I can't immediately think of any other metric than 'public opinion' though I recognise that might not be a reliable guide.
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Post by Ashcroft Burnham »

I entirely agree with Pat. Any criticisms of a system that I have spent hundreds of hours designing based on unfounded speculation is manifestly unfair.

In addition to Pat's public opinion metric, there are two other useful ways of measuring success: (1) using the PJSP to write a comprehensive report after a comprehensive evaluation; and (2) seeking the opinion of outside experts. In both cases, the important issue is [i:1lw1db0c]informed[/i:1lw1db0c] opinion.
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Post by Beathan »

Well, certainly, we should test out the Judiciary as it exists now insofar as it exists and insofar as matters concerning the management of the judiciary and the appointment of judges have been decided by the CDS as a community (as opposed to any single member of the CDS acting alone, under real, disputed, or apparent authority, or otherwise).

That said, we can run the Justice System on the Soothsayer rules. We can run it with our current judge as the single judge. The Soothsayer rules are the current rules -- so they are the rules that should be tested. The processes and standards for appointment of judges have not yet been settled, so it makes no sense to say that we should "test" those standards. This prejudges the issue. To test as yet nonexistent or unsettled standards would require that we first establish and settle those standards, which is a matter that is appropriate for debate.

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Our flawed judiciary

Post by Publius Crabgrass »

[b:3ei8ikkh]Our flawed judiciary[/b:3ei8ikkh]

I am posting this here, on agenda item 1, but it really applies to most if not all of the agenda items.

Ashcroft and others argue that this Commission is premature, that the legal system should be given a chance to prove itself. I suggest that the system has already had two and maybe even three key tests, and has failed them. First, and I’ll discuss this in more detail a little later, the system has allowed one person to make nearly all of the initial decisions ranging from the important, such judicial qualifications, down to the trivial, such as design of judicial robes. This devolution of authority to one person has undermined public confidence in the system. Even if those who lack confidence in the system can be fairly termed as only a “vocal minority” (and this Commission is an attempt to gauge the size of that minority, or perhaps majority), the number of voices raised has convinced me that the judiciary is held in disrepute by too many of our fellow citizens.

Second, the system has failed the important test of establishing a simple and usable set of Code of Procedure, though the RA is trying to correct this imbalance by passing a much more user-friendly set of Rules. As some have pointed out, though, the RA’s rules may have swung the pendulum too far toward simplicity, leaving out such matters as how to appeal final judgements to the SC. But the Code issued by the Judiciary was amazingly detailed, stupefyingly long, and, as has been discussed on the forum ad nauseam, makes a number of policy decisions better left to the political process.

In constructing those 125 plus pages of procedures, when a choice was to be made in nearly every instance Ashcroft chose the UK model as the “better” one. Examples range from the English “loser pays” rule on attorney fees, cross-examination rules, allocation of burden of proof, the names for various court forms/“precedents” (e.g. Notice in the Ordinary), the “High Court”, judicial robes, bowing, the witness box, design of the courtroom, etc. It seems that only wigs have been omitted. One can hardly fault Ash for choosing the model with which he is most familiar. But the outcome would be greatly improved if these decisions were made by more than just one person. Why must Anglo-American judiciaries be our model? What about other systems, or experimenting with our own unique SL systems? I seem to remember reading that China had (and maybe still has) a court consisting of three judges - the presiding judge who is legally trained, and two citizens. I am sure our multinational citizenry can provide other options, and WORKING TOGETHER, we can build a better mousetrap. Why walk when you can fly? Why have witnesses stand in a box when they can fly? Let us be more creative.

The system has also failed the test as to selection of judges, through a combination of design defect and improper implementation. The blame for these design defects can be placed with the architect (Ash) as well as those who approved the plans (the RA). First, it is too much power for one person to be the gatekeeper for the judiciary, and gives too much temptation to that one person to only allow those with whom agrees to pass through the gates. Moreover, those gates were constructed in the form of a maze: an unduly burdensome exam requiring several thousand words in reply, and no effort to validate the exam. The first response to the qualifying hurdle was that no one would jump, and after an extension it seems a couple of hurdlers have attempted it but may have been expressly imported for that purpose. The design flaw here is that judges (or especially only one judge) should not be charged with the task of qualifying those who would join the bench.

Events of recent weeks have also convinced me that lifetime tenure for judges is inappropriate. We may find that a judge does not possess the required judicial temperament, and it should be easier to remove such a judge other than through the sledgehammer of impeachment. Rotating judicial terms would also allow more of our citizens to participate in the process.

I think the system is flawed, but can be repaired. I do not support wholesale repeal, though a constitutional amendment imposing a moratorium while we work on a better system may make sense. Justice has proposed the skeleton of a workable system http://forums.neufreistadt.info/viewtopic.php?t=599 and I think that could be the framework for developing a better judicial system.

I suggest that when it is time for the Commission to make recommendations, it consider the following in order: first, whether to do nothing. If a majority votes for that option, then your work is done (except for any dissenting opinions to be submitted). Second, vote on whether to recommend repeal, because again, if a majority votes for that option, the commission’s work is done (except for dissents). However, I don’t think either of those extremes will gather a majority.

So I will suggest some alternatives that are in the middle.

1. KISS - keep it simple, stupid. This means that the constitutional provisions should be short, establishing the judiciary. Make the rest simple legislation, so it is easier to change if we find that this experiment needs modification.

2. Change the judicial qualification process. The current method attempts to quantify the unquanitifiable, judicial skill. Or put another way, it tries to impose purportedly objective standards on the subjective question of whether someone is qualified to be a judge. The result has been that only those with RL legal training have any interest, and I think we would be better served if we had some citizen judges who have common sense but no legal training. SC appointment and RA confirmation would be a fine alternative to electing judges, but I support either method over the current scheme, especially if we eliminate lifetime appointment.

3. Change the terms of judges. Six months is a lifetime in SecondLife.

4. Establish an intermediate appellate court between the trial judge and the SC. Ashcroft has said that I have the power to do this myself by increasing the number of courts to two, but I’d like to hear public input before I do so.

5. Let the judges suggest the rules, but make them subject to RA approval

6. Wait before introducing jury trials

7. Keep the judicial system free and easy to use. Let us have a judicial system that anyone can navigate without the assistance of a lawyer, and at no cost to themselves. If we develop such a system, I think we will quickly find that it will be used by citizens and non-citizens alike, for SL has been a pretty lawless place. SL commerce will really only take off if there is a system for the rule of law, but it needs to be a legal system designed with the unique needs of SL residents kept in mind.

I will also anxiously await the suggestions of my fellow citizens.
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We must test by hearing cases.

Post by Pelanor Eldrich »

[quote:2girc0o8]1) Test of the Judiciary Act
1. Can we fairly assess the Judiciary Act without first letting it run
through some cases? If we want a "trial run", how long should it be?
How do we assess performance of the judiciary?[/quote:2girc0o8]

No, we must test the JA and the procedures by hearing a number of different cases. These include Courts of Common Jurisdiction as well as the Court of Scientfic council. More than one procedure should be tested. I recommend running at lease one case with the Judiciary's first draft, as well as a case using the newly adopted RA procedural code. In addition, the Arbitration Bill should be passed and we should watch the outcome of an ADR/Arbitration style resolution.

I am willing to put my money where my mouth is and have filed three non-trivial cases. One case may involve use of the Court of Scientific Council. The two others use the Court of Common Jurisdiction. I urge my fellow citizens to file cases using ADR or the courts in order to properly test and evaluate the system.

I believe a six month run would give us some good comparitive data as well as the necessary experience to modify the system as needed. The performance should be judged (in order of priority) by those who use it, the citizenry at large, outside interested parties of note (e.g Anshe, Desmond, LL, Prok, SL Chamber of Commerce) and outside legal professionals.

The final product of the JA, as designed, is case judgements. The true test is whether these case judgements meet the following (in order):

-Are they fair and just?
-Are they binding?
-Are they consistent?
-Are they fast?

These are what I look for in conflict resolution as a service oriented business person.

I must remind folks that the RA passed the Judicary Act unanimously *3* times. The act was ruled constitutional and was never vetoed by the Chancellor. Therefore at the time, there was consensus around the design of the system. Some opponents of the JA simply were not CDS citizens when the compromises were reached. Much of the current debate centers around the implementation of codes of procedures. Therefore the implementation must be tested, ideally in some kind of scientific fashion.

I am happy to serve as test pilot to further that goal. As any good test pilot, I am happy to test fly different craft (procedures). It is possible that I'm Howard Hughes and this is the Spruce Goose. With any luck as Chuck Yeager, we'll break the conflict/trust barrier on our first flight. Only flying it will let us know for sure.
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Post by Dianne »

[quote="Ashcroft Burnham":y80ehxuf]I entirely agree with Pat. Any criticisms of a system that I have spent hundreds of hours designing based on unfounded speculation is manifestly unfair.... .[/quote:y80ehxuf]I disagree with this statement.

If you take out the personal, pejorative segments it reduces to:

[quote="Ashcroft Burnham":y80ehxuf]I entirely agree with Pat. Any criticisms of a system ... based on ... speculation is ... unfair.[/quote:y80ehxuf]

And that makes no sense at all. :)
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Re: We must test by hearing cases.

Post by Aliasi Stonebender »

[quote="Pelanor Eldrich":1jbdg8zx]
I must remind folks that the RA passed the Judicary Act unanimously *3* times.
[/quote:1jbdg8zx]

Under threat of action by the SC if they didn't, the last two times, so those hardly count.
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Re: Our flawed judiciary

Post by Dianne »

[quote="Publius Crabgrass":1p6iys1s]... Why must Anglo-American judiciaries be our model? What about other systems, or experimenting with our own unique SL systems? I seem to remember reading that China had (and maybe still has) a court consisting of three judges - the presiding judge who is legally trained, and two citizens. I am sure our multinational citizenry can provide other options, and WORKING TOGETHER, we can build a better mousetrap. Why walk when you can fly? Why have witnesses stand in a box when they can fly? Let us be more creative....[/quote:1p6iys1s]

I would just like to highlight this part of your post as it is so close to what I believe and so far I thought I was completely alone in this view.

I for one do not see the value in implementing a huge US or UK style Judiciary in the CDS and I don't think there is a need for it. Why indeed do we need this ungainly and immense system?

I came to (originaly Neualtenburg) because I was interested in virtual government, yet in the last few months we have transformed the innovative, quirky set-up we had into nothing more than a Western style, Executive led, House dominated system. Now we are tacking on an immense Judiciary that may or may not be controllable.

How completely unimaginative! How completely unnecessary! Is this the best we can do is to imitate to the letter the ponderous RL systems we all know so well?

Is it really relevant to a small village community to enact a political system more suited to organising a state legislature or to put in place a judicial system that mimics the legal needs of an entire nation? We are at best a small tribe of folks living in a virtual ancient village. How about something more relevant to ourselves and our community?

Here's a thought for an interesting innovative Judicial system...

Let's take some of the elder members of our city and set them up as "judges" of a sort (since they know the most about the system and the history of the town and past precedents etc.), we will call this council of elders the "Scientific Council." As long as the people chosen are all decent, intelligent folks and as long as there is a way to get rid of one of them (or all of them) if they get out of hand, it should work rather well. ;)
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Post by Beathan »

I wholeheartedly agree with Dianne and Publius on this point. I also want to note that the UDHR at Article 12 requires

[quote:3ltk56k7]1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. [/quote:3ltk56k7]

I think basing our justice system on any RL nation's system threatens to deprive CDS citizens of their nationality. Further, to do so basedon the argument that we need something -- and this system is something -- is just the kind of arbitrary deprivation that is prohibited.

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Post by Ashcroft Burnham »

[quote="Dianne":29tzy8qa]
If you take out the personal, pejorative segments it reduces to:

[quote="Ashcroft Burnham":29tzy8qa]I entirely agree with Pat. Any criticisms of a system ... based on ... speculation is ... unfair.[/quote:29tzy8qa]

And that makes no sense at all. :)[/quote:29tzy8qa]

It makes perfect sense: criticism that is founded on nothing but speculation [i:29tzy8qa]is[/i:29tzy8qa] unfair, in the sense that it is groundless and capricous. What is unclear about that?
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Post by Patroklus Murakami »

[quote="Beathan":2rxx3f23]I wholeheartedly agree with Dianne and Publius on this point. I also want to note that the UDHR at Article 12 requires

[quote:2rxx3f23]1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. [/quote:2rxx3f23]

I think basing our justice system on any RL nation's system threatens to deprive CDS citizens of their nationality. Further, to do so basedon the argument that we need something -- and this system is something -- is just the kind of arbitrary deprivation that is prohibited.

Beathan[/quote:2rxx3f23]This rests on a number of questionable assumptions. First of all, you assume that our justice system has been based on one RL nation's system. While it is clear that it borrows very heavily from the English court system, it also borrows concepts that might best be described as Anglo-American.

Furthermore, you suggest that this threatens to deprive CDS citizens of their RL nationality. This piece of hyperbole deserves some unpicking. When someone is deprived of their nationality they are stripped of their passport, exiled to a foreign land and denied contact with their family and friends in their home country. And you compare such an appalling abuse of human rights with a democratically-agreed decision, passed after full consideration and extensive debate? The allegation really is quite remarkable, and ridiculous. No one's nationality is threatened here, arbitrarily or otherwise. Unless you consider 'not getting your own way' to be a threat to your nationality?
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Re: Our flawed judiciary

Post by Patroklus Murakami »

[quote="Dianne":2jt63imn]Is it really relevant to a small village community to enact a political system more suited to organising a state legislature or to put in place a judicial system that mimics the legal needs of an entire nation? We are at best a small tribe of folks living in a virtual ancient village. How about something more relevant to ourselves and our community?[/quote:2jt63imn]Well, how about something more relevant to our needs as we grow? What if, instead of two sims and 70-80 citizens, we had 2000 and nearer 100 000? Why not 'think big?' I take your point that we could have tried something more imaginative, we could have had a lot of starting points. But we are where we are after a considerable effort. Should we really junk all that because we could have done things differently?

[quote:2jt63imn]Here's a thought for an interesting innovative Judicial system...

Let's take some of the elder members of our city and set them up as "judges" of a sort (since they know the most about the system and the history of the town and past precedents etc.), we will call this council of elders the "Scientific Council." As long as the people chosen are all decent, intelligent folks and as long as there is a way to get rid of one of them (or all of them) if they get out of hand, it should work rather well. ;)[/quote:2jt63imn]But it didn't, did it? The Ulrika trial wasn't a 'disaster' or a 'fiasco' but it was critically flawed and it didn't exactly cover us in glory. It's a good argument for designing the kind of judicial system we now have.
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Post by Dianne »

[quote="Ashcroft Burnham":2bngmpc1][quote="Dianne":2bngmpc1]
If you take out the personal, pejorative segments it reduces to:

[quote="Ashcroft Burnham":2bngmpc1]I entirely agree with Pat. Any criticisms of a system ... based on ... speculation is ... unfair.[/quote:2bngmpc1]

And that makes no sense at all. :)[/quote:2bngmpc1]

It makes perfect sense: criticism that is founded on nothing but speculation [i:2bngmpc1]is[/i:2bngmpc1] unfair, in the sense that it is groundless and capricous. What is unclear about that?[/quote:2bngmpc1]

Speculation is merely the act of speculating, it is neither (necessarily) subjective or groundless. I know in terms of a court situation it is a dirty word but in reality it is just what people do all day long.

I look in the sky and see tiny lights... I [b:2bngmpc1]speculate[/b:2bngmpc1] that they might be things like the sun I see in the daytime, but much further away.

To be fair, I took out the word "unfounded" which you had had in front of "speculation," but to me that was a colouration on your part that itself was unfounded. If you think that the speculation in question is groundless or unfounded then provide the argument or the proof of same. Attack the argument not the act of speculation. Other people can look at your ideas and have valid counter ideas or speculate that things might work better in some different fashion.

The very fact that you included in your original post the qualifier [i:2bngmpc1]"... a system that [b:2bngmpc1]I have spent [/b:2bngmpc1]hundreds of hours designing.."[/i:2bngmpc1] is itself an indicator of the emotional and personal nature of your argument as opposed to any factual disagreement you may have with the criticisms leveled.

I took offense to your post because it seemed silly. It seemed like you were arguing that merely because you personally had spent a long time thinking things up, that any argument against your ideas or any other ideas that didn't agree with you were not to be allowed. You used the term "manifestly unfair" which implies a kind of self-evident "wrongness." i.e - only a fool would not see the unfairness etc.

Probably you meant nothing of the sort and all this talk about it is a waste of time, but that's how it sounded to me when i read it.
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Re: Our flawed judiciary

Post by Dianne »

[quote="Patroklus Murakami":1ru909ce]Well, how about something more relevant to our needs as we grow? What if, instead of two sims and 70-80 citizens, we had 2000 and nearer 100 000? Why not 'think big?' I take your point that we could have tried something more imaginative, we could have had a lot of starting points. But we are where we are after a considerable effort. Should we really junk all that because we could have done things differently?[/quote:1ru909ce]Probably not.

My feeling (and I could make a long argument to support it that I just can't write right now), is that what we had would have sufficed for a very long time to come. I am not adverse however to a severe modification of the Judicial act as opposed to it's scrapping. I have bigger problems with the disolution of the AC (and soon the SC), and the general trend towards American or "Western" style government.

[quote="Patroklus Murakami":1ru909ce]But it didn't, did it? The Ulrika trial wasn't a 'disaster' or a 'fiasco' but it was critically flawed and it didn't exactly cover us in glory. It's a good argument for designing the kind of judicial system we now have.[/quote:1ru909ce]I disagree that it was "critically flawed" but in answer to this I would throw back your own comments on another thread.

I am paraphrasing, but you essentially argued for a testing period for the new Judiciary before we threw it out. Others said that it had in fact failed a couple of tests, but the point is one could easily argue that the "old" system wasn't given a chance either. We really only had the one "trial" (Ulrika) that was forced on us from outside by a terrorist griefer. We had no established procedures, the complainant was not a citizen, nor were they "in custody" nor did they provide any security deposit as Ashcroft has wisely suggested.

In essence, we made it up as we went along and I think we did a fabulous job and that the majority of the criticism after the fact is IMO unfounded in itself.

Rather than use this as an opportunity to beef up our procedures and have a discussion about what to do about the state of affairs however, we have essentially thrown out the SC and put in an entirely new (untested) system, namely the new Judiciary.

Is it likely that Ulrika will come back? Or that anyone would be so mean and personally attached to our project as to provide another trial of such magnitude? Should we have even had a trial in the first place anyway? I think the answer is no to both questions. I think that for the foreseeable future, there is not really a need for a criminal law system in the CDS complete with police, juries, jails, etc.

I think I am going to read up some more before I comment much further however.
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