Agenda item 2: Complexity

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Post by Beathan »

Oni --

With regard to my parallel civil (code)/common law development, from a background in customary law, position, I agree that what I am describing is just what common law is iRL. I personally favor common law as providing flexibility that is not provided by the civil law -- and I favor flexibility.

I do disagree that the conflation of criminal and civil (private) law has never been tried iRL. This is exactly what the Anglo-Norse weregeld system of thing justice was. It is prehistoric, perhaps, but not unprecedented -- even in the English justice system.

My concern is that we have a developed state, which presumably has the interest of all developed states in keeping its own peace. I take as a general rule that every crime (at least every crime that is not a "victimless" crime) is also a tort -- the only difference is who the plaintiff is and what harm the plaintiff suffered. I think we lose something by conflating crimes and torts -- we either lose the remedy for the victim or the remedy for the state. I think that there is good reason to preserve the distinction, even if we choose to load our system in favor of torts rather than crimes (in favor of private citizens rather than the state).

The other big problem I have is, English or not, the system as currently proposed through the JA and the Ashcroft Code is far too detailed. It makes decisions that I don't think we have enough information to make yet (at least not make rationally yet), and then forecloses the possibility of gathering that information by closing the issues. I agree that there will be something hard in actually finding out what works and what doesn't -- and what works best of the things that work -- but I think that this is work we should not shirk. Bright line rules might be easier in the short term -- but we lose the benefit of ensuring that the bright line rules we set are the right ones, the ones we truly want, if we just set them.

(Also, just as an aside, many African countries are civil law countries -- those colonized by civil law countries tend to be. That said, most African countries are becoming less like the countries that colonized them and more like what they were before the Imperial era, while keeping some concepts and structures from Imperial rule. This hybridization process -- which we also see in native governments in the Americas and Australia -- is very exciting. We are increasingly seeing combinations of Custom, common law, civil law, and Sharia, in various permutations, emerging and working as justice systems throughout the world. My point is that, if we look anywhere for guidance, we should look to places where there is a mixing and hybridization of multiple cultural forces into a single system -- because that is exactly what we are facing here on SL and in the CDS.)

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Post by Oni Jiutai »

[quote:23dpkdj5]It makes decisions that I don't think we have enough information to make yet (at least not make rationally yet), and then forecloses the possibility of gathering that information by closing the issues.[/quote:23dpkdj5]

You see, here I think we may have our true point of contention.

Firstly, I believe that when Ash says this is a essentially a working draft which he expects will change he's telling the truth. Other people say this too and a believe them as well.

Secondly, I think even if he / they were lying through their teeth, it wouldn't matter because he / they don't control the system. The RA can self evidently change the system - and indeed have, most recently by changing the procedures. That's the whole point of checks and balances.
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Post by Ashcroft Burnham »

[quote="Beathan":2rsgyaqs]My concern is that we have a developed state, which presumably has the interest of all developed states in keeping its own peace.[/quote:2rsgyaqs]

We have a developed state, but should have a primative judicial system? Why do you say that?

[quote:2rsgyaqs]I take as a general rule that every crime (at least every crime that is not a "victimless" crime) is also a tort -- the only difference is who the plaintiff is and what harm the plaintiff suffered. I think we lose something by conflating crimes and torts -- we either lose the remedy for the victim or the remedy for the state. I think that there is good reason to preserve the distinction, even if we choose to load our system in favor of torts rather than crimes (in favor of private citizens rather than the state).[/quote:2rsgyaqs]

I do not for the life of me understand what precisely you think that will be lost. The current system that we have allows anybody to bring a prosecution, and at the same time claim for her or himself or any other person a remedy, and ask the court to impose a penalty. Both may be done at once. The prosecutor may either be an agent of the state, prosecuting on behalf of the state (such as a marshal of the peace), or a person who believes that he or she has been wronged by the alleged wrongdoing. In eitehr case, the court would be able to award compenstion (etc.) to the victim(s), and a make a penal order against the wrongdoer. Since both the purposes of punishment and remedy are served, what do you think can be lost?

[quote:2rsgyaqs]The other big problem I have is, English or not, the system as currently proposed through the JA and the Ashcroft Code is far too detailed. It makes decisions that I don't think we have enough information to make yet (at least not make rationally yet), and then forecloses the possibility of gathering that information by closing the issues. I agree that there will be something hard in actually finding out what works and what doesn't -- and what works best of the things that work -- but I think that this is work we should not shirk. Bright line rules might be easier in the short term -- but we lose the benefit of ensuring that the bright line rules we set are the right ones, the ones we truly want, if we just set them.[/quote:2rsgyaqs]

Detailed rules are easier in the long-term, too. But I am glad that you accept, finally, that detailed rules make things easier, rather than harder, which is what I have been arguing all along. Do you also, therefore, accept that apparently complicated detailed rules are actually simpler in operation than apparently simple vague rules? In any event, you are only speculating that our details are the wrong details. Do you have any specific reasons to believe that in relation to any of the particular details? If not, without practical experience of the system in operation (that you seem to want to foreclose at every opportunity), how can you reach the general conclusion except through the specific premises?

Further, it does not make any sense to say that using any given set of detailed rules prevents one from discovering which set of detailed rules works the best: indeed, the one thing that is guarunteed to prevent one from ever establishing which set of detailed rules work the best is to have no detailed rules, which is exactly what you propose. In any event, it does not make any sense to say that setting detailed rules makes it impossible to get the right detailed rules: aside from the possibility (which you must accept that you are in no position to refute) that the starting detailed rules are the right ones, if any problem in the detailed rules emerges in practice, it can be spotted and addressed: by the judiciary or the PJSP or the legislature.

What you seem to want is not a workable system both now and in the future, but a neverending testbed of procedures, in which the priority is not helping litigants to resolve their problems, but finding out what rules work the best.

The irony is that what you suggest is incapable of acheiving that in any meaningful way, because, as I have pointed out before, one can only test any given set of detailed rules by having those rules, and only those rules, as [i:2rsgyaqs]the[/i:2rsgyaqs] rules of a judicial system for a substantial period of time: testing any given detailed rule in isolation against a background of vagueness, or a system where rules have to be agreed, is simply not testing the same thing. You are claiming that an options are being foreclosed by not having vague rules, but the reality is that just as many options are being foreclosed by having them. What we need to ask ourselves is, not what will make the best experiment, but what will work the best for our litigants.

Incidentally, it is not true to say that, if our court system has fixed rules, there will be nowhere to try other rules: there is always arbitration. No dobut you know about the Arbitraiton Bills that are up for consideration by the legislature. They will enable all sorts of wild and wonderful procedures to be tested by consenting guinea-pigs, whilst leaving the courts, the compulsory default option, with a set of reliable procedures that even you now accept will be better at least in the short-term. If any set of rules proves itself in arbitration to be so fantastically wonderful that it solves all known problems with litigation (or something of the sort), then they can, of course, then be adapted as rules of court. Surely you would agree that that means that we get the best of both worlds: experimentation in arbitration for the long-term, and stable rules in the courts that work better in (at the very least) the short term.

[quote:2rsgyaqs]My point is that, if we look anywhere for guidance, we should look to places where there is a mixing and hybridization of multiple cultural forces into a single system -- because that is exactly what we are facing here on SL and in the CDS.)[/quote:2rsgyaqs]

We should not assume that the mix will be the same, nor that people will want to cling to their cultures as much as they do in the first life: SecondLife, is, after all, as you have written yourself many times, a place to be different. Why not in culture, too?
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Post by Beathan »

Oni --

It's not a matter of Ash lying or being unwilling to change his Code. It's a matter of established rules. You yourself have argued that the mere fact that a rule is established places an extra burden on people proposing alternatives. I think that this is true. For this reason, I don't want to establish any rule until we have tested multiple alternatives and have learned, at least in general, which alternative works best.

It is easier to get things right after experimenting than it is to build something and then try to fix it based on how it runs. No one builds a complicated machine (like a fighter aircraft, for example) without testing and running prototypes -- no matter how willing the plane manufacturer is to make changes later.

We need to start with simple and noncontroversial rules and give people and judges felxibility to try out multiple options in given cases. Based on this experience, we will learn what works -- and we will then, and only then, be able to rationally fill in the details. This is true regardless of how much faith we have in Ash's honesty. I have no reason to doubt Ash's honesty, but I still think I have every reason to doubt the wisdom of establishing any justice system with the level of detail he is attempting here.

Ash --

I have never argued that having simple, general, nonspecific rules makes it easier to administer any given case. I have alrgued that having such rules makes it easier to adapt to particularities in any given case (such as cultural similarities and differences of the parties). I still believe this, and for this reason I think we might find that we want to keep our rules general. However, I also think that we might find that we don't want to keep our rule general -- and might want to fill in the details. In such case, the experimentation that we were able to do under the general rules will give us better reason to accept and decide on specific choices we make when filling in the details and setting the procedure. At the moment, the only basis we really have for the detail choices you made in your Code is your personal preference. Ash's aesthetic -- like watery tarts throwing swords -- is not a good basis for making choices about the exercise of power (in this case, judicial power). I am not advocating as an enduring principle that we should have unending experiment without end -- although we might find that we such a system actually works, in which case we would have discovered good reason to keep it. Rather, I am advocating that we have good reason for choosing the procedural details of our system -- and "Ash likes it" or "It works in England" are not good reasons for setting the details of a CDS justice system.

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Post by Ashcroft Burnham »

[quote="Beathan":mamdavaa]The other big problem I have is, English or not, the system as currently proposed through the JA and the Ashcroft Code is far too detailed. It makes decisions that I don't think we have enough information to make yet (at least not make rationally yet), and then forecloses the possibility of gathering that information by closing the issues.[/quote:mamdavaa]

Incidnetally, on this point, were you not only a week or two ago arguing that you had all the information that you needed to declare that the present system was incapable of working at all, and it was as obviously unworkable as a, in your own exact words, "lead zepplin"?
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[quote="Beathan":2rqq6t8n]It is easier to get things right after experimenting than it is to build something and then try to fix it based on how it runs. No one builds a complicated machine (like a fighter aircraft, for example) without testing and running prototypes -- no matter how willing the plane manufacturer is to make changes later.[/quote:2rqq6t8n]

So you want all of our litigants for the foreseeable future to be guinea-pigs to your masterplan of building what you think will be the Perfect Legal System, rather having their problems resolved in the best way that we can now, as well as in the future?

[quote:2rqq6t8n]We need to start with simple and noncontroversial rules and give people and judges felxibility to try out multiple options in given cases.[/quote:2rqq6t8n]

Is that how you think that a new aircraft is designed? By starting with a microlight and slowly adding bits? Or do you think that it starts with some detailed plans that are refined when the detailed prototypes are tested in practice exhaustively?

It is becoming clearer and clearer that, despite your claims to the contrary, you really are an experimenter, not an organiser.
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Post by Beathan »

Ash --

I have all the information I need to judge that your system is a bad system. I do not yet have all the information I need to draft a fully detailed system to replace your system with any assurance that my system will be a good system. In my opinion, you are in the same epistemological boat as I am. Neither of us has the information we need to develop the kind of system you want. Given that, I propose that we get that information by developing a test protocol and provisional justice system -- with the goal of using the information we gather to perfect the system when we can do so with confidence. You seem to want to charge off into the night (that is your justice system) yelling "Tally-ho." I think that this is unwise.

With regard to designing aircraft, or other things, a large part of my job involves working with engineers in designing complicated structures and products -- or with criticizing design decisions after the fact. I assure you that it would be malpractice for any engineer to design anything the way you describe. I would have a lot of fun taking that deposition -- and no fun at all defending it. Every structure or product must be designed from scratch -- and every decision must be completely justified within the context of the specific project. It is never a good answer to say, "that's our standard design" or "I just copied that from this other project" without providing some compelling reason why it fits the current project with exactness.

Further, I would rather have litigants be guineapigs in the short-term, while we perfect our system, then doom all litigants to be guineapigs forever in your misconceived system. I want to get things right as soon as possible, not get things wrong right now.

With regard to your experimenter/organizer distinction -- I have told you that I think it is misconceived. I want to experiment until I have the information I need to build something, and then I want to build it and run it, with an eye to improving it in use. We are not yet at the organization stage with our judicial system. It is not wise to skip the experimental stage out of mere impatience. Buildings collapse and planes crash when designed that way -- and then I get involved and charge people far too much per hour.

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Post by Ashcroft Burnham »

[quote="Beathan":3ir3ssfm]I have all the information I need to judge that your system is a bad system. I do not yet have all the information I need to draft a fully detailed system to replace your system with any assurance that my system will be a good system.[/quote:3ir3ssfm]

If you do not have enough information to judge whether any given detail is the right one (as you must have meant when you wrote,

[quote:3ir3ssfm]The other big problem I have is, English or not, the system as currently proposed through the JA and the Ashcroft Code is far too detailed. [b:3ir3ssfm]It makes decisions that I don't think we have enough information to make yet[/b:3ir3ssfm] (at least not make rationally yet), and then forecloses the possibility of gathering that information by closing the issues,[/quote:3ir3ssfm]

(emphasis mine)), how is it conceptually possible for you to have enough information to judge that the particular details that I have chosen are wrong? In realation to each detail, what is that information, and how does it show that each such detail is wrong, exactly?

[quote:3ir3ssfm]In my opinion, you are in the same epistemological boat as I am. Neither of us has the information we need to develop the kind of system you want. Given that, I propose that we get that information by developing a test protocol provisional justice system -- with the goal of using the information we gather to perfect the system when we can do so with confidence. You seem to want to charge off into the night yelling "Tally-ho." I think that this is unwise.[/quote:3ir3ssfm]

Given that you now accept that having detailed rules makes things easier at least in the short term, why is it not unwise to force our whole population to be guinea pigs, and have things more difficult, when we can set it up so that only those who consent to arbitration have to be?

[quote:3ir3ssfm]With regard to designing aircraft, or other things, a large part of my job involves working with engineers in designing complicated structures and products -- or with criticizing design decisions after the fact. I assure you that it would be malpractice for any engineer to design anything the way you describe.[/quote:3ir3ssfm]

By not starting with a microlight and adding bits?

[quote:3ir3ssfm]I would have a lot of fun taking that deposition -- and no fun at all defending it. Every structure or product must be designed from scratch -- and every decision must be completely justified within the context of the specific project. It is never a good answer to say, "that's our standard design" or "I just copied that from this other project" without providing some compelling reason why it fits the current project with exactness.[/quote:3ir3ssfm]

So why are you proposing to use your arbitration "standard design", then?

[quote:3ir3ssfm]Further, I would rather have litigants be guineapigs in the short-term, while we perfect our system, then doom all litigants to be guineapigs forever in your misconceived system. I want to get things right as soon as possible, not get things wrong right now.[/quote:3ir3ssfm]

But you have said that you do not have enough information to decide what is right and wrong: how can you say that our existing rules and the original code of procedure is not just the right set of rules?

In any event, you admitted that detailed rules are easier "in the short term". Why should litigants have to put up with more difficult rules in the "short term" (you give no clear idea of when you imagine that short term ending) while our courts are used as a giant experiment in procedures?

[quote:3ir3ssfm]With regard to your experimenter/organizer distinction -- I have told you that I think it is misconceived.[/quote:3ir3ssfm]

I know that you have, but you place yourself ever more in the experimenter camp despite your opinion on the matter.

[quote:3ir3ssfm]I want to experiment until I have the information I need to build something, and then I want to guild it and run it, with an eye to improving it in use.[/quote:3ir3ssfm]

Why don't you go and experiment somewhere else, and leave the real litigation to the set of people who believe that they have a system right now that is substantially workable, if inevitably not perfect?

[quote:3ir3ssfm]We are not yet at the organization stage with our judicial system.[/quote:3ir3ssfm]

Organisation is not a stage: it is a goal.

[quote:3ir3ssfm]It is not wise to skip the experimental stage out of mere impatience. Buildings collapse and planes crash when designed that way -- and then I get involved and charge people far too much per hour.[/quote:3ir3ssfm]

You still have not told us what sort of disaster that you imagine befalling us if the current system, with the original procedural rules, are used, and your experiment is not. Indeed, given that you have admitted that not having detailed rules will be more difficult in the short term, are you not forced to admit that there will be an even greater disaster if your proposal is used?
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Post by Beathan »

I wrote [quote:25np66ud]
Ash, in the United States, our courts recognize (at least, perhaps, until Bush v. Gore in 2000) just this sort of limitation. It is called the "political question doctrine." It is a doctrine that characterizes some disputes as raising the kind of questions or issues that are best resolved by the democratic political process, rather than by judicial action. In such cases, our courts do say, "Sorry, we can't resolve that -- take it up with the Legislature or by election." This doctrine is absolutely necessary to preserve and protect democratic rule from the potential power of a court system -- and I do not see how any democracy is safe without just this sort of check on the judiciary.
[/quote:25np66ud]

In response, Ash wrote

[quote:25np66ud]Presumably, unless the US judicial system is even more insane than I had hitherto imagined, the court does not say "We can't decide what to do here - the case is adjourned for ever": it decides the case against whoever brings the action in the first place. That is a resolution of a dispute: in favour of the person against whom the case is brought, and it is a resolution of a dispute in accordance with a rule no doubt developed by the common law in the usual way. [/quote:25np66ud]

I don't know if Ash will consider this insane or not -- but the classic case on the political question doctrine had the following facts (if I remember rightly): two parties ran slates of candidates for state government (I think it may have even been a state constitutional convention). The parties each counted the votes differently, based on different theories of enfranchisement. In the words of Al Gore, there was no binding legal authority on the issue. Each side claimed victory and tried to seat its delegates. An impasse ensued. They sued each other -- each seeking affirmative relief from the courts, specifically a court order affirming their respective position and recognizing their delegates as the proper delegates.

It was this very order that the court refused to issue -- [i:25np66ud]for either side.[/i:25np66ud] The court ruled that it was not going to issue an order because the determination of an election is a political question that the court is not properly able to decide. This is not a "defendant wins because plaintiff fails to prove its case" result. This is a "neither side wins" result that left both sides in the same position they were in before the case -- and left neither side knowing who the representatives to the constitutional convention were.

I think that the matter was resolved by a revote with new, clear procedures imposed by Congress on the voting. I assert that both the court's refusal to step in -- and the ultimate resolution of the case -- [i:25np66ud]were right and proper results[/i:25np66ud].

Further, we do have similar processes regarding stays of proceedings or even abstention from hearing a case. It is not uncommon for a Federal matter to turn on an undecided point of state law or to implicate some important local or state policy -- and we have a process under which the Federal court can stay its proceedings while referring the question to the state for resolution, only taking up the proceeding again when the question is answered. Sometimes, rather than stay the case, the Federal court simply refuses to hear it -- even though it is an otherwise proper Federal case. This means that the Court effectively adjourns the case indefinitely.

I believe that Justice actually teaches a federal procedure class -- so he can fill us in on the details of Younger abstention, Pullman abstention, Burford abstention, Thibidoux abstention, Colorado River abstention, and the effects of the Eleventh Amendment if we really want to be traumatized by these issues. All these doctrines developed because the U.S. has both a Federal system and a state system -- both of which deserve respect. However, we will be in exactly the same boat if we try to decide cases involving nonCDS citizens -- or disputes involving sims and people outside our jurisdictional and cultural reach.

In any case, American courts, especially Federal courts, have a long and well-developed case law that provides for the very outcome that Ash says is not a possible outcome of a court case -- the court's saying "sorry, I can't decide that."

Notably, these doctrines all apply based on the facts of the case (with the possible exception of the Eleventh Amendment, which is based on the kind of case -- the parties involved in the case). Thus, this kind of abstention applies even if the parties to the case are properly before the Federal Court -- or if the case, in abstract form, appears a proper case. In fact, the abstention doctrines don't apply if the court lacks jurisdiction -- the case gets thrown out for lack of jurisdiction, rather than on an abstention analysis. Therefore, this kind of concern is not answered by Ash's list of cases his courts would hear.

[quote:25np66ud]
* Disputes between our government and anyone;
* disputes between citizens and each other;
* disputes between citizens and non-citizens;
* disputes concerning the assets of the CDS, including all public spaces;

(all as relate to conduct that is at least partly in-world conduct), and additioanlly:

* disputes concerning CDS forum moderation.

[/quote:25np66ud]

Each of these kinds of cases could well present political questions that the court should not decide. Further, each of these kinds of cases could present factual issues that a CDS court should not hear (just as abstention cases frequently present state issues that a Federal court should not decide, but should leave for resolution by the states).

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[quote:1jmth0o0]I don't know if Ash will consider this insane or not -- but the classic case on the political question doctrine had the following facts: 2 parties ran slates of candidates for state government (I think it may have even been a state constitutional convention). The parties each counted the votes differently, based on different theories of enfranchisement. In the words of Al Gore, there was no binding legal authority on the issue. Each side claimed victory and tried to seat its delegates. An impasse ensued. They sued each other -- each seeking affirmative relief from the courts, specifically a court order affirming their respective position and recognizing their delegates as the proper delegates. [/quote:1jmth0o0]

[i:1jmth0o0]O'Brien v. Brown[/i:1jmth0o0], [url=http://caselaw.lp.findlaw.com/cgi-bin/g ... 1:1jmth0o0]409 U.S. 1 (1972)[/url:1jmth0o0] ???
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Post by Beathan »

Justice --

That one seems closest. I think I was misremembering the case -- remembering [i:3lx3dxc4]O'Brien[/i:3lx3dxc4] cobbled together with [i:3lx3dxc4]Luther v. Borden[/i:3lx3dxc4] 48 U.S. 1 (1849).

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Post by Oni Jiutai »

[quote:22pwuei6]We need to start with simple and non-controversial rules [/quote:22pwuei6]

This seems to me a laudable, but doomed enterprise.

Isn't the reason that we've spent quite so much virtual paper arguing about this that there are sufficient differences between people's various positions that we can't all agree that a single point is the ideal starting place?

[quote:22pwuei6]You yourself have argued that the mere fact that a rule is established places an extra burden on people proposing alternatives.[/quote:22pwuei6]

I think I'd draw a distinction between changing systems and changing rules. It is much harder to move, say, from a adversarial to an inquisitorial system, than it is, on the other extreme, to say "All Judges shall now be referred to as 'Judge'. But I'd accept the general point, and many changes would, of course, be somewhere in the middle of those extremes.

The problem is one has to start somewhere. I think we may simply have an irreconcilable difference over what the best starting place is and where testing can take place.

A few thoughts on that: we all seem to agree to the test should be a live test, i.e. that what we set up should be capable of resolving cases now. This would seem to restrict us to having one primary system - although with the opportunity for consenting litigants to use other systems through arbitration. I don't see any practical way of testing both an adversarial and an inquisitorial system at the same time.

The other question is what are we testing. It seems to me that there are two main questions and two main positions (with apologies to anyone who's views I've mischaracterised):

Question One - Complexity

View One: A sophisticated system, with clearly defined procedure that aims to be complete will provide the best justice because it offers clarity and predictability. This detailed system can then be changed as we learn.

View Two: A simple, more bare bones system will be easier for non-lawyers to understand and will offer us greater flexibility as we move forward. This will ultimately lead to a better system.

Question Two - Judicial Systems

View One: A SL judiciary is much like normal judiciaries and requires the same sorts of protections - such as security of post and apolitical selection.

View Two: We are concerned that such a system, in the context of the CDS, gives Judges too much power and prefer a different system with different checks and balances - and a different balance of power within the state triumvirate (executive, legislature and judiciary).

That, I think, leaves us with the problem that there is no set of ur-rules that everyone can agree on as a starting point.
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Post by Oni Jiutai »

Briefly on the question of things courts just can't decide. I think we may just be getting entangled into cross-atlantic semantic differences. As far as I can tell there is no practical difference between the two systems.

Litigant: Here is a case. It is very controversial and really best dealt with by the legislature, but I thought I'd sue anyway.

US Judge: This is a political question, outside what a court can resolve, so I can't deal with it. Case dismissed.

UK Judge: There is no rule of law to cover this question and this is something best lest to Parliament. Therefore you have no cause of action and your case is dismissed.
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Post by Ashcroft Burnham »

[quote="Beathan":9vpjjkv7]However, we will be in exactly the same boat if we try to decide cases involving nonCDS citizens -- or disputes involving sims and people outside our jurisdictional and cultural reach.[/quote:9vpjjkv7]

Oni has replied on the concept of the US non-justiciability doctrine, but this bizarre point needs a reply, too: the doctrine to which you refer is essentially a US conceptualisation of the separation of the powers: the the court should not decide an issue because it is an issue properly decided by one of the other pillars of state.

What you suggest above is incapable of having the same justification: dealing with non-CDS citizens or "people outside our jurisdictional and cultural reach" (whatever you mean by that, exactly) cannot coneivably have the least to do with the separation of the powers. You may think that there are other, independent reasons for our judicial system not to deal with such cases, but you have failed to state what they are. Why should a non-citizen not have the same right to a fair hearing before being banished as a citizen? Or are you suggesting that non-citizens should never be banished at all (which would mean that nobody could be banished permanently, since, by banishing a person, that person becomes a non-citizen)?

[quote:9vpjjkv7]Each of these kinds of cases could well present political questions that the court should not decide.[/quote:9vpjjkv7]

Can you give any specific examples?

[quote:9vpjjkv7] Further, each of these kinds of cases could present factual issues that a CDS court should not hear[/quote:9vpjjkv7]

Such as?
Ashcroft Burnham

Where reason fails, all hope is lost.
Justice Soothsayer
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Post by Justice Soothsayer »

[quote="Oni Jiutai":galrdqtp]The other question is what are we testing. It seems to me that there are two main questions and two main positions (with apologies to anyone who's views I've mischaracterised):

[list:galrdqtp]Question One - Complexity

View One: A sophisticated system, with clearly defined procedure that aims to be complete will provide the best justice because it offers clarity and predictability. This detailed system can then be changed as we learn.

View Two: A simple, more bare bones system will be easier for non-lawyers to understand and will offer us greater flexibility as we move forward. This will ultimately lead to a better system.

Question Two - Judicial Systems

View One: A SL judiciary is much like normal judiciaries and requires the same sorts of protections - such as security of post and apolitical selection.

View Two: We are concerned that such a system, in the context of the CDS, gives Judges too much power and prefer a different system with different checks and balances - and a different balance of power within the state triumvirate (executive, legislature and judiciary).[/list:u:galrdqtp]That, I think, leaves us with the problem that there is no set of ur-rules that everyone can agree on as a starting point.[/quote:galrdqtp]
Thank you for bringing some much needed clarity to the debate, and a respectful and hyperbole-free effort to understand the views of others. I will post separately about the recent pendulum shifts between sets of rules that reflect View One and View Two. I think you have hit on the heart of the debate here, and these questions would form an excelled over-arching agenda for Pat's proposed [url=http://forums.neufreistadt.info/viewtop ... 6:galrdqtp]Way Forward[/url:galrdqtp].
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