Agenda item 4: Judges

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Agenda item 4: Judges

Post by Justice Soothsayer »

[quote:3364jlt7]4. Judges
How should judges be selected and appointed? Is there need for peer
qualification? Are the judicial selection procedures appropriate? What should be the duration of the term of office of judges?[/quote:3364jlt7]
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Ashcroft Burnham
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Post by Ashcroft Burnham »

Most of this is answered under "judicial independence". Additionally, I should note that one of the most important qualifications of a judge is legal skill and undertsanding. Of course, only a person [i:3t4srsc8]with[/i:3t4srsc8] legal skill and understanding can judge whether another person has it; our judges, therefore, should be qualified by those in our community with the greatest degree of legal skill and understanding (as verified by our own procedures): existing judges (who are also in the best position to understand what the demands of the job really are and who is best suited to dealing with them).
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Post by Beathan »

Ash --

I strongly disagree. First, your test does not actually get at the issue because it forecloses candidates inappropriately. Second, it is not self-evident that legal skill is actually critical in a judge. Community judging is possible -- even commonplace -- and relies far more on character and commonsense than on the kind of thing taught in lawschools. Third, even if we want the kind of thing taught in lawschools, it is simply not true that only lawyers can judge other lawyers, or can judge who would be a good judge. I can't run fast, but I can tell you if someone else can if I see them do it. Legal ability is a lot like this, imo. Finally, as pointed out elsewhere, the people with the best legal skill might make the best lawyers, but the best lawyers don't necesarily make the best judges. There is much more involved.

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Post by Dexter Leopold »

While I won't go so far as to state that a judicial candidate must have some formal legal training in order to be a judge, I do think an adequate test/assessment of one's ability to navigate the legal process and critically think is a must. This has become increasingly more important, in my opinion, under the new loose procedures that our courts are operating under. In instances where parties can't agree on procedure, the judge is going to have to have some understanding of how to handle such situations, what types of procedures would be appropriate and fair under a "trial system," and some baseline legal thinking skills to decide which route to take and assess each party's arguments. The importance of such procedural determinations should not be overlooked or brushed aside, as they could have a profound impact on the entire case.

While I of course believe common sense and good character (whatever that means) are very important characteristics for any judge to possess, I don't think those alone take us far enough, especially where procedural determinations are to made and even completely created under our current system.

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Post by Beathan »

Dexter --

I agree that critical thinking is important; as is the ability to discover the relevant things -- the law -- to think about. However, where I part company from others is in the belief that only lawyers can do these things. That is not my experience, and I see no good reason to believe it.

Further, I disagree that the current process makes legal training more necessary. I think the opposite. The process can be worked out based on good common sense -- rather than figured out by reading a complicated Code with a specific and professional vocabulary. I think working out a good procedure order under the current system is a matter of commonsense thinking about what things will happen in the case, which therefore need to be addressed, and influence, by character, over the litigants to achieve their agreement to the order.

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Post by Flyingroc Chung »

[quote="Ashcroft Burnham":wto7oxfa]only a person [i:wto7oxfa]with[/i:wto7oxfa] legal skill and understanding can judge whether another person has it;[/quote:wto7oxfa]

So, I have been thinking a *lot* about the logical implications of this statement. There's a bootstapping problem here; if only a person with legal skill and understanding can judge whether a person has it; how do we find the *first* person who has legal skill and understanding?

---

Ok, I'm not a logician here, nor an expert in the English language, so I'm not sure how exactly the implication goes; so let's try all of them!

I. The implication goes one way!

* if X has legal expertise then X can judge whether another person has legal expertise

* ( X has legal expertise --> X can judge whether Y has legal expertise)

First, this statement can be shown to be false if we find a single instance where X has legal expertise, but X shows poor judgement in whether a person has legal expertise.

But wait! If we're not in the set of people that has legal expertise, can we still judge if Y has legal expertise? The answer is: yes, it is possible! If we take the implication this way, it does not say *anything* about whether non-legal experts can judge the legal expertise of other people.

II. The implication goes the other way!

X can judge whether Y has legal expertise --> X has legal expertise

This doesnt tell us whether some Z can judge legal expertise. In fact, if we take the implication this way, there may be *some* legal experts who are *not* qualified to judge whether others are also legal experts!

III. The implication goes both ways!

X can judge whether Y has legal expertise <--> X has legal expertise

Or put it another way, the set of legal experts is the same as the set of people who can judge who is a legal expert. The implications of this statement is very interesting. First, the bootstrap problem above, we need to be able to find at least one person in this set to be able to find all the other people in that set. But wait, if we are not in that set, we're not qualified to judge that.

Are you confused? Me too!

Then there is this question, if we all agreed that one set of people are the legal experts (who are the same as the people who can qualify as the legal experts), what if two people in that set disagree?

Huh? Ok, lets say we start with this assumption

A is a legal expert
B is a legal expert
A judges C to be a legal expert
B judges C to be *not* a legal expert

well there are two possible cases: C is either a legal expert or not, let's take them one at a time.

Assume C is a legal expert
Then B judged wrongly about C.
Then we conclude that B *cannot* judge the qualifications of C
But we assumed that B is a legal expert! There is a contradiction.

Assume C is *not* a legal expert
Then A judged wrongly about C, therefore not a legal expert.
But we also assumed that A is a legal expert! There is a contradiction again in this case.

So we know that A and B cannot be both legal experts. But now the question arises, who do we believe, how can we tell which of A or B is a legal expert? The problem is, if we're not legal experts, we cannot know!

Oh noes!!! What does this mean?

Well, if we take Ashcroft's assertion as a double-implication, a lot of things; but here's one:

If there is a group that claim to be legal experts, non-experts are not qualified to determine if they are in fact, a group of experts.
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Post by Ashcroft Burnham »

Flyingroc, you misuderstand my argument. My argument is not that every judgment of legal expertise by a legal expert is perfect, or that every judgment of legal expertise by a non-expert is worthless; merely that a judgment of legal expertise by a legal expert is worth a great deal [i:15nmfphr]more[/i:15nmfphr] than one by a non-expert.

The same goes with accountancy: would you trust somebody who knew nothing about accounts to determine, without recourse to formal qualifications, who is and who is not a good accountant?
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Post by Ashcroft Burnham »

[quote="Beathan":3vvbri3m]Further, I disagree that the current process makes legal training more necessary. I think the opposite. The process can be worked out based on good common sense -- rather than figured out by reading a complicated Code with a specific and professional vocabulary. I think working out a good procedure order under the current system is a matter of commonsense thinking about what things will happen in the case, which therefore need to be addressed, and influence, by character, over the litigants to achieve their agreement to the order.[/quote:3vvbri3m]

There is always the unreasoned, unsubstantiated, untested assumption that you make, and incessantly assert without any foundation, that the ability to judge how to deal with behaviour-rule interactions is a matter of something called "common sense", which is not a specialist skill, and many people, even without legal training or experience, have. In the absence of reasoned basis for that assertion, why should anybody accept it? What, precisely, makes that claim more right than the converse claim that what is needed is a precise intellectual understanding of the nature of rules of the kind that govern human behaviour?
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Post by Flyingroc Chung »

[quote="Ashcroft Burnham":d9zqumlg]merely that a judgment of legal expertise by a legal expert is worth a great deal [i:d9zqumlg]more[/i:d9zqumlg] than one by a non-expert.
[/quote:d9zqumlg]

Well, that's quite different from your original statement:

[quote:d9zqumlg]
Of course, only a person with legal skill and understanding can judge whether another person has it;
[/quote:d9zqumlg]

I hope you can see how the original statement can be construed to mean that people who do not have legal skill cannot discern the people who do (*only* a person with legal skill...); and how tha might raise alarm bells in my mind.

---

But there is a problem I have with this sort of self-selection thing (which also exists within the SC), it is the danger of "inbreeding". This happens a lot in academia. Faculty hire new faculty who think like themselves, who then hire other faculty with the same temperament, etc. until eventually the department just lives in its own little world, with its own language, and its own concerns; far removed from the real concerns of the outside world.

It is often the case that the best objective view of a system comes from people outside of it. For example, it is often the case that the best people who are able to judge whether a person is a good accountant are not accountants themselves, but the non-accountants who hire them.
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Post by Ashcroft Burnham »

[quote="Flyingroc Chung":s4560emz][quote="Ashcroft Burnham":s4560emz]merely that a judgment of legal expertise by a legal expert is worth a great deal [i:s4560emz]more[/i:s4560emz] than one by a non-expert.
[/quote:s4560emz]

Well, that's quite different from your original statement:

[quote:s4560emz]
Of course, only a person with legal skill and understanding can judge whether another person has it;
[/quote:s4560emz]

I hope you can see how the original statement can be construed to mean that people who do not have legal skill cannot discern the people who do (*only* a person with legal skill...); and how tha might raise alarm bells in my mind.[/quote:s4560emz]

Yes, I see that I might have stated the point a little too highly. That is a fair point.

[quote:s4560emz]But there is a problem I have with this sort of self-selection thing (which also exists within the SC), it is the danger of "inbreeding". This happens a lot in academia. Faculty hire new faculty who think like themselves, who then hire other faculty with the same temperament, etc. until eventually the department just lives in its own little world, with its own language, and its own concerns; far removed from the real concerns of the outside world.

It is often the case that the best objective view of a system comes from people outside of it. For example, it is often the case that the best people who are able to judge whether a person is a good accountant are not accountants themselves, but the non-accountants who hire them.[/quote:s4560emz]

That is why we have the PJSP, and why the Board of the Judiciary Commission qualifies on objective criteria, and does not limit the numbers of those whom it qualifies to the number of vacancies available, but qualifies all candidates who pass the objective criteria, leaving the PJSP to choose amongst them.
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Post by Flyingroc Chung »

[quote="Ashcroft Burnham":ccxezwfi]
That is why we have the PJSP, and why the Board of the Judiciary Commission qualifies on objective criteria, and does not limit the numbers of those whom it qualifies to the number of vacancies available, but qualifies all candidates who pass the objective criteria, leaving the PJSP to choose amongst them.[/quote:ccxezwfi]

From what I understand, you have been arguing that the members of all these should come from essentially the same set of people: those who have legal skill and understanding. Am I correct?
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Post by Dianne »

[quote="Flyingroc Chung":2aj0x7xd][quote="Ashcroft Burnham":2aj0x7xd]
That is why we have the PJSP, and why the Board of the Judiciary Commission qualifies on objective criteria, and does not limit the numbers of those whom it qualifies to the number of vacancies available, but qualifies all candidates who pass the objective criteria, leaving the PJSP to choose amongst them.[/quote:2aj0x7xd]

From what I understand, you have been arguing that the members of all these should come from essentially the same set of people: those who have legal skill and understanding. Am I correct?[/quote:2aj0x7xd]This whole concept of people having "legal skill and understanding" is also problematic in terms of the very [b:2aj0x7xd]fundamentals[/b:2aj0x7xd] of SL.

There is no way to incorporate criteria into a job description from another dimension or world, therefore in the virtual world of SL there is no way to incorporate "legal skill and understanding" based on RL criteria without revealing RL persons and dispensing with the whole intermediary "virtual' layer. The whole thing is flawed from the word go.

In SL we are legal pseudonymous personalities, but we don't necessarily reveal those RL personalities. In this instance, and in other comments and suggestions I have seen for the Judicial system, in the process of picking Judges and moving forward with the Judicial Act, we seem to be inching closer and closer to the idea that RL lawyers and Judges (or at least legal students) should fill these roles. This is simply untenable.

At best, any system that relies on RL qualifications or some semblance of same, is a meaningless reproduction of RL, and useless by definition.

The entire judicial system leans towards a RL model of RL judges and lawyers (of which we are to understand that Ashcroft is one.) Would it have been received in the same light if we failed to believe that he was?

How can the SC be "at the top" of the Judicial chain as some people seem to think it still is, or be expert in constitutional law if there is a whole system of "real" legal experts beneath them? The only criteria for judicial knowledge should be judicial knowledge as it relates to SL and to CDS government and laws. If that is the case, then [b:2aj0x7xd]none[/b:2aj0x7xd] of the Judges, nor anyone behind the new legal system has as much "judicial knowledge" as anyone on the SC, the RA or the (former) AC.

The qualifications for membership in the original SC, although they could be much more stringently defined, are much more sensible and in keeping with a "real" virtual government and Judicial system IMO.
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Post by Ashcroft Burnham »

[quote="Flyingroc Chung":lzk8jpto]From what I understand, you have been arguing that the members of all these should come from essentially the same set of people: those who have legal skill and understanding. Am I correct?[/quote:lzk8jpto]

The [i:lzk8jpto]judges[/i:lzk8jpto] should definitely have legal skill and understanding. The members of the PJSP just need to be dilligent citizens with good sense and an interest in the judiciary. Having legal skill and understanding would not hurt, but is not essential.
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Post by Ashcroft Burnham »

[quote="Dianne":37kyn61h]There is no way to incorporate criteria into a job description from another dimension or world, therefore in the virtual world of SL there is no way to incorporate "legal skill and understanding" based on RL criteria without revealing RL persons and dispensing with the whole intermediary "virtual' layer. The whole thing is flawed from the word go.

In SL we are legal pseudonymous personalities, but we don't necessarily reveal those RL personalities. In this instance, and in other comments and suggestions I have seen for the Judicial system, in the process of picking Judges and moving forward with the Judicial Act, we seem to be inching closer and closer to the idea that RL lawyers and Judges (or at least legal students) should fill these roles. This is simply untenable.

At best, any system that relies on RL qualifications or some semblance of same, is a meaningless reproduction of RL, and useless by definition.

The entire judicial system leans towards a RL model of RL judges and lawyers (of which we are to understand that Ashcroft is one.) Would it have been received in the same light if we failed to believe that he was?

How can the SC be "at the top" of the Judicial chain as some people seem to think it still is, or be expert in constitutional law if there is a whole system of "real" legal experts beneath them? The only criteria for judicial knowledge should be judicial knowledge as it relates to SL and to CDS government and laws. If that is the case, then [b:37kyn61h]none[/b:37kyn61h] of the Judges, nor anyone behind the new legal system has as much "judicial knowledge" as anyone on the SC, the RA or the (former) AC.

The qualifications for membership in the original SC, although they could be much more stringently defined, are much more sensible and in keeping with a "real" virtual government and Judicial system IMO.[/quote:37kyn61h]

Dianne, perhaps you understand me: whilst I have been willing to reveal my [url=http://www.55tc.com/jamesp.html:37kyn61h]RL identity[/url:37kyn61h], it is not a prerequisite for practice here. I always developed the system on the basis that there would be no requirement for extrinsic qualifications: all the qualification requirements should be based on [i:37kyn61h]our own[/i:37kyn61h] qualification systems and our own law.

The qualification requirements and questionnaire for judges, for example, does not ask candidates to disclose whether they have any RL legal qualifications, but does ask a series of questions about our law, both in theory and in practice. In the long term, what would work well is a system of qualifying [i:37kyn61h]advocates[/i:37kyn61h] who appear before our courts, based on understanding of our law and legal principles, and then picking judges from among the qualified advocates.

The point is that we need to be making our own legal qualifications that, whilst they do not entail any given RL legal qualification, will, of course, attract the same sort of people as those who seek RL qualification, and will ultimately require the same sorts of mental abilities, just as a lawyer from one country would find it easier to be a lawyer in a totally different country than an engineer would find it to become a lawyer.
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Post by Flyingroc Chung »

Why should judges have lifetime appointments? A person who is qualified to be a judge today may not have the same qualities a year from now (or CDS may have changed enough so that it renders that person unqualified).

Is there or should there be a process for reviewing a judge's qualifications other than impeachment?
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