Agenda item 4: Judges

To plan and discuss the meetings to take place under the auspices of the Comission

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Ashcroft Burnham
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Post by Ashcroft Burnham »

[quote="Flyingroc Chung":1ub61pfd]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?[/quote:1ub61pfd]

It does not make any sense to think that a person can become less qualified to be a judge: legal skill and understanding is not something that goes away.

The reason that security of tenure for judges is a vital safeguard to judicial independence and impartiality is that, if judges did not have security of tenure, those who choose whether to re-appoint judges can do so based on how they have decided cases, meaning that anybody who wants to be re-appointed is likely to be influenced by that person's beliefs about what the re-appointers might think of her or his judicial decisions, when the independence of the judiciary entails that no judge must ever have the possibility of being so influenced.

Many real-life nations work perfectly well with judges that have a secure term, without any difficulties of qualification. In England, ensuring that judges remain able to do the job after the law changes is dealt with by training. There is no reason why we cannot have training organised by the Judiciary Commission.
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Post by Beathan »

Ash wrote [quote:1f2iq3bg]The judges 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.
[/quote:1f2iq3bg]

Why? Why can't we have citizen judges, who are diligent, have good sense, and have a keen interest in Justice. In such case, why can't we rely on advocates, who do not seem to be in short supply, to explain the law to the judges. The judges would then make good sense judgments based on the law as presented to them by the advocates. If the law is so unclear that the advocates would disagree about it, the judge would then make a good, commonsense judgment and interpretation of it.

IMO, this is better than our system iRL of having lawyer judges. I frequently find that lawyer judges actively take sides on legal issues --acting as advocated for their pet theories about the law. This is not healthy in a legal system -- and it is unnecessary. I think we could avoid this problem just by assuring that our lawyers are lawyer, but our judges are not.

I admit that we give up some things -- even some important things -- if we move to citizen judges. However, we should not just assume, without good reason or analysis, that we need our judges to be lawyers. We don't. Many societies have had perfectly good legal systems without lawyer judges. There are even good reasons not to have lawyer judges.

Let's not make any decisions about our legal system based on prejudice, bias, or simple comfortable familiarity with a certain practice, idea, or doctrine. Let's rather take the time to thoroughly analyse every option we can think of and to test every one of those options that is not outright stupid to see if it works and works well in second life. I have no doubt that we will find that strange and unexpected things work here -- things that we aren't used to iRL either because they wouldn't work iRL or because they were never given a chance to work iRL.

We go along way in this direction with flexible and general ruls of procedure. We should also go in this direction with our judges. In Ash we have a lawyer with his biases. If we want two more judges -- we should have one who is not a lawyer and another who is a very different lawyer than Ash. I do not offer myself here -- that would seem like self-pleading. However, I note that Publius or Justice or Rose Springvale could fit the bill. I think that we should have four judges -- and that it makes sense to have two lawyer and two nonlawyers.

What we need to avoid, above all things, is a one-size fits all justice system administered by a intellectually homogenized set of judges. Eventually, once we know what kind of judge works best for us, we can try to duplicate that person on the bench. However, cloning horses with no track record makes no sense.

Therefore, at least to start with, we also need judicial term limits. We need to be able to get rid of judges who are tested and found wanting -- and we need to be able to do so without resort to impeachment or other extraordinary action. We might put a time limit on the term limits -- say three years -- with the object of eventually having lifetime terms. However, I see no reason to do this. Let's start without lifetime terms and only add them if we think we need them.

Beathan
Last edited by Beathan on Thu Dec 14, 2006 11:08 am, edited 1 time in total.
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Post by Publius Crabgrass »

Ash suggests that lifetime terms are needed to preserve judicial independance, so that judges do not make decisions influenced by the possibility that their decisions might affect their reappointment. We could achieve the same end from a different route: give judges a term appointment without possibility of reappointment.
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Post by Ashcroft Burnham »

[quote="Publius Crabgrass":18mle3ou]Ash suggests that lifetime terms are needed to preserve judicial independance, so that judges do not make decisions influenced by the possibility that their decisions might affect their reappointment. We could achieve the same end from a different route: give judges a term appointment without possibility of reappointment.[/quote:18mle3ou]

And ensure that each and every judge will always be inexperienced? Do you really think that we will be able to find enough judges to have five new, good ones every six months? This is a woefully sh0rt-sighted proposal.
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Post by Ashcroft Burnham »

[quote="Beathan":2pbzkl8p] However, we should not just assume, without good reason or analysis, that we need our judges to be lawyers. [/quote:2pbzkl8p]

It is a serious misrepresentation of all the detailed discussion that there has been on judicial skill to claim that anybody has assumed any such thing without good reason. The matter has been explicitly and carefully considered. Indeed, are you not the one merely assuming, without good reason or analysis, that no there was no reason or analysis put into that conclusion?
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Post by Diderot Mirabeau »

[quote="Ashcroft Burnham":asz8kcg7]And ensure that each and every judge will always be inexperienced? Do you really think that we will be able to find enough judges to have five new, good ones every six months? This is a woefully sh0rt-sighted proposal.[/quote:asz8kcg7]

Please - I get the point of your argument that Publius' proposal will mean that all judges will be inexperienced and we will need to assure a steady inflow of people with sufficient qualifications to continue to be able to staff the judiciary.

There is no need to supplement that observation with the last sentence except for effect. And in fact I think it is this desire to achieve effect on boths sides that contributes severely to hardening fronts and a continued fanning of the flames bordering on personal animosity where by a simple omission one could instead contribute toward a more pragmatic and constructive atmosphere in the discussion. We've all been guilty of this but at the present stage of negotiations in the Special Judiciary Commission I think it might be a good time to start looking forward.
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Post by Ashcroft Burnham »

[quote="Diderot Mirabeau":32h22280]Please - I get the point of your argument that Publius' proposal will mean that all judges will be inexperienced and we will need to assure a steady inflow of people with sufficient qualifications to continue to be able to staff the judiciary.

There is no need to supplement that observation with the last sentence except for effect. And in fact I think it is this desire to achieve effect on boths sides that contributes severely to hardening fronts and a continued fanning of the flames bordering on personal animosity where by a simple omission one could instead contribute toward a more pragmatic and constructive atmosphere in the discussion. We've all been guilty of this but at the present stage of negotiations in the Special Judiciary Commission I think it might be a good time to start looking forward.[/quote:32h22280]

Hmm, there is something in that. It is very frustrating, though, when one has worked extraordinarily hard to secure a workable compromise, and people come along later without respect for that.
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Post by Publius Crabgrass »

[quote="Ashcroft Burnham":2hqlfs2o][quote="Publius Crabgrass":2hqlfs2o]Ash suggests that lifetime terms are needed to preserve judicial independance, so that judges do not make decisions influenced by the possibility that their decisions might affect their reappointment. We could achieve the same end from a different route: give judges a term appointment without possibility of reappointment.[/quote:2hqlfs2o]

And ensure that each and every judge will always be inexperienced? Do you really think that we will be able to find enough judges to have five new, good ones every six months? This is a woefully sh0rt-sighted proposal.[/quote:2hqlfs2o]

Ah, who says the term must be only 6 months? Staggered 30-month terms among five judges ought to do it. Rotation would also allow for additional participation from among all citizens.

BTW, no offense taken at the short-sighted comment - I do seem to need new eyeglasses.
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Post by Ashcroft Burnham »

[quote="Publius Crabgrass":1qx3i34q]Ah, who says the term must be only 6 months? Staggered 30-month terms among five judges ought to do it. Rotation would also allow for additional participation from among all citizens.[/quote:1qx3i34q]

I do not understand what you think that this would achieve. What benefit to anybody is it that good, experienced judges are forced to cease to serve as judges merely because a fixed period of time has expired? How will that make for better judges?

Further, it is unclear why you think that "additional participation from among all citizens" is important in this respect. Why should we rotate judges but not accountants? What if additional citizens do not wish to participate? The function of a justice system is not to let citizens have a go at playing being a judge: it is to dispense justice. There is nothing about that function that is better served if people can only be judges for a short period of time. The more turnover that any given office has, the less chance that it has of having good people at any given time. Why should anything rank above judicial skill and independence in determining who should be judges and for how long?

How can you be confident that there will always be a sufficient supply of good judges?
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Post by Flyingroc Chung »

[quote="Ashcroft Burnham":1w6mg70c]
It does not make any sense to think that a person can become less qualified to be a judge: legal skill and understanding is not something that goes away.
[/quote:1w6mg70c]
A person can get some sort of mental disease, dementia, alzheimer's etc.; or a person could possibly just get bored, or depressed. A person may be a good judge now, but RL stresses amy diminish the time and effort he can spend on cases... people change, can't their legal skill change as they do?

Go to any academic institution, you will see tenured professors who used to be good teachers and researchers, but have lost the skill for good research and teaching. Is legal skill so different that it cannot be lost?

In the Philippines, there are judges who because they have security of tenure simply get on by, doing the minimum possible work. My friend who just graduated from law school told me one judge actually told him it was ok to decide a case arbitrarily, and just let the facts get hashed out on appeal.

I fear for the possibility that we might gain a judiciary filled with such people. Training is only a partial answer, what to do with people who have just lost the will to decide cases fairly, yet goes through the motions of hearing them?

Besides the ideal of judicial independence, I would like to point out another ideal that is enshrined in our constitution: democratic rotativity. If you entrench people in a government institution, it will likely stagnate and run out of ideas. It may also drift apart from the ideals of the rest of the commnity.

I think it is no surprise that our most successful branch of government is the RA, the same institution that has had the most change in its composition.
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Post by Dexter Leopold »

Wasn't it the RA that passed the JA, upon which all this argument has been based on?
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Post by Flyingroc Chung »

[quote="Dexter Leopold":1rknrekd]Wasn't it the RA that passed the JA, upon which all this argument has been based on?[/quote:1rknrekd]
When I said the RA was "successful" I meant they were *good* not *perfect*. :-P
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Post by Ashcroft Burnham »

[quote="Flyingroc Chung":1ovc3cck]A person can get some sort of mental disease, dementia, alzheimer's etc.;[/quote:1ovc3cck]

A judge cen be impeached for insanity.

[quote:1ovc3cck] or a person could possibly just get bored, or depressed. A person may be a good judge now, but RL stresses amy diminish the time and effort he can spend on cases... people change, can't their legal skill change as they do?

Go to any academic institution, you will see tenured professors who used to be good teachers and researchers, but have lost the skill for good research and teaching. Is legal skill so different that it cannot be lost?

In the Philippines, there are judges who because they have security of tenure simply get on by, doing the minimum possible work. My friend who just graduated from law school told me one judge actually told him it was ok to decide a case arbitrarily, and just let the facts get hashed out on appeal.

I fear for the possibility that we might gain a judiciary filled with such people. Training is only a partial answer, what to do with people who have just lost the will to decide cases fairly, yet goes through the motions of hearing them?[/quote:1ovc3cck]

If people become bored or depressed at being judges, then it is quite inconceivable that they would want to stay around and continue to work as judges: it is not as if they will have any significant income from the position in the foreseeable future. Anyone who is bored being a judge will no doubt either resign, or just go away. In the latter case, the judge could be impeached for gross derliction of duty. Your Philappines example is not, therefore, readily applicable to SecondLife.

[quote:1ovc3cck]Besides the ideal of judicial independence, I would like to point out another ideal that is enshrined in our constitution: democratic rotativity. If you entrench people in a government institution, it will likely stagnate and run out of ideas. It may also drift apart from the ideals of the rest of the commnity.

I think it is no surprise that our most successful branch of government is the RA, the same institution that has had the most change in its composition.[/quote:1ovc3cck]

The concept of democratic rotativity is not a concept relevant to a judiciary, since a judiciary is not the sort of institution whose composition is (or ought be) determined democratically in the first place, for all the reasons discussed elsewhere. The function of the judiciary is not, as is the function, for example, of the legislature, to have new ideas or to represent anyone's views: it is to decide cases skilfully and fairly. The suggestion that the judiciary needs not to "drift apart from the ideals of the rest of the community" implies that judges ought decide cases in popular ways - that is wholly inconsistent with judicial independence. The way of ensuring that the judiciary does not subvert democratic legitimacy is by ensuring that the judiciary is subject to the laws passed by a democratic legislature, not that its individual judges hold popular opinions. As to the last statement, there is no basis for contending that the correlation between the RA's success and the frequency of change of its composition entails causality of the same, nor that, even if it did, that that causative mechanism would work equally well on an institution with a vastly different function, the judiciary.
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Post by Flyingroc Chung »

[quote="Ashcroft Burnham":ez8f69k7]
If people become bored or depressed at being judges, then it is quite inconceivable that they would want to stay around and continue to work as judges: it is not as if they will have any significant income from the position in the foreseeable future. Anyone who is bored being a judge will no doubt either resign, or just go away. In the latter case, the judge could be impeached for gross derliction of duty. Your Philappines example is not, therefore, readily applicable to SecondLife.
[/quote:ez8f69k7]
There are many reasons for a judge to overstay his welcome in a judiciary: the prestige of being a judge in our litle republic, the stigma of being impeached or having to resign, sheer malice, etc. etc. Why are so many things "inconceivable" to you?
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Post by Aliasi Stonebender »

[quote="Flyingroc Chung":rs74oir5]
There are many reasons for a judge to overstay his welcome in a judiciary: the prestige of being a judge in our litle republic, the stigma of being impeached or having to resign, sheer malice, etc. etc. Why are so many things "inconceivable" to you?[/quote:rs74oir5]

Quite. And a term limit is valuable without crying that it makes the judiciary "not independent".

I've wrote on how an unelected body such as the SC - and by extension, a judiciary - helps combat passions of the moment among the citizens. However, the flip side of this is such bodies can become too paternalistic and resist a desired change simply because they don't like it. By forcing the 'pot' of the makeup of the bodies to be stirred every once in awhile, this should act as a counterbalance to that stagnation.
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