Of Pendulums and Rules

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Of Pendulums and Rules

Post by Justice Soothsayer »

[b:1nza5uwo]Of Pendulums and Rules[/b:1nza5uwo]

Oni has quite helpfully categorized the questions in our judicial debate:

[quote="Oni":1nza5uwo]Question One - Complexity
[list:1nza5uwo]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. [/list:u:1nza5uwo]
Question Two - Judicial Systems
[list:1nza5uwo]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:1nza5uwo][/quote:1nza5uwo]
Readers will no doubt recall that the Chief Judge issued a set of court rules (the “Code of Procedure”) on December 5th. The Code, issued in a file termed “first draft” but announced as immediately going into force, consisted of 95 plus pages (depending on one’s font size) that set out in mind numbing detail issues from the vital (how to initiate a lawsuit) to the trivial (robe trim colours and the required amount of in-court bowing). Most significantly, the Code of Procedure made several important policy choices on such matters as court costs, forms of pleading, evidentiary burdens of proof, trial procedures, and appointment of counsel. Interestingly, criticism of the Code before its issuance was called premature, and after its issuance critics were told that they should not have been surprised by it because the Code was based on the original scheme for the judiciary.

However, as Ashcroft has noted, “Anything in the Code of Procedure is a matter for the legislature if the legislature wants it to be, but, until then, it is a matter for the Chief Judge”. As one of those legislators, I concluded that many of these matters should be more appropriately decided by the RA rather than by one judge. I would have preferred to simply stop the Code of Procedure, but was convinced that we needed to put something in its place. I therefore introduced legislation that ultimately adopted (after the SC suggested and the RA adopted a small amendment) the following simple rules:

[quote="Rules":1nza5uwo][b:1nza5uwo]Rule 1 - Initiating notecard [/b:1nza5uwo]

A case is be initiated by submitting a notecard containing (1) name of the Complainant, (2) name of the Respondent(s), and (3) a short and simple statement of the facts of the case. The notecard shall be dropped into the inventory of the Chair of the Judiciary Commission, who shall within 24 hours send the notecard and IM notice of the submission of the notecard to each defendant(s), and the Chair shall maintain a record of having done so.

[b:1nza5uwo]Rule 2 - Reply notecard [/b:1nza5uwo]

A Respondent shall reply to the initiating notecard within ten days by submitting a reply notecard containing a short and simple statement of the facts of the case. The reply notecard shall be dropped into the inventory of the Chair of the Judiciary Commission, who shall within 24 hours send the notecard and IM notice of the submission of the notecard to the Complainant, and the Chair shall maintain a record of having done so.

[b:1nza5uwo]Rule 3 - Pretrial hearing [/b:1nza5uwo]

Within ten days of service of the Rule 2 notecard on the Complainant(s), the court shall convene a meeting of the parties (either at the same time in world, via IM, or via email) to discuss any procedures required for handling the case. The parties may agree on a pretrial order setting forth the procedures and timetable by which the case will be handled, including any trial procedures. In the event that no agreement is reached, the court may issue a pretrial order.

[b:1nza5uwo]Rule 4 - No costs, attorneys fees or other expenses [/b:1nza5uwo]

There shall be no court costs or attorneys fees assessed against any party, and all parties shall bear their own expenses, unless a contract between the parties or an Act passed by the RA provides otherwise.

[b:1nza5uwo]Rule 5 - Judgments [/b:1nza5uwo]

The court may enter judgment following trial, or upon motion by a party as long as all parties have been given an opportunity to be heard on the motion. The court may enter judgment by default if a party fails to participate at any stage, so long as the party is given notice via notecard providing for at least ten days to show cause why default judgment should not be entered.[/quote:1nza5uwo]
Ashcroft has in typically injudicious rhetoric termed these new and currently governing rules as “irresponsible”. I believe that it would have been irresponsible to let the Ashcroftian Code take effect without significant public input and debate. Three of our five branches of government agreed, as 4 RA members voted for the new rules (Pelanor abatained), the SC ratified them after deletion of one clause, and the Chancellor refrained from vetoing. (The AC didn’t get a vote on this one, and the judicial branch dissents.)

These Rules do represent a swinging of the pendulum from Oni’s View One (the Ashcroftian Code) to View Two (the “Soothsayer Rules” or as I prefer the “Rules of Justice”). I am among the first to acknowledge that the pendulum may have swung too far. For instance, it has been accurately noted that the rules do not cover appeals. Rule 3, though, allows the parties and the judge(s) if necessary to adopt a standard form of pretrial order setting out any needed procedures to govern a particular case. In the course of the Commission meetings I invited the judiciary and anyone else to propose further amendments to these Rules, and I offer that invitation again.

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Re: Of Pendulums and Rules

Post by Ashcroft Burnham »

[quote="Justice Soothsayer":20n7edyg]Readers will no doubt recall that the Chief Judge issued a set of court rules (the “Code of Procedure”) on December 5th. The Code, issued in a file termed “first draft” but announced as immediately going into force, consisted of 95 plus pages (depending on one’s font size) that set out in mind numbing detail issues from the vital (how to initiate a lawsuit) to the trivial (robe trim colours and the required amount of in-court bowing). Most significantly, the Code of Procedure made several important policy choices on such matters as court costs, forms of pleading, evidentiary burdens of proof, trial procedures, and appointment of counsel. Interestingly, criticism of the Code before its issuance was called premature, and after its issuance critics were told that they should not have been surprised by it because the Code was based on the original scheme for the judiciary.[/quote:20n7edyg]

I consider the criticism implied in that last sentence to be disingenuous. As you know, the code was based very closely indeed on the procedure that I described as being an integral part of the judicial system that I was proposing when I made my very first series of posts on the judiciary. I had consistently and frequently stated that I believed that procedural rules must be written in advance and must be very detailed. Those about whom I wrote that their criticsms of the Code of Procedure before it was even published as premature were those who had made no reference whatsoever to those original posts in August, had never posted on that thread, and who had only joined the CDS after that thread had fallen into disuse, obviously not having bothered to go through the forum archives and read it. Their criticism was based on nothing else than the fact that I had described writing a Code of Procedure a "massive undertaking" (which writing any proper rules for court procedure necessarily is). There was therefore, as no doubt you are fully aware, knowing full well that the people who criticised the Code before it was published never commented on the original thread, no conceivable contradiction of the sort that, by what must be deliberate omission of information, you are seeking to suggest above.

As to policy decisions, it is again nonsensical to criticise the judiciary for having made such decisions: the drafting a code of procedure inevitably required rules about the subject matter of those issues, which would necessarily require policy decisions. Most of them were foreshadowed in detail in my original post: it was only reasonable to expect that the legislature was buying the whole proposal when it passed the Judiciary Act. The expectation was that the legislature would take no interest in judicial procedures unless a problem arose, as it had better things to be doing. It evidently did not have better things to be doing.

[quote:20n7edyg]However, as Ashcroft has noted, “Anything in the Code of Procedure is a matter for the legislature if the legislature wants it to be, but, until then, it is a matter for the Chief Judge”. As one of those legislators, I concluded that many of these matters should be more appropriately decided by the RA rather than by one judge. I would have preferred to simply stop the Code of Procedure, but was convinced that we needed to put something in its place. I therefore introduced legislation that ultimately adopted (after the SC suggested and the RA adopted a small amendment) the following simple rules:

[i:20n7edyg]The Soothsayer Rules are cited[/i:20n7edyg]

These Rules do represent a swinging of the pendulum from Oni’s View One (the Ashcroftian Code) to View Two (the “Soothsayer Rules” or as I prefer the “Rules of Justice”). I am among the first to acknowledge that the pendulum may have swung too far. For instance, it has been accurately noted that the rules do not cover appeals. Rule 3, though, allows the parties and the judge(s) if necessary to adopt a standard form of pretrial order setting out any needed procedures to govern a particular case. In the course of the Commission meetings I invited the judiciary and anyone else to propose further amendments to these Rules, and I offer that invitation again.[/quote:20n7edyg]

If you expect anybody sane ever to do any serious amount of work for the CDS again after the amount of work that you are intent on destroying and/or have destroyed, you need to reconsider radically your perception of reality.

Incidentally, your code had [i:20n7edyg]no public consulation whasoever[/i:20n7edyg] before it was passed. A detailed outline of my code had five months of opportunity for feedback. I consider your criticism of the lack of consultation on my code also to be disingenuous for that reason.

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Re: Of Pendulums and Rules

Post by Aliasi Stonebender »

[quote="Ashcroft Burnham":191n6qfw]
If you expect anybody sane ever to do any serious amount of work for the CDS again after the amount of work that you are intent on destroying and/or have destroyed, you need to reconsider radically your perception of reality.
[/quote:191n6qfw]

Stop right there.

Nobody, not a single blessed soul, [i:191n6qfw]forced[/i:191n6qfw] you to do anything.

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Re: Of Pendulums and Rules

Post by Diderot Mirabeau »

[quote="Ashcroft Burnham":1o1gdjrw]If you expect anybody sane ever to do any serious amount of work for the CDS again after the amount of work that you are intent on destroying and/or have destroyed, you need to reconsider radically your perception of reality.[/quote:1o1gdjrw]
This seems to me to be a most unhealthy attitude towards working with and in a community that is governed democratically.

I remember us having one other citizen once who felt that her contributions to the community should be appreciated more tangibly and uncritically. That did not end well for either her or the community.

The problem is that you have presented this work as a "take it or leave it" option by choosing to adopt an entrenched and challenging attitude toward any criticism or concern regarding your massive text, which at the same time "threatens" to alter the landscape of citizens' rights and expectations. This latter fact needs to be taken more seriously by anyone involved in the work on the judiciary since as other people have repeatedly stated no judiciary can exist without the goodwill and trust of the people it serves. Writing a monolithic body of legislative text and procedural code, expecting people to devour it immediately and putting up what seems to me to be a sophistically inspired rhetorical defense in favour of every single comma in the body of work neglects the serious concern of many citizens in this community of how this work will affect the experience of living in the CDS.

I have just drafted a 'code of procedure' for the 'regular' meetings of the SC. I sent out the text for review by my colleagues. I got three submissions back with feedback of various kind. I adopted all the feedback - not necessarily because I agree with all of it but because I considered that my degree of interest in keeping a particular provision standing was smaller than my interest in letting the resultant code be a body of work, which everyone feels they have ownership of. That is the way most drafting of legislation and procedural documents has happened in this community until recently. It was effective and enabled us to proceed swiftly from one matter to the next without being hung up in endless debate over some trivial points.

The alternative method really does not seem to be recommendable. Imagine if you had not spent so much time vehemently defending every single sentence in the work but had instead spent it on constructive endeavours - then the whole undertaking may not have seemed like such a massively draining enterprise after all.

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Post by Oni Jiutai »

It seems to me that we've got into a bit of quandary, because the system set up to create the procedural rules has sprung an unexpected leak.

As I understand it the original idea was for the judiciary to draft the procedural code - with the RA having the right to amend it so they had final oversight the system and could impose policy decisions on individual areas.

That seems a pretty sensible model to me - using the specialised knowledge of the judiciary, but giving the final control to the democratic legislature.

I strongly suspect that nobody expected the RA to amend by deleting the entire judicial drafted procedural code and creating a new one. Obviously they were entitled to do so, but, equally obviously, it's extremely regrettable that they felt they needed to. And it's meant that a great deal of work has been thrown out, the judiciary has had no input on the procedural rules they're supposed to administer, the RA has had to draft something extremely quickly and none of the policy questions Justice identifies (and many others) have not actually been answered.

In effect, the RA has pulled the emergency stop and - inevitably - all of us have been tossed around a bit and there's a certain amount of confusion. I think the situation is further complicated by the fact that, because these were entirely new procedural rules, there isn't a status quo to fall back on. The RA couldn't - as they probably would have done if there had been a status quo - we're not happy with some of this, lets stick with the current rules while we redraft.

Leaving aside why the RA did this and whether it was a good idea, it seems to me that what we need to do is try to get the process started again.

I think Ash suggested during the recent Commission hearings that the judicial end of procedure drafting might be better shared between the judges, rather than being the responsibility of the Chief Judge. I think that's a good idea.

I suggest that, once some judges are appointed, they form a group and begin re-examining the Procedural Code Question with the intention of re-submitting something to the RA. This can take place in parallel with whatever further examination of the judicial system is going on (and it seems inevitable that there will be [i:3mg07nl8]something[/i:3mg07nl8]).

The aim would obviously be to submit something to the RA that they would pass. So there would need to be extensive discussion with the RA during the process to try to ensure that a consensus was emerging. Or - where the RA was clearly minded to do something a particular way the judges should simply draft it that way, so that the RA's intention was carried out, rather than leaving the RA to redraft everything themselves.

There would also, naturally, be public consultation through all of this, so everybody would get to have their say.

In parallel somebody (and I'm happy to do this) should produce a "Guide to the Procedures", with the intention to have this publicly available at the same time as the RA is discussing the redrafted code.

If anyone else, as the process goes forward, feels that there is just an irreconcilable gulf between the Code as being drafted and what they want, they could submit either amendments to it, or a complete alternative code, to the RA at the same time.

I'm not sure whether this would make everybody happy and result in an ideal Code of Procedure, but it's the best solution I can currently think of.[/i]

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Post by Fernando Book »

Oni-

I agree with your general analysis, but I'd suggest to change the procedure. At this moment, I think it would be better (and there would be less surprises) to give the RA the initiative, if not to write a new Code of Procedures, to provide the Judiciary some clear directions about what the RA expects from the Code of Procedure.

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Post by Beathan »

Oni --

There are at least two critical problems with your proposal.

First, the public problem with the implementation of the Judiciary Act is not limited to the Code of Procedure. It extends to, in fact it began with, the process being used to appoint judges. Your proposal requires that this problem either be solved or ignored before we can fix the problem concerning the court procedures. The appointment problem appears as difficult to solve as the procedure problem -- and will take some time, and a good bit of effort and compromise, to work out. However, ignoring the problem and simply appointing judges, especially if we just rubber stamp Ash's hand-picked candidates, will exacerbate, rather than resolve, the current problems.

Only if we appoint judicial candidates who will act as a foil to Ash can your plan have any hope of success. However, if we do that, I expect that we will simply deepen the level of disagreement concerning the Procedures by transferring the current public controversy, wholesale, into the Judiciary itself. This transfer might have benefits, but those benefits are not evident to me.

Second, the problem with Ashcroft's Code of Procedure is not merely that it is hard to read. There are serious and substantial problems with the rules themselves -- and with the policy choices and ethnocentrism that informed those rules. Bowing has been taken as the classic example. However, I still see the procedural rules as also overstepping procedure and setting out rules of substantive law. I have highlighted this problem in the rules concerning enforcement of contracts.

One of the most serious defects of the Ashcroft Code was the overwhelming nature of the Code itself -- it has too many words. We cannot solve this problem by writing still more words to explain the glut of words we already have. One of the primary reasons for the repeal of the Ashcroft Code in favor of the Code of Justice was that the task of editing the Ashcroft Code would be a rewriting process that required even more effort than it took to write the Ashcroft Code in the first place -- a task Ash himself has described as herculean.

Further, the very possibility of a "Guide to the Ashcroft Code" indicates a serious problem with the Ashcroft Code itself -- and a problem that the preparation of a Guide cannot solve. We have a duty, as lawmakers and proposers of law, to make our laws as clear and easily understood as possible. We should use simple and understandable language. No citizen should find any part of our law to be unreadable -- or even difficult to read. We have a real promulgation problem if we are obscure and confusing when making laws (including laws concerning legal process). Therefore, if a Guide can and must be written that explains the Code in plain language, this means that the Code itself was not written in plain language even though it could have been. If the Code could have been written in plain language, it should have been. Therefore, if a Guide is possible, we should not write the Guide -- we should rewrite the Code.

In light of the pervasive and multi-faceted problems with Ashcroft's Code of Procedure, I think that the RA acted wisely and well in repealing and replacing it. This is not lamentable at all. It is the only positive step that has been taken since the JA passed (assuming that the passage of the JA was actually itself a positive step).

I also note that the Rules of Justice specifically provide for proposals to be made to fill in any critical gaps people think exist in the bare-bones rules. Rather than kvetch that the rules are too general and leave too many things undefined, we should move forward with the Rules of Justice -- and opponents of those rules should propose supplementary amendments. We, as a community -- or the RA, as a legislature -- could then consider each proposal and assess it in its own right. This process of giving each rule particular consideration will be a great improvement on the "take-it-all or leave-it-all" character the current dispute has taken on.

Again, the proper way to proceed here (and the way we should have proceeded all along) is to determine what a minimalist justice system would look like and then to implement that system, allowing it to evolve on its own terms into something more detailed and fully developed. Personally, I think that we already have such a system in place, with regard to our legal procedures, with the Rules of Justice and our single judge. I am concerned, however, that our only judge is resisting the rules -- and that makes me worry that he will intentionally, out of pique rather than sound policy, actively undermine the rules. This makes me think that we need a new judge -- or at least other judges who do not share this aversion to the Rules of Justice and to the change of direction (toward simplification, even at the cost of losing exhaustive completeness) our community wishes to take.

Beathan

Last edited by Beathan on Thu Dec 21, 2006 2:13 pm, edited 1 time in total.
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Post by Ashcroft Burnham »

[quote="Beathan":13g39w3h]First, the public problem with the implementation of the Judiciary Act is not limited to the Code of Procedure. It extends to, in fact it began with, the process being used to appoint judges. Your proposal requires that this problem either be solved or ignored before we can fix the problem concerning the court procedures. The appointment problem appears as difficult to solve as the procedure problem -- and will take some time, and a good bit of effort and compromise, to work out. However, ignoring the problem and simply appointing judges, especially if we just rubber stamp Ash's hand-picked candidates, will exacerbate, rather than resolve, the current problems.[/quote:13g39w3h]

You think that the system for appointing judges is a problem, but the only problems that you ever found with it were (1) that it required too much time to complete; and (2) that it required candidates to answer hypothetical questions which you considered to be unethical. As to (1), you have spent many orders of magnitude more time posting on the forums than it would have taken anybody to complete the form. In any event, two good people have evidently been prepared to do so, and have both been qualified. As to (2), it seems that only you believes that there is any ethical problem with the hypothetical questions: the multitude of other real-life practitioners from the US, UK and Canada had no issues with it, and you comprehensively failed to provide any meaningful explanation as to how answering hypothetical questions in a qualification test is different to judging real cases based on limited information. As to the absurd suggestion that the successful candidates were "hand picked", both of the candidates who applied were qualified. No picking, therefore, went on.

[quote:13g39w3h]Only if we appoint judicial candidates who will act as a foil to Ash can your plan have any hope of success.[/quote:13g39w3h]

Only if you define "success" as a set of circumstnaces in which your view of how the judiciary should run prevails over mine.

[quote:13g39w3h]Second, the problem with Ashcroft's Code of Procedure is not merely that it is hard to read. There are serious and substantial problems with the rules themselves -- and with the policy choices and enthocentrism that informed those rules. Bowing has been taken as the classic example.[/quote:13g39w3h]

Apart from bowing, what, precisely, do you think are the "policy choices" that are problematic?

[quote:13g39w3h]However, I still see the procedural rules as also overstepping procedure and setting out rules of substantive law. I have highlighted this problem in the rules concerning enforcement of contracts.[/quote:13g39w3h]

Beathan, when you "highlighted" this "issue", I explained that you had bizarrely confused the concept of a contract with the concept of a formal admission of a fact during legal proceedings. You failed to reply to this post. Is this the only area that you see the procedure "overstepping the substantive law"? If so, it is based on a serious misunderstanding of the fundamental nature of contract law to an extent that is extremely worrying for a person who is supposed to be a legal professional.

[quote:13g39w3h]One of the most serious defects of the Ashcroft Code was the overwhelming nature of the Code itself -- it has too many words.[/quote:13g39w3h]

A judgment of a document based on the number of its words is vacuuous. It is substance that counts, not form. Would you say to Shakespeare, "Hamlet has too many words: make it finish in twenty minutes"?

[quote:13g39w3h]We cannot solve this problem by writing still more words to explain the glut of words we already have. [/quote:13g39w3h]

Why do you think that only the number of words written in advance should be counted, not the number needlessly expended arguing about aspects of procedure that could be resolved by detailed rules in advance?

[quote:13g39w3h]One of the primary reasons for the repeal of the Ashcroft Code in favor of the Code of Justice was that the task of editing the Ashcroft Code would be a rewriting process that required even more effort than it took to write the Ashcroft Code in the first place -- a task Ash himself has described as herculean.[/quote:13g39w3h]

If nobody else is capable (either intellectually or in terms of time) of writing detailed rules, is that not a sufficient reason to use the detailed rules that we already have?

[quote:13g39w3h]Further, the very possibility of a "Guide to the Ashcroft Code" indicates a serious problem with the Ashcroft Code itself -- and a problem that the preparation of a Guide cannot solve. We have a duty, as lawmakers and proposers of law, to make our laws as clear and easily understood as possible. We should use simple and understandable language. No citizen should find any part of our law to be unreadable -- or even difficult to read. We have a real promulgation problem if we are obscure and confusing when making laws (including laws concerning legal process). Therefore, if a Guide can and must be written that explains the Code in plain language, this means that the Code itself was not written in plain language even though it could have been. If the Code could have been written in plain language, it should have been. Therefore, if a Guide is possible, we should not write the Guide -- we should rewrite the Code.[/quote:13g39w3h]

This is misconceived. Why should we not say "If you want the basics, look [i:13g39w3h]here[/i:13g39w3h]; if you want the details, look [i:13g39w3h]here[/i:13g39w3h]", rather than, "If you want the basics, look [i:13g39w3h]here[/i:13g39w3h]; if you want the details, you'll just have to guess, and you'd better make sure that you guess right, or else you'll be in trouble"?

[quote:13g39w3h]I also note that the Rules of Justice specifically provide for proposals to be made to fill in any critical gaps people think exist in the bare-bones rules. Rather than kvetch that the rules are too general and leave too many things undefined, we should move forward with the Rules of Justice -- and opponents of those rules should propose supplementary amendments. [/quote:13g39w3h]

The Soothsayer rules are irredeemable. When we have perfectly good detailed rules, we should not try to patch up a set of rules that are incapable of being workable. As I have written before, it would be insane for anybody to spend any amount of time working on details for rules when the present government has shown itself incapable of respecting that sort of work.

[quote:13g39w3h]I am concerned, however, that our only judge is resisting the rules -- and that makes me worry that he will intentionally, out of pique rather than sound policy, actively undermine the rules. This makes me think that we need a new judge -- or at least other judges who do not share this aversion to the Rules of Justice and to the change of direction (toward simplification, even at the cost of losing exhaustive completeness) our community wishes to take.[/quote:13g39w3h]

The concerns that I have about the present rules are very real: it would be reckless of me not to express them. It is even more reckless of those who passed them not to take them serioulsy. It is wholly improper, however, for policy decisions to be based on speculation of the sort that you urge.

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Re: Of Pendulums and Rules

Post by Ashcroft Burnham »

[quote="Diderot Mirabeau":oum9fqgc]This seems to me to be a most unhealthy attitude towards working with and in a community that is governed democratically.

I remember us having one other citizen once who felt that her contributions to the community should be appreciated more tangibly and uncritically. That did not end well for either her or the community.[/quote:oum9fqgc]

I think that you will find that our present situation has more in common with [url=http://www.tv.com/trash-of-the-titans/e ... l:oum9fqgc]a certain episode of "The Simpsons"[/url:oum9fqgc] than the Ulrika schism.

[quote:oum9fqgc] Writing a monolithic body of legislative text and procedural code, expecting people to devour it immediately and putting up what seems to me to be a sophistically inspired rhetorical defense in favour of every single comma in the body of work neglects the serious concern of many citizens in this community of how this work will affect the experience of living in the CDS.[/quote:oum9fqgc]

This is a gross misrepresentation of my responses to constructive feedback on [url=http://forums.neufreistadt.info/viewtop ... 9:oum9fqgc]this[/url:oum9fqgc] thread. My defence has been in favour of the principle of having detailed rules, and the underlying principles of the rules themselves, not of every particular detail.

Highlights include:

[quote="Ashcroft Burnham":oum9fqgc]This is a first draft of the code, so, naturally, it will need refinement. It will be refined based on practical experience and constructive feedback in this thread. Any genuinely constructive feedback would be appreciated.[/quote:oum9fqgc]

[quote="Ashcroft Burnham":oum9fqgc]I'm sure that there are problems with it: it can't be perfect on a first draft Smile I've already spotted an error by way of omission with the summary banishment pro forma, which I will update in a moment. Thank you for taking the trouble to read it properly rather than just dismising it because it is long.[/quote:oum9fqgc]

(That was before Justice [i:oum9fqgc]did[/i:oum9fqgc] just dismiss it for being too long)

[quote="Ashcroft Burnham":oum9fqgc]Hmm... The trouble is, once one gets to know a word, it is not easy to track whether other people find it a difficult word or do not know it. I cannot think of an obvious synonym for "resile", so how about:

[quote:oum9fqgc]
1. No party shall cease to be bound by any agreement contained in a memorandum of admission without leave of the court?[/quote:oum9fqgc][/quote:oum9fqgc]

And on the "Comments on the Code of Procedure" thread:

[quote="Ashcroft Burnham":oum9fqgc]As to the various linguistic points, I shall not reply to them all invdividually. I appreciate that some people might find some parts hard to read: it is always difficult to proofread one's own writings for intelligibility, since one always knows what one meant before one starts reading. What I should like to do is compile a list of the passages that pepole find especially difficult so that I can redraft them all in one go. [/quote:oum9fqgc]

[quote="Ashcroft Burnham":oum9fqgc]Finally, on the question of guides and examples, I very much agree with Pat and Michel - this is important, and I had always planned to do this right from August. Legal education in the community in general is important, and I aim to work with Publius to make sure that a high standard of legal education is delivered. The precedents library that I am slowly developing, starting with the notice of sumamry banishment, is the first step in that direction. [/quote:oum9fqgc]

Where there is the "sophistically inspired rhetorical defense "?

[quote:oum9fqgc]The alternative method really does not seem to be recommendable. Imagine if you had not spent so much time vehemently defending every single sentence in the work but had instead spent it on constructive endeavours - then the whole undertaking may not have seemed like such a massively draining enterprise after all.[/quote:oum9fqgc]

You will note that I responded constructively to all the genuinely constructive criticism that I recieved in the two feedback threads. It was those comments that merely stated "this code is too long" or "the Chief Judge shouldn't be deciding these thigns" that were not constructive, but that made up the bulk of the responses.

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Post by Beathan »

Ash wrote [quote:zwqcapnh]I think that you will find that our present situation has more in common with a certain episode of "The Simpsons" than the Ulrika schism. [/quote:zwqcapnh]

Ash, if you mean that you have written a huge load of garbage, and we refuse to pick it up, I entirely agree.

With regard to the ethical, or at least the ethnocentric, problem in the application process -- the mere fact that two others were willing to undertake the process because they did not see the ethical problem does not show that there is no ethical problem. From an English perspective, there does not appear to be an ethical problem -- so the fact that an English barrister was willing to undertake it makes sense. With regard to a California attorney undertaking it, I have less ability to explain the situation except, perhaps, to say that he may have analyzed the ethical issues from the perspective of the ethical rules that govern attorneys (there is no attorney ethics problem here) rather than from the rules of judicial conduct (where the problem arises).

In any case, I am on record saying that I would be uncomfortable with any judge who was qualified through this process just because that judge was qualified through this process -- and the process institutitionalizes improper judicial prejudice. I stand by that position. I also note that I am not as lonely in my position as Ash claims. In a transcript from the CSDF meeting, Gwyn indicated that she understood my point and thought that there was merit in it -- even though she, and her CSDF colleagues, believed that I was overstating the point and being unnecessarily pigheaded. Further, I note that my ethical point is only one of several points raised in opposition to the qualification exam process -- and Claude, Dim Sum, and others have joined me in my concern that this process imposes an improper "litmus test" on judicial positions (in other words, appoints or favors prospective judges based on their prior prejudice).

With regard to Ash's comparing the Ashcroft Code to Hamlet -- he is right only insofar as applying it will leave no one left living in the hall at the end, but I very much doubt he will evoke a eulogy like that given to Hamlet by Fortinbras. Unlike Hamlet, or Homer Simpson, the critics of the Judiciary Act do not want someone else to do our work for us. We are willing to do the hard work of getting a working judicial system going -- one that is attractive and useful to as many people as possible, one that excludes and alienates as few people as possible. The problem is that the Judiciary Act and the Ashcroft Code take us in exactly the wrong direction -- institutionalizing an unpleasant form of RL elitism and wrapping it in unreadable prose. We want to get things right -- and to take the care and time necessary to get there -- rather than get things wrong right now.

Finally, in every endeavor we undertake, we must remember, we must not lose sight of, our principles and project -- to be a democratic government in SL. Ash says that the judiciary should not be democratic just because it should be meritocratic. This is a false distinction. Abraham Lincoln was a truly democratic figure -- self-educated, born in humble circumstances, dedicated to egalitarian principles -- but he was also an extremely able attorney (but not a formally educated one) and a man of true merit. Meritocracy is not antithetical to democracy, and democracy often reveals, rather than rejects, true merit.

I agree that iRL one of the principal jobs of the judiciary is to protect minorities against the tyranny of the majority. This is important because minorities are stuck in real geographic space and cannot escape the harms a hostile majority might inflict on them. Is that true in SL? Here, we can teleport at will -- literally fly away from oppression. With such abilities, do we really need to sacrifice our majoritarian and democratic impulse, even when constituting a judiciary?

Even if we do, isn't the S.C. already exactly what Ash wants the Judiciary to be -- a self-selected meritocracy? If we already have a meritocratic institution to protect minority rights (and the SC has a good track record in this regard), do we really need another one? Further, as people with democratic principles, if we are concerned with the undemocratic nature of the S.C. (as I have heard some people were -- supporting the Judiciary Act as a check on the S.C.), does it make sense to replace one self-selecting, meritocratic body with another, the only difference between the bodies being that the new one is even more elitist, based on RL class and social distinctions that are imported into SL, and even less subject to democratic checks and balances?

I think not.

Beathan

Last edited by Beathan on Thu Dec 21, 2006 4:33 pm, edited 8 times in total.
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Post by Ashcroft Burnham »

[quote="Beathan":3eppapqd]Ash, if you mean that you have written a huge load of garbage, and we refuse to pick it up, I entirely agree.[/quote:3eppapqd]

Now I see that you preference for short and simple written documents comes from a tendency not to read more than the first few lines of any piece of text. Read on.

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Post by Oni Jiutai »

Fernando, I think this may be a chicken or the egg question. It really doesn't matter who goes first, provided we get the ball moving.

Bethan, I'm sorry if I was unclear, I didn't mean to suggest the the judges should go away, have some meetings, then resubmit the Original Code Ash drafted. That would obviously be silly.

Our main difference on this I think is that I start from the position that the Soothsayer Rules whether better or worse the the Ashcroft Rules in the short term are not a long term solution.

In my view, the critical flaw is that they place the burden of resolving all procedural questions on the litigants themselves and the Judge in the individual case. Even if this could work in practice I think it's an intolerable burden to place on people. The parties, who presumably came to the court hoping for their dispute to be resolved, should not be expected to begin designing the system under which the case will be decided.

It's been suggested that Judges should simply have standard orders. I see two problems with this. Firstly, it gives far too much power to the judge in the individual case to decide issues that people clearly want to be the subject of debate and, ultimately, democratic decision. Secondly, it means that vital issues will differ from judge to judge. It is surely completely unacceptable for key things like the burden of proof, admissibility of evidence, e.t.c. to depend on what judge you get?

Given that I can't share your view that the Soothsayer Rules are a sensible, minimalist place to begin from and the RA is unwilling to pass the Ashcroft Rules it follows that we need a Third Way.

I'm afraid I can't see that the sensible way to do this is for all interested parties to submit individual amendments to the RA. It doesn't seem compatible with any hope of ending with a simple streamlined code. Given that, it seems to me that the best approach is for the judiciary (who have the legal skills and will need to administer the system) to work with the RA (who have the democratic mandate and will need to approve the system for it to be implemented) to try to work together to produce a Code of Procedure everybody can live with.

Now personally, I think we should end that process with something quite similar to what Ash has drafted. This doesn't mean I agree with everything in it, or there aren't things I'd like to change, or that I don't recognise that other people may want other things, for good reasons, and that that their view may prevail over mine.

Part of my thinking behind that conclusion is that I think the hope of truly simple rules which are both easy to apply and just is a mirage. Of course, I'd be delighted to be proved wrong - it would certainly make the day job easier - but until I see some I'm afraid I remain sceptical.

All of that is really beside the point at this moment, what is important is to try to find a way forward that enough people can agree on to be practical.

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Post by Ashcroft Burnham »

[quote="Oni Jiutai":33ng8d0o]Part of my thinking behind that conclusion is that I think the hope of truly simple rules which are both easy to apply and just is a mirage. Of course, I'd be delighted to be proved wrong - it would certainly make the day job easier - but until I see some I'm afraid I remain sceptical.[/quote:33ng8d0o]

This, of course, is one of the main issues. It is why I suggested using the original Code of Procedure, modified as necessary, with easy-to-use guides to supplement it, and, at the same time, let people have arbitration. Then, the two systems could run in parallell, arbitration, and the conventional judiciary, and the theories about "simple" rules and parties agreeing the rules at each hearing, versus detailed rules promulgated in advance, could have a fair test. At present, people seem intent on destroying the detailed approach based on nothing other than unfounded speculation (especially since every last legal system in the world, to my knowledge, bar none, has genuinely simple rules that are genuinely easy to apply to all but a trivial number of cases).

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Post by Beathan »

Oni --

I share your instinct that a system in which procedures are set on a case-by-case basis is not the best one in the longterm. Where I part company with you is in your faith that our RL experiences as lawyers is relevant or helpful in allowing us to predict how SL litigation will proceed, and what desires or preconceptions SL litigants will have, such that we can settle the details of a system in advance. Any system I would favor would have great initial flexibility at the front end -- to allow us to try many different things to see what works here. We are in a brave new world, and I think we need to act like it.

That said, I think that the exploration of a "Third Way" is useful. However, that third way should be minimalistic and extremely felxible, the way the Ashcroft rules will not. For that reason, I tend to think that the "Third Way" will end up looking very much like an expanded version of the Code of Justice -- so much so that we could reasonably proceed by pointing to specific gaps people see in the Code of Justice and filling in those gaps.

With regard to the unworkability of judge-specific case schedule orders, within limits, such orders are exactly what are used in the counties where I principally practice (and are being used with increasing frequency throughout the United States). Obviously, our judge-specific rules are subject to the generally applicable rules of evidence and other procedural rules. However, some judges even change the filing deadlines and briefing requirements, and lawyers and litigants have no real problem adapting.

More importantly, many of the procedures (including evidence rules, hearing rules, examination of witness rules, briefing rules) that we are used to as RL lawyers, we are used to just because we know how the rule works in our RL systems. As a community of many people from many countries, we will have lawyers, judges and litigants who have very different experiences, instincts and beliefs about such things. I don't think that we should settle these things just to have them settled -- especially because in settling any given question, we exclude people who would settle it differently. Rather, we should allow for a maximum number of ideas and systems to be tested -- settling on a final version only because we have seen it work, and work well, in SL, rather than because it is comfortable and familiar from our RL experience. Remember, as with comfort foods -- comfortable legal systems will taste very bad to people from other cultures who share our SL project with us. Forced feeding is not the answer to differences in taste -- toleration, accommodation and mutual respect is -- and all these require flexibility and a willingness to move beyond our ethnocentric comfort zones.

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Post by Ashcroft Burnham »

[quote="Beathan":ymzvu5bx]I share your instinct that a system in which procedures are set on a case-by-case basis is not the best one in the longterm. Where I part company with you is in your faith that our RL experiences as lawyers is relevant or helpful in allowing us to predict how SL litigation will proceed, and what desires or preconceptions SL litigants will have, such that we can settle the details of a system in advance. [/quote:ymzvu5bx]

Similarly, many do not share your faith in the converse, which you have yet to substantiate with any reasoning or analysis beyond "It's SecondLife, therefore it must be very different". Why do you not think that the differences in the medium of communication cause only minimal differences for what is required of a legal system? What differences do you think that it makes, for example, to:

(1) the burden and standard of proof;

(2) the rules of admissibility of evidence;

(3) the kinds of appeals that should be allowed, and the circumstances in which parties should appeal;

(4) the criteria that the judge should use to determine whether or not to allow an adjournment;

(5) whether to use notice pleading or fact pleading;

(6) the categories of evidence that should be disclosed by parties to the proceedings;

(7) the circumstances in which a case should be struck out (dismissed) without a hearing; and

(8) the rule that the person speaking (except for the judge) should stand, and everyone else should sit,

and, in respect of each difference, why that particular difference?

[quote:ymzvu5bx]That said, I think that the exploration of a "Third Way" is useful. However, that third way should be minimalistic and extremely felxible, the way the Ashcroft rules will not. For that reason, I tend to think that the "Third Way" will end up looking very much like an expanded version of the Code of Justice -- so much so that we could reasonably proceed by pointing to specific gaps people see in the Code of Justice and filling in those gaps.[/quote:ymzvu5bx]

That is not a third way: that is the second way.

[quote:ymzvu5bx]With regard to the unworkability of judge-specific case schedule orders, within limits, such orders are exactly what are used in the counties where I principally practice (and are being used with increasing frequency throughout the United States). Obviously, our judge-specific rules are subject to the generally applicable rules of evidence and other procedural rules. However, some judges even change the filing deadlines and briefing requirements, and lawyers and litigants have no real problem adapting. [/quote:ymzvu5bx]

Changing the deadlines is hardly the same as starting from nothing in every case. The original code of procedure gave the judges in individiual cases much discretion - bounded discretion (that you expressly said that you favoured) - to permit parties to amend pleadings, change time limits, impose case-specific directions, and alter the normal course of a hearing.

[quote:ymzvu5bx]More importantly, many of the procedures (including evidence rules, hearing rules, examination of witness rules, briefing rules) that we are used to as RL lawyers, we are used to just because we know how the rule works in our RL systems.[/quote:ymzvu5bx]

Are you saying that each of those rules, in reality, is worthless, and continues to be used only through habit? If so, can you suggest precisely how else that you imagine an adversarial system working?

[quote:ymzvu5bx]As a community of many people from many countries, we will have lawyers, judges and litigants who have very different experiences, instincts and beliefs about such things. I don't think that we should settle these things just to have them settled -- especially because in settling any given question, we exclude people who would settle it differently.[/quote:ymzvu5bx]

You have a bizarre concept of exclusion. Why is a person "excluded", i.e., kept out, merely because the rules of procedure are different to what he or she would like? Do you not accept that, except in the overhwelmingly improbable event that everybody agrees about every rule, people will necessarily be "excluded" by having any given set of rules? Indeed, if people are "excluded" by having something settled in a way different to how he or she would like, does that not mean that every single party who loses a case is, by the same measure, "excluded"? That seems to me like an entirely vacuuous definition of exclusion, and one lacking any relevance.

Further, doing what you are proposing to do no less "excludes" those who would settle the rules in advance, in favour of those who leave things open, as does any individual rule "exclude" people who disagree with it. What you seem to fail to realise is that moving up one level of abstraction does not change the basic principles. In essence, you are claiming that, where there is a dispute about what rule to adopt (X or Y), the answer is, not to evaluate on the merits which of rule X or Y is preferable in general, and adopt that universally, but to have a system in which either rule X or Y can apply at the discretion of the court. But that is itself a Y in an X-Y set, the X being a system where each rule is determined in advance. So, you are effectively saying, "We should have a rule set in advance that there should be no rules set in advance because it is bad to have rules set in advance". That, as I am sure that you will appreciate, contains a contradiction and is therefore incoherent. Indeed, is not the closest thing to your solution for the meta-X-Y question precisely what I have suggested: give people some measure of choice as to whether to go for X (detailed rules, precisely drawn in advance) or Y (vague rules set from scratch in each case) by the choice between litigation and arbitration? Are you not, by seeking to force the judiciary into your arbitration-like model (even though no judiciary in the world has ever succeeded in working like this) forcing an outcome (and "excluding" people) where an alternative ("inclusive") system is available, that you have openly rejected?

Incidentally, why have you never answered the question of how long that you expect it to take before we reach, on your model, detailed rules? Do you ever expect to reach there? Is that the aim? Or do you want vagueness for ever?

[quote:ymzvu5bx]Rather, we should allow for a maximum number of ideas and systems to be tested[/quote:ymzvu5bx]

Except the idea that the rules should be universal and set precisely in advance? Why do you refuse to contemplate testing this model?

[quote:ymzvu5bx]settling on a final version only because we have seen it work, and work well, in SL, rather than because it is comfortable and familiar from our RL experience. [/quote:ymzvu5bx]

Again, I refer to the above: [i:ymzvu5bx]analytically[/i:ymzvu5bx], why should real-life experiences be discarded when dealing with SecondLife? People, after all, are people, arguments arguments, and rules rules whether interacting through a virtual world or not.

Indeed, you seem to cite real-life experience whenever it suits your cause: your arbitration practice, for instance, and judge-made rules: if you think that those experiences usefully inform what might work in SecondLife, why do you not also accept that all other experiences might also usefully inform what might happen in SecondLife?

[quote:ymzvu5bx]Remember, as with comfort foods -- comfortable legal systems will taste very bad to people from other cultures who share our SL project with us. Forced feeding is not the answer to differences in taste -- toleration, accommodation and mutual respect is -- and all these require flexibility and a willingness to move beyond our ethnocentric comfort zones.[/quote:ymzvu5bx]

Again, you make the unjustified assumption that the rules have been adopted unthinkingly merely because they are a product of any given culture. As Oni has pointed out, many rules are entirely novel and some (such as combining criminal/civil into one procedure, and having a Public Judiciary Scrutiny Panel) are extremely radical indeed. Why do you exclude unthinkingly the possibility that these are rules both that are chosen for this system and that have evolved in other systems in consequence of the fact that they are inherently good and workable rules? Why do you think that this entails "force-feeding" anyone anything (any more than your system is "force-feeding" people vagueness and indeterminacy)? Why can we not say "[i:ymzvu5bx]This is a vritual nation. We have our own, singlular culture here. That is based on what we believe works. It may be inspired from real-life cultures in some respects, but only because they provide valuable insights sometimes. We never accept or reject anything merely because of its cultural origin. If you want to be a part of our community, you will need to adapt to our own, unique culture: don't think that you can bring your first-life culture with you wholesale and expect everybody else to share it or accomodate you in doing so[/i:ymzvu5bx]"?

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