Expediting the development of our legal system

Proposals for legislation and discussions of these

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Ashcroft Burnham
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Expediting the development of our legal system

Post by Ashcroft Burnham »

Since I made my [url=http://forums.neufreistadt.info/viewtop ... 9:ssofl0x0]original post[/url:ssofl0x0] on the development of our legal system, it has come to my attention that, in view of its length and complexity, people have found it a little overwhelming, and have hence refrained from commenting.

My initial plan was to elicit comments on my original proposal and then, in consultation with those who had commented, and those on the S. C. and R. A. who have the power to do these things, and based on those comments, jointly come up with a concrete way of implementing the product of those discussions. It seems, however, that I somewhat underestimated the amount of time and effort on the part of others that it would require to produce such a product, and so, partly in consequence of a suggestion to this effect made by Gwyneth yesterday, I shall now put forward an alternative plan.

My alternative plan is to post on this forum a draft [b:ssofl0x0]Judiciary Bill[/b:ssofl0x0] to be presented before the Representative Assembly on its next meeting. The Bill will contain all that is required (including constitutional amendments) to establish the legal system as I had proposed it. The constitutional amendments, however, will be by way of a skeletal framework; because (1) I propose a common law system, and (2) I propose that, subject to any Act of the R. A., the courts shall have inherent jurisdiction to govern their own proceedings, the rest of the details can be set out by non-legislative means (i.e., by a Code of Procedure issued by the Judiciary Commission (or a joint Code of Procedure issued by the Judiciary Commission and Scientific Council, making provisions for proceedings in the Court of Scientific Council as well as the Courts of Common Jurisdiction), and by Judges (or, to start with, the Judge) of Common Jurisdiction making binding precedents in individual cases), the details can be fixed by the Judiciary Commission/Judge(s) without the involvement of anybody else.

Nobody need worry, however, that the Judiciary Commission would be granted excess powers thereby, because, as in all common law jurisdictions, the Courts of Common Jurisdiction would always be subject to any act of the Representative Assembly, such that the Representative Assembly could pass any Act varying or abolishing any rule contained in the Code of Procedure, or abolishing or modifying (in respect of all future cases) any rule created by a precedent-setting decision of the courts. The Judiciary Commission would be able to provide technical advice on the drafting of the legislation, but the Representative Assembly would not be bound to follow or seek it, and the Judiciary Commission's advice should not encompass advice on the desirability policy ends sought to be achieved by any Act, but only the legal implications and technicalites of drafting.

I am posting this draft Bill here to elicit comments on it: if I receive comments, I will consider revising the Bill to reflect them. If I do not, I will submit this draft bill unaltered (unless I have thought of any amendments of my own) to the next session of the R. A.. The Bill would, if enacted, create the posts of Chair of the Judiciary Commission and Chief Judge of Common Jurisdiction (which are largely overlapping posts, although, if, in many years to come, the state becomes big enough, they could conceivably be filled by two separate people), to be appointed by the Scientific Council. It is to those two posts that I seek appointment in order to continue to develop the legal system as I had planned (subject, of course, to any Acts of the Representative Assembly).

[b:ssofl0x0]The Judiciary Bill
[i:ssofl0x0]DRAFT[/i:ssofl0x0][/b:ssofl0x0]

1. The following section shall be inserted at the end of the Constitution, but before the table of amendments:

***

[b:ssofl0x0]Article VII - The Judiciary[/b:ssofl0x0]

1. There shall be a Judiciary Commission, the chair of which shall be appointed by simple majority vote in the Scientific Council, and who shall hold office until resignation or successful impeachment, whichever is sooner.

2. The chair of the Judiciary Commission shall have the power:

(a) to appoint a Chief Judge of Common Jurisdiction, who shall hold office until resignation or successful impeachment, whichever is sooner;

(b) to determine the total number of Judges of Common Jurisdiction that shall hold office at any given time, who shall each hold office until resignation or successful impeachment, whichever is sooner;

(c) subject to any Act of the Representative Assembly, and the exercise of any authority delegated thereby, and subject to any contrary proclaimation of the Guildmeister, to commission and, once commissioned, maintain and administer as many court-houses as the chair shall deem appropriate, for the purposes of holding trials and other judicial hearings, and any other purposes as the chair shall deem appropriate, provided always that neither the Representative Assembly or the Guild individually or between shall prohibit the commissioning, construction, maintenance and continued use of at least one court-house;

(d) to expend any monies held by the Judiciary Commission for any purposes connected with the discharge of any of the functions of the Judiciary Commission;

(e) to employ, for valuable remuneration or otherwise, such deputies and officers, and to delegate to them such functions, as the chair shall deem appropriate;

(f) to provide, or arrange to have provided, advice to citizens who may submit bills to the Representative Assembly, or any official, or delegate of that official, charged with drafting or approving regulations under powers delegated to her or him by the Constitution or any Act of the Representative Assembly, concerning the drafting of such legislation or regulations, provided always that the Judiciary Commission shall not provide advice as to the desirability of any policy objective of such legislation or regulations;

(g) to publicise, both in the Confederation of Democratic Simulators, and elsewhere, the judicial sysetm of the Confederation of Democratic Simulators, or publicise the Confederation of Democratic Simulators (or any geographic subset thereof) by publicising its judicial system;

(h) to provide, and oversee the provision by others of, education concerning the law and legal system of the Confederation of Democratic Simulators;

(i) to maintain and publicise a record of all judicial proceedings, precedents and other public official judicial documents; and

(j) to bring impeachment proceedings against any Judge of Common Jurisdiction.

3. Even when not sitting as a Judge of Common Jurisdiction in an individual case, the Chief Judge of Common Jurisdiction shall have the power:

(a) to determine who other than her or himself shall be appointed to be a Judge of Common Jurisdiction;

(b) to determine which Judges of Common Jurisdiction shall hear which cases, or parts thereof;

(c) to issue general directions concerning procedure in Courts of Common Jurisdiction, which shall, subject to any contrary provision in the Constitution or any Act of the Representative Assembly, have the force of law;

(d) to determine which Courts of Common Jurisdiction shall be superior, and which inferior; and

(e) to bring impeachment proceedings against the Chair of the Judiciary Commission or any other Judge of Common Jurisdiction.

4. Nothing in this Constitution shall prevent a single person holding office both as the Chair of the Judiciary Commission and the Chief Judge of Common Jurisdiction simultaneously or in succession.

5. Only Judges of Common Jurisdiction shall preside over proceedings in any trial or other hearing, or deliver any judgment as to the law in any Court of Common Jurisdiction, or otherwise exercise any of the powers of any Court of Common Jurisdiction, save for those powers exercisable by juries, and any power, not exercised during the course of a trial or other hearing, deemed by any Judge of Common Jurisdiction to be administrative in nature, providing always that any party may appeal to a Judge of Common Jurisdiction from any such administrative decision.

6. Only Judges of Common Jurisdiction or juries empanlled in accordance with law shall deliver any judgment or verdict as to any question of fact in any trial or hearing in any Court of Common Jurisdiction.

7. Subject to any powers of the Scientific Council when sitting as a court expressly stated in the text of this Constitution, Courts of Common Jurisdiction, and only Courts of Common Jurisdiction, shall have the power when giving judgment on a disputed matter between two or more parties (who must be residents of SecondLife or bodies corporate, including states, recognised as such by the law of the Confederation of Democratic Simulators, but who need not be citizens of the Confederation of Democratic Simulators):

(a) to make binding determinations of the rights, duties, powers, privilidges, immunities, liabilities and disabilities of any or all such parties according to the law of the Confederation of Democratic Simulators;

(b) to make binding determinations of any facts in dispute between any or all such parties, provided that making such determinations are necessary in order to make such a determination as mentioned in paragraph (a) above, or (c) below;

(c) subject a jury of at least four citizens of the Confederation of Democratic Simulators finding in accordance with law a party to have acted culpably, to impose on that party any penalty, including, but not limited to, banishment from any or all terratory of the Confederation of Democratic Simulators, either permanently or for such shorter period as shall be specified by the court, and forfeiture of any SecondLife asset, either immediately or suspended on such conditions as the court may prescribe;

(d) to make any orders such as to give effect to the rights, duties, powers, privilidges, immunities, liabilities and disabilities of any party according to the law of the Confederation of Democratic Simulators, including any law relating to judicial procedure, or any other person on behalf of whom any party makes any claim, or to give effect to any penalty imposed by any Court of Common Jurisdiction; and

(e) to order that any person be removed from the court-house at which any trial or any other hearing is being held, or, if he or she refuses to be removed, banished from the Confederation of Demcratic Simulators for the duration of that trial or other hearing on the ground that that person is disrupting court proceedings, improperly interfereing with the administration of justice, or attempting to do so.

8. All trials and other hearings in the Court of Common Jurisdiction, shall be held in public, and, subject to section 7(e) above, any person (whether or not a citizen of the Confederation of Democratic Simulators) shall be entitled to observe the entirety of such proceedings.

9. When making any binding determination of the rights, duties, powers, privilidges, immunities, liabilities and disabilities according to the law of the Confederation of Democratic Simulators of any parties in any proceedings in any Court of Common Jurisdiction, Judges of Common Jurisdiction shall be bound by the following sources of law, each item in the following list taking precedence over each subsequent item:

(a) the Constitution;

(b) any duly ratified Act of the Representative Assembly;

(c) any regulations made under any powers delegated, whether directly or indirectly, by any duly ratified Act of the Representative Assembly;

(d) any judgment of the Scientific Council sitting as a court (or of the Scientific Council in any capacity before the passing of the [b:ssofl0x0]Judiciary Act[/b:ssofl0x0]) that establishes a precedent;

(e) any judgment of any superior Court of Common Jurisdiction that establishes a precedent; and

(f) any judgment of any Court of Common Jurisdiction of equal superiority that establishes a precedent.

10. A judgment establishes a precedent where, in order to determine the outcome of the proceedings, or any part thereof, the judge or judges who determined such an outcome (and, if, where more than one judge so determines, they disagree, a simple majority of them) reach any conclusion or conclusions regarding the law of the Confederation of Democratic Simulators, that conclusion, and the reasoning used in reaching that conclusion, being the precedent set thereby.

11. A Judge of Common Jurisdiction, when delivering any judgment in any proceedings, or part thereof, in any Court of Common Jurisdiction, shall be bound to conclude that any duly ratified Act of the Representative Assembly is constitutional and has binding effect.

12. Nothing in this Constitution shall preclude any procedure whereby a party to proceedings in any inferior Court of Common Jurisdiction may appeal the outcome of such proceedings to any superior Court of Common Jurisdiction.

13. Any Resident of SecondLife, or any body corporate (including any state) recognised by the law of the Confederation of Democratic Simulators, whether or not a citizen of the Confederation of Democratic Simulators, shall be entitled to commence proceedings to resolve any dispute capable of being resolved in accordance with the law of the Confederation of Democratic Simulators, in a Court of Common Jurisdiction.

15. Subject to any provision in this Constitution, and any duly ratified Act of the Representative Assembly, Courts of Common Jurisdiction shall have inherent jurisdiction to govern their own proceedings.

16. The Court of Common Jurisdiction shall not have the power to hold any impeachment hearing, or to order that any public official who holds office in the Confederation of Democratic Simulators (whether a Judge of Common Jurisdiction, a member of the Representative Assembly, a member of the Scientific Council, a member of the Artisanal Collective, or other such body) cease to hold such public office, or be suspended therefrom, whether with or without pay.

***

2. The following sections of the Constitution shall be repealed:

(a) Article III, Section 6, apart from the first sentence thereof (Scientific Council - Hearings, Trials and Ratifications);

(b) Article III, Section 7 (Scientific Council - Alternative Dispute Resolution);

(c) Article III, Section 8 before the beginning of the sentence that starts, "In regard to (sic) the Representative Branch" (Powers of the Scientific Council),

and the title of Article III, Section 6 shall be changed to "Ratification of bills passed by the Representative Assembly".

3. The following shall be inserted in the Constitution between Article III, Section 6 and Article III, Section 8:

***

[b:ssofl0x0]Section 7 - The Court of Scientific Council[/b:ssofl0x0]

1. The Scientific Council shall sit as a court when it exercises, or is considering whether to exercise, its power:

(a) to impeach any person; or

(b) to allow any appeal from any Court of Common Jurisdiction.

2. When the Scientific Council sits as a court, it shall be known as "The Court of Scientific Council".

3. When sitting as a court, the Scientific Council shall be presided over by an odd number of judges greater than one, each of whom shall be members of the Scientific Council, not also being Judges of Common Jurisdiction or the Chair of the Judiciary Commission.

4. The Dean of the Scientific Council shall determine which members of the Scientific Council sit as judges in any trial or other hearing before the Court of Scientific Council.

5. Where not all Judges of the Court of Scientific Council agree on a judgment in any proceedings before it, the judgment of the Court shall be that agreed upon by a simple majority of those judges presiding over those proceedings.

6. The Scientific Council, when sitting as a court, shall be bound to conclude that any duly ratified Act of the Representative Assembly is constitutional and has binding effect.

7. All trials and other hearings before the Scientific Council when sitting as a court, shall be held in public, and, subject to section 8 below, any person (whether or not a citizen of the Confederation of Democratic Simulators) shall be entitled to observe the entirety of such proceedings.

8. The Court of Scientific Council shall have the same powers as Courts of Common Jurisdiction as is conferred by Article VII, section 7(e) of this Constitution ([i:ssofl0x0]persons misbehaving in court[/i:ssofl0x0]).

9. The Court of Scientific Council shall sit without a jury.

10. The Court of Scientific Council shall have the power to make such orders as is necessary for the exercise of the powers conferred upon it by this Constitution or any duly ratified Act of the Representative Assembly.

11. Subject to any provision in this Constitution, and any duly ratified Act of the Representative Assembly, the Court of Scientific Council shall have inherent jurisdiction to govern its own proceedings.

***

4. The following shall be added to the Constitution immediately at the end of Article III, Section 8 ([i:ssofl0x0]Powers of the Scientific Council[/i:ssofl0x0]):

***

[i:ssofl0x0]With respect to the judiciary[/i:ssofl0x0]:

1. The Scientific Council, when sitting as a court, may hear and determine an appeal from any superior Court of Common Jurisdiction (or any inferior Court of Common Jurisdiction if no superior Court of Common Jurisdiction will entertain an appeal on the matter), and either uphold or overturn the decision from which the appeal is made, but only on the grounds that the Court of Common Jurisdiction from which the appeal is sought (a) acted in the proceedings out of which the appeal arises outside its jurisdiction as conferred by the text of this Constitution; and (b) that, by so doing, whether wholly or in part, incorrectly determined any issue in dispute between any parties to those proceedings (including any question of law necessary to resolve such a dispute).

2. Without prejudice to the specificity of the foregoing, the Scientific Council when sitting as a court shall not in any circumstances have the power to determine any appeal from any Court of Common Jurisdiction only on any or all of the following grounds:

(a) that the Court of Common Jurisdiction reached the wrong conclusion on any question of fact;

(b) that the Court of Common Jurisdiction wrongly interpreted or applied the common law of the Confederation of Democratic Simulators;

(c) that the Court of Common Jurisdiction wrongly interpreted or applied any Act of the Representative Assembly (except where the Court of Common Jurisdiction expressly purports to disapply any Act of the Representative Assembly); or

(d) that the Court of Common Jurisdiction wrongly interpreted, applied, or disapplied any regulation (or similar) made by any person or body deriving its power to do so from the Representative Assembly, or any person or body who, in turn, derives her, his or its power to do so from the Representative Assembly,

nor shall any of those grounds have any bearing on the outcome of any appeal from any Court of Common Jurisdiction to the Court of Scientific Council.

[i:ssofl0x0]Impeachment proceedings[/i:ssofl0x0]

1. Impeachment is an order that a holder of public office cease to hold such public office, be disqualified from holding such office, or is suspended from such office for any time with or without pay, or any combination thereof.

2. A person may only be impeached by the Scientific Council, sitting as a court, following a trial in accordance with law.

3. Only persons (or persons acting on behalf of bodies) specified in the text of the Constiution shall have the power to commence impeachment proceedings.

4. Nothing in this Constitution shall prevent a Court of Common Jurisdiction from banishing any person, even where that person is a holder of public office in the Confederation of Democratic Simulators, and banishment would preclude that person from continuing to hold such public office.

5. When a member of the Scientific Council brings impeachment proceedings, that person shall not sit as a judge of the Court of Scientific Council hearing those proceedings at any stage thereof.

***

5. The following sections of the constitution shall be repealed:

(a) Article I, Section 7 (Powers of the Representative Assembly), the following text: (i) "The leader of the RA sits as the leader of the Artisanal branch if the Artisanal branch seeks to impeach a member of the Philosophic branch," and (ii) "The leader of the RA sits as the leader of the Philosophic branch if the Philosophic branch seeks to impeach a member of the Artisanal branch"; and

(b) Article II, Section 4 (Powers of the Artesanal Collective), the following text: (i) "The leader of the AC sits as the leader of the Representative branch if the Representative branch seeks to impeach a member of the Philosophic branch," and (ii) "The leader of the AC sits as the leader of the Philosophic branch if the Philosophic branch seeks to impeach a member of the Representative branch".

6. The following shall be added to the Constitution immediately at the end of Article II, Section 4 ([i:ssofl0x0]Powers of the Artisanal Collective[/i:ssofl0x0])

***

With respect to the judiciary:

1. The Artisanal Collective may bring impeachment proceedings against the Chair of the Judiciary Commission on the ground that he or she has failed to act with due fiscal responsibility.

***

7. The title of the Neufreistadt Constitution shall hereafter be, "The Constitution of the Confederation of Democratic Simulators".

8. Any reference in any Act of the Representative Assembly passed before the date on which this Act comes into force to "Neufreistadt" shall be taken to be a reference to the Confederation of Democratic Simulators, unless the context, or any duly ratified Act of the Representative Assembly passed after the date on which the [b:ssofl0x0]Judiciary Act[/b:ssofl0x0] was passed, otherwise so requires.

9. Article VI of the Constiution shall be replaced with the following text:

***

Article VI - Citizenship

1. A citizen of the Confederation of Democratic Simulators is a resident of SecondLife who has been granted title to any land by the Confederation of Democratic Simulators, and who holds title under the Confederation of Democratic Simulators, for as long as he or she holds such title.

2. Without prejudice to any power of any institution of government to subsitute, or empower another person, institution or group to substitute, any land held by any citizen for any other land the holding of which would continue to entitle the person whose land has been substituted to be a citizen of the Confederation of Democratic Simulators, no citizen shall be deprived of citizenship in the Confederation of Democratic Simulators, nor shall any person, whether a citizen or not, be banished from any public land in the Confederation of Democratic Simulators, without trial in accordance with law, or consent not to be so tried.

3. Section 2 above is subject to any rule of law whereby a person is deemed to have consented not to be tried by having failed within reasonable time to respond or respond fully to any notice sent to that person in respect of any such prospective trial.

4. Section 2 above is subject to any rule of law whereby a person may summarily be banished by any citizen of the Confederation of Democratic Simulators appointed for such a purpose by any Act of the Representative Assembly (or by any person or body deriving her his or its power to do so from any such Act), for up to fourteen consecutive days (but without revocation of citizenship or forfeiture of any asset).

5. Section 2 above is subject to any rule of law whereby a person may be banished temporarily by Order of a Court of Common Jurisdiction pending such a trial as is mentioned therein (but without revocation of citizenship or forfeiture of any asset).

6. Any citizen may cease to become a citizen by submitting a notice in a form that may be prescribed by any Act of the Representative Assembly (or, if no such form is specified, by notifying the Guild-Meister) one week in advance of the date on which that person is to cease to be a citizen.

***

10. For the purposes of Article IV, Section 4 of the Constitution, Sudane Erato and Rudeen Edo are empowered to issue summary banishments of up to fourteen days where, otherwise than in the course of judicial proceedings, there are substantial grounds for believing that the person in question, if not summarily banished:

(a) will interfere with the course of justice;

(b) will damage, delete or dissipate any public asset of the Confederation of Democratic Simulators, or any private asset of any citizen thereof; or

(c) will cause substantial distress, harassment or annoyance to any citizen or citizens of the Confederation of Democratic Simulators, or substantially interfere with any event held in any territory of the Confederation of Democratic Simulators.

9. Any person summarily banished pursant to section 8 above shall, within 48 hours of being so banished, be served with a written notice stating:

(a) that he or she has been summarily banished;

(b) the reason or reasons that he or she has been summarily banished;

(c) that the summary banishment shall expire fourteen days after it was imposed; and

(d) that the person banished has the right, upon submitting notice in writing to a Court of Common Jurisdiction, in any form that shall be prescribed by the Chief Judge of Common Jurisdiction (and, if such a form is prescribed, details thereof), to make representations to a Court of Common Jurisdiction as to why he or she should not be made the subject of an interim banishment until the trial, if any.

12. For the purposes of Article IV, Section 4 of the Constitution, Sudane Erato and Rudeen Edo are empowered to issue summary banishments of up to fourteen days during the course of judicial proceedings when so ordered by any judge (whether of any Court of Common Jurisdiction or the Court of Scientific Council) presiding over those proceedings, provided always that such a banishment is revoked within one hour of the conclusion of such proceedings (or the end of fourteen days, whichever is sooner), unless one or more of the conditions in Seciton 8 above is met, in which case notice in the form prescribed in Section 9 above must be served on the person banished within 48 hours of it becoming known that one or more of the conditions in Section 8 above were met.

13. The following shall be inserted at the end of Section 8 of the Terms of Service:

[b:ssofl0x0]8.2 - Judicial Proceedings[/b:ssofl0x0]

By entering into this agreement, you hereby give your unqualified and irrevocable consent for any records of any conversations or other communication, in any form whatsoever conducted using the computer programme, "SecondLife", and any other communication concerning the use of that programme, whether made before or after this agreement was entered into, to be used in evidence in any in-world judicial proceedings, and for any records of such proceedings (incuding records of anything said by or to you during those proceedings) to be made available to the public in perpetuity.

***

14. All citizens of the Confederation of Democratic Simulators shall consent to the variation in the Terms of Service provided for in Section 13 above on or before the 1st of September 2006.

****** END ******

Please note that Sections 10 - 12 above are intended to be interim, transitional provisions, to be repealed by a future [b:ssofl0x0]Marshals of the Peace Act[/b:ssofl0x0], which should make more comprehensive provisions for temporary banishment (and relieve poor Sudane of the burden of being the only person able to banish (if such is technically feasable), or at least from having to be mentioned by name in a statute).

As stated above, any comments or questions are more than welcome, but, in case this bill is overwhelming, too, I will submit it as it is to the next session of the Representative Assembly if there are no comments, unless I think of anything that needs to be added or altered.

Ashcroft Burnham

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Patroklus Murakami
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Post by Patroklus Murakami »

I think this is a good way forward Ashcroft. I agree that it is better to set up a comprehensive framework for our legal system and then fill in the details later than to forge a consensus on all points and then work out how to implement it. The advantage of the system you have proposed is that we get a functioning, thought-out legal system now, not in two or three years time. Once again, thank you for all the work you've put into this, I think you have saved us months (if not years) of effort.

But we must make sure that we take care with the elements of your proposal which are more difficult to revoke. I will cover the detail of this, along with other specific points on your proposal, in another post.

What I would prefer to do in this post is to seek illustration of the legal system you have outlined by inviting you to comment on a number of scenarios. (N.B. In presenting these scenarios I am not making any comment on the validity of the allegations).

What I would like to know is "How would this system work in practice?" You have already covered one of the scenarios I envisaged in another post (how would this legal system deal with griefers). Here are some others:

[list:2shmtnzo]The legal system you have outlined would allow non-citizens to bring cases against citizens of the CDS. You may be aware that Ulrika Zugzwang has alleged that citizen(s) of the Confederation reverse-engineered her original designs with the approval of the government and that these were used for a time in Neualtenburg (as was). If UZ were to bring a case against said named individuals what would happen? Given that any evidence of this no longer exists in NFS (if it ever did), how would the Court reach a conclusion?

Ulrika also has an outstanding claim for payment for work in the development of the city. The city entered into negotiations with her on this but the two sides were unable to agree final terms. Again, what would happen if UZ were to pursue this claim through our courts?

I have a business in the Marketplatz selling Japanese furniture but this is not incorporated in Neufreistadt. If a citizen (or non-citizen) were to be dissatisfied with their purchase, would they be able to pursue a claim against me in the Courts?

I have other businesses outside the city (one is a set of shops I lease to other vendors in Orient sim). Would they be able to pursue a claim against me in these Courts? Would it make a difference if they were CDS citizens or not?

If I've read your proposals correctly, a non-citizen would be able to pursue a case against another non-citizen through our Court system. Let's imagine that this was a sim owner who commissioned a builder to design and produce a small village in their sim. Said builder then deleted the structures after taking payment and refuses to pay back the fee or rebuild the commission. How would this case be brought to the CDS Courts and what sanctions would be available?[/list:u:2shmtnzo]

My final question/concern is that we may become victims of our own success :). If our Courts are well-respected and seen as independant, impartial and fair, we may become the de facto judicial system for Second Life. Can we afford to run a legal system for the benefit of the whole SL community? Or should we be focussing on those who pay the bills i.e. citizens of Neufreistadt/CDS?

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Ashcroft Burnham
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Response to examples

Post by Ashcroft Burnham »

[quote="Patroklus Murakami":9ddk1xjd]I think this is a good way forward Ashcroft. I agree that it is better to set up a comprehensive framework for our legal system and then fill in the details later than to forge a consensus on all points and then work out how to implement it. The advantage of the system you have proposed is that we get a functioning, thought-out legal system now, not in two or three years time. Once again, thank you for all the work you've put into this, I think you have saved us months (if not years) of effort.[/quote:9ddk1xjd]

Thank you for your kind words. I have found it most enjoyable so far. I am honoured to be involved in this project.

[quote:9ddk1xjd]But we must make sure that we take care with the elements of your proposal which are more difficult to revoke. I will cover the detail of this, along with other specific points on your proposal, in another post.

What I would prefer to do in this post is to seek illustration of the legal system you have outlined by inviting you to comment on a number of scenarios. (N.B. In presenting these scenarios I am not making any comment on the validity of the allegations).

What I would like to know is "How would this system work in practice?" You have already covered one of the scenarios I envisaged in another post (how would this legal system deal with griefers). Here are some others:[/quote:9ddk1xjd]

I will answer them one by one.

[quote:9ddk1xjd]

  • The legal system you have outlined would allow non-citizens to bring cases against citizens of the CDS. You may be aware that Ulrika Zugzwang has alleged that citizen(s) of the Confederation reverse-engineered her original designs with the approval of the government and that these were used for a time in Neualtenburg (as was). If UZ were to bring a case against said named individuals what would happen? Given that any evidence of this no longer exists in NFS (if it ever did), how would the Court reach a conclusion?[/quote:9ddk1xjd]

    I cannot tell you what the conclusion would be, of course, because the judge (and, if applicable, jury) would have to have heard all the evidence and arguments. But you are not asking that in any event, you are asking for the process. In simple terms, the process would be this: Ulrika would file a Notice in the Ordinary at the court, and serve it on those whom she alledges have reverse engineered her designs. Those defendants would then have an opportunity to file and serve a Notice in Response. Those notices would set out in outline the issues that the court has to decide.

    A hearing date would then be fixed. On that date, both sides would have a chance to present their arguments in the in-world court. The jury (if there is one) would decide the factual issues, and the judge the legal issues. The basis of the decision of the factual issues is straightforward: the judge (or jury, if there is one) would hear all the evidence, both from witnesses testifying in court, and any documentary evidence presented, and, after each party has had the chance to make a speech, and after a summing up from the judge, the factual decisions would be reached.

    As to the legal questions (such as what the legal consequences of reverse-engineering are, if any, in the law of the Confederation of Democratic Simulators), that would be decided, just as any novel point in a common law jurisdiction, by the judge hearing arguments from both parties, citing analogous precedent (if any), and making general arguments about whether it makes sense, in the scheme of law as it has so far evolved, for the law to be as they contend it to be. The judge would consider the arguments for both sides carefully, and then, in a written judgment, give her or his conclusions on those questions, and a thorough explanation of the reasons therefor. He or she would then apply the law as he or she had found it to be, and make whatever orders as appropriate flowed from that.

    [quote:9ddk1xjd]Ulrika also has an outstanding claim for payment for work in the development of the city. The city entered into negotiations with her on this but the two sides were unable to agree final terms. Again, what would happen if UZ were to pursue this claim through our courts?[/quote:9ddk1xjd]

    Again, the same process would apply (and if she brought both actions, the matter might be consolodated into a single case for efficiency); in this case, the court would have to decide whether, in the circumstances as agreed between the parties, or, if not agreed, as the court finds them to be, any payment is due, and, if so, in what quantity and by whom.

    [quote:9ddk1xjd]I have a business in the Marketplatz selling Japanese furniture but this is not incorporated in Neufreistadt. If a citizen (or non-citizen) were to be dissatisfied with their purchase, would they be able to pursue a claim against me in the Courts?[/quote:9ddk1xjd]

    Yes, definitely: one of the important objectives of the justice system is to encourage consumer confidence in dealings with Confederation traders by giving them an opportunity to seek redress in the courts. Whether the claim succeeded would, of course, depend on its merits.

    [quote:9ddk1xjd]I have other businesses outside the city (one is a set of shops I lease to other vendors in Orient sim). Would they be able to pursue a claim against me in these Courts? Would it make a difference if they were CDS citizens or not?

    If I've read your proposals correctly, a non-citizen would be able to pursue a case against another non-citizen through our Court system. Let's imagine that this was a sim owner who commissioned a builder to design and produce a small village in their sim. Said builder then deleted the structures after taking payment and refuses to pay back the fee or rebuild the commission. How would this case be brought to the CDS Courts and what sanctions would be available?[/quote:9ddk1xjd]

    There would be a rule of law, which would be developed like any rule of the common law, i.e., on a case-by-case basis, that governed what cases might be brought in our courts by reference to the degree of relevance to the Confederation or citizens thereof. At the one end of the spectrum, there would be cases that clearly fall within that jurisdiction, such as cases between two citizens over events in the sim. On the other hand, there would be cases that clearly fall outside the jurisdiction, such as cases between two people with no connection whatsoever to the Confederation, about something that has no connection whatsoever with the confederation. Between those two extremes, there will be cases that are nearer the middle. Some, such as disputes between two citizens other than taking place on the sim, will still be fairly straightforward. Other cases will be less straightforward, and, as with all matters of the common law, the detailed boundary would have to be developed on a case-by-case basis. Important factors to consider would be the effectiveness of the legal system if it was found that the matter was outside its jurisdiction, the effectiveness (and relevance) of any powers of enforcement agains the parties, and the extent to which the matter in question affects the affairs of the Confederation or any citizens thereof.

    [quote:9ddk1xjd]My final question/concern is that we may become victims of our own success :). If our Courts are well-respected and seen as independant, impartial and fair, we may become the de facto judicial system for Second Life. Can we afford to run a legal system for the benefit of the whole SL community? Or should we be focussing on those who pay the bills i.e. citizens of Neufreistadt/CDS?[/quote:9ddk1xjd]

    We can if, as I propose, we charge court fees to the unsuccessful party to any litigation.

Ashcroft Burnham

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Revised Judiciary Bill

Post by Ashcroft Burnham »

[b:344tk55v][u:344tk55v]Revised Judiciary Bill[/b:344tk55v][/u:344tk55v]

After further consideration of some of the contents of the original Draft Judiciary Bill, and after reading some comments on the matter in these fora, I have drafted a revised Judiciary Bill. The text of the revised Bill is below, but here are some highlights:

[b:344tk55v]* Preamble[/b:344tk55v]

There is now a brief explanatory preamble.

[b:344tk55v]* Chapters[/b:344tk55v]

The Bill is now divided into chapters to make it easier to find particular parts thereof.

[b:344tk55v]* Juries[/b:344tk55v]

The requirement for jury trial is removed from the constitution, following concerns as to how practical that it is to hold jury trials in SecondLife. The constitution still makes provision for trial by jury, but it is not required in any case. It would now be a matter for the Courts of Common Jurisdiction, exercising their inherent power to govern their own proceedings, to determine which, if any, cases shall be tried by a judge and jury, rather than judge alone. Extra provision is, however, added requiring citizens to serve on juries if requested so to do. The purpose of these amendments is to enable experimentation with the practicality of holding jury trials.

[b:344tk55v]* Terms of Service[/b:344tk55v]

Further amendments are proposed to the Terms of Service, updating the name to the "Confederation of Democratic Simulators", and stating that all disputes regarding the subject-matter of the agreement shall be resolved exclusively by our in-world judicial system.

[b:344tk55v]* The Commercial Court[/b:344tk55v]

The Commercial Court established by the [b:344tk55v]NL4-14 Registration and Incorporation Act[/b:344tk55v] is abolished, and its jurisdiction subsumed into that of the Courts of Common Jurisdiction. This was a mistaken omission from the first Bill. This is a temporary measure, since our company law needs some significant reforms.

[b:344tk55v]* Marshals of the Peace[/b:344tk55v]

Since drafting the first Draft Bill, I learnt that there was already a fairly sophisticated, albeit presently informal, system of people who have the power to issue summary banishments. Therefore, there is no need for a separate Marshals of the Peace Act, as the infrastructure is already established. Accordingly, the Judiciary Bill now incorporates fully detailed provisions for Marshals of the Peace.

[b:344tk55v]* Miscellaneous[/b:344tk55v]

There are a large number of less significant changes, including spelling corrections, improved forms of wording and formatting, a new power for the Judiciary Commission to "[i:344tk55v]provide advice to other governments and similar institutions in SecondLife and other such virtual worlds concerning the establishment and development of judicial systems therein[/i:344tk55v]", and clarification on the differential circumstances in which the Chair of the Judiciary Commission, as opposed to Judges of Common Jurisdiction, can be impeached, as well as other minor modifications.

The revised Bill is reproduced in full below:

******

[b:344tk55v]The Judiciary Bill
[i:344tk55v]Revised[/i:344tk55v][/b:344tk55v]

[i:344tk55v]A Bill to make provision for a professional judiciary, judicial procedure, to reform citizenship rights and duties with respect thereto, to make provisions for marshals of the peace, and to make repeals and consequential amendments to the Constitution and certain Acts of the Representative Assembly, as well as to make provisions for bringing official documents in line with the recent change of name to "The Confederation of Democratic Simulators"[/i:344tk55v].

[b:344tk55v]Chapter I - the Judiciary Commission and the Common Jurisdiction[/b:344tk55v]

1. The following section shall be inserted at the end of the Constitution, but before the table of amendments: –

***

[b:344tk55v]Article VII - The Judiciary[/b:344tk55v]

1. There shall be a Judiciary Commission, the chair of which shall be appointed by simple majority vote in the Scientific Council, and who shall hold office until resignation or successful impeachment, whichever is sooner.

2. The chair of the Judiciary Commission shall have the power: –

(a) to appoint a Chief Judge of Common Jurisdiction, who shall hold office until resignation or successful impeachment, whichever is sooner;

(b) to determine the total number of Judges of Common Jurisdiction who shall hold office at any given time, who shall each hold office until resignation or successful impeachment, whichever is sooner;

(c) subject to any duly ratified Act of the Representative Assembly, and the exercise of any authority delegated thereby, and subject to any contrary proclamation of the Guildmeister, to commission and, once commissioned, maintain and administer as many court-houses as the chair shall deem appropriate, for the purposes of holding trials and other judicial hearings, and any other purposes as the chair shall deem appropriate, provided always that neither the Representative Assembly or the Guild individually or between shall prohibit the commissioning, construction, maintenance and continued existence and use of at least one court-house;

(d) to expend any monies held by the Judiciary Commission for any purposes connected with the discharge of any of the functions of the Judiciary Commission;

(e) subject to Section 5 below, to employ, for valuable remuneration or otherwise, such deputies and officers, and to delegate to them such functions, as the chair shall deem appropriate;

(f) to provide, or arrange to have provided, advice to citizens who may submit bills to the Representative Assembly, or any official, or delegate of that official, charged with drafting or approving regulations under powers delegated to her or him by the Constitution or any duly ratified Act of the Representative Assembly, concerning the drafting of such legislation or regulations, provided always that the Judiciary Commission shall not provide advice as to the desirability of any policy objective of such legislation or regulations;

(g) to publicise, both within the Confederation of Democratic Simulators, and elsewhere, the judicial system of the Confederation of Democratic Simulators, or publicise the Confederation of Democratic Simulators (or any geographic subset thereof) by publicising its judicial system;

(h) to provide, and oversee the provision by others of, education concerning the law and legal system of the Confederation of Democratic Simulators, and to issue, or regulate the issue of, qualifications in respect thereof;

(i) to provide advice to other governments and similar institutions in SecondLife and other such virtual worlds concerning the establishment and development of judicial systems therein;

(j) to maintain and publicise a record of all judicial proceedings, precedents and other public official judicial documents, not being documents relating to judicial proceedings in the Scientific Council; and

(k) to bring impeachment proceedings against any Judge of Common Jurisdiction, on the grounds only of either or both of (i) gross dereliction of duty, whether culpable or not, but, if not culpable, sustained for at least 28 days; or (ii) bias, corruption or insanity.

3. Even when not sitting as a Judge of Common Jurisdiction in an individual case or cases, the Chief Judge of Common Jurisdiction shall have the power: –

(a) to determine who other than her or himself shall be appointed to be a Judge of Common Jurisdiction;

(b) to determine which Judges of Common Jurisdiction shall hear which cases, or parts thereof;

(c) to issue general directions concerning procedure in Courts of Common Jurisdiction, which shall, subject to any contrary provision in the Constitution or any duly ratified Act of the Representative Assembly, have the force of law;

(d) to determine which Courts of Common Jurisdiction shall be superior, and which inferior; and

(e) to bring impeachment proceedings against the Chair of the Judiciary Commission or any other Judge of Common Jurisdiction, on the grounds only, of either or both of (i) gross dereliction of duty, whether culpable or not, but, if not culpable, sustained for at least 28 days; or (ii) bias, corruption or insanity, or additionally, in the case of the Chair of the Judiciary Commission, either or both of (i) gross incompetence; or (ii) gross fiscal imprudence.

4. Nothing in this Constitution shall prevent a single person holding office both as the Chair of the Judiciary Commission and the Chief Judge of Common Jurisdiction simultaneously or in succession, but, if a single person simultaneously holds office as any Judge of Common Jurisdiction and the Chair of the Judiciary Commission, any impeachment of that person that succeeds only on grounds applicable only to the Chair of the Judiciary Commission shall not have effect in removing that person from the office of Judge of Common Jurisdiction, whether Chief Judge or otherwise, or disqualifying that person from holding office as any Judge of Common Jurisdiction.

5. Only Judges of Common Jurisdiction shall preside over proceedings in any trial or other hearing, or deliver any judgment as to the law in any Court of Common Jurisdiction, or otherwise exercise any of the powers of any Court of Common Jurisdiction, save for those powers exercisable by juries, and any power, not exercised during the course of a trial or other hearing, deemed by any Judge of Common Jurisdiction to be administrative in nature, providing always that any party to such proceedings may appeal to a Judge of Common Jurisdiction from any such administrative decision.

6. Only Judges of Common Jurisdiction or juries empanelled in accordance with law shall deliver any judgment or verdict as to any question of fact in any trial or hearing in any Court of Common Jurisdiction.

7. Subject to any powers of the Scientific Council when sitting as a court expressly stated in the text of this Constitution, Courts of Common Jurisdiction, and only Courts of Common Jurisdiction, shall have the power when giving judgment on a disputed matter between two or more parties (who must be residents of SecondLife or bodies corporate, including states, recognised as such by the law of the Confederation of Democratic Simulators, but who need not be citizens of the Confederation of Democratic Simulators): –

(a) to make binding determinations of the rights, duties, powers, privileges, immunities, liabilities and disabilities of any or all such parties according to the law of the Confederation of Democratic Simulators;

(b) to make binding determinations of any facts in dispute between any or all such parties, provided that making such determinations are necessary in order to make such a determination as mentioned in paragraph (a) above, or (c) below;

(c) subject to either (i) a party formally accepting, or (ii) a court finding as a fact at a trial held in accordance with law that a party's conduct is culpable, to impose upon that party in respect of that conduct any penalty, including, but not limited to, banishment from any or all territory of the Confederation of Democratic Simulators, either permanently or for such shorter period as shall be specified by the court, and forfeiture of any SecondLife asset (including debts and other
such duties owed thereto), either immediately or suspended on such conditions as the court may prescribe;

(d) to make any non-penal orders such as to give effect to the rights, duties, powers, privileges, immunities, liabilities and disabilities of any party according to the law of the Confederation of Democratic Simulators, including any law relating to judicial procedure, or any other person or body on behalf of whom any party makes any claim, or to give effect to any penalty imposed by any Court of Common Jurisdiction in accordance with paragraph (c) above; and

(e) to order that any person be removed from the court-house at which any trial or any other hearing is being held, or, if he or she refuses so to be removed, banished from the Confederation of Democratic Simulators for the duration of that trial or other hearing (and for up to one hour thereafter) on the ground that that person is disrupting court proceedings, improperly interfering with the administration of justice, or attempting to do so.

8. All trials and other hearings in any Court of Common Jurisdiction shall be held in public, and, subject to section 7(e) above, any person (whether or not a citizen of the Confederation of Democratic Simulators) shall be entitled to observe the entirety of such proceedings, a full transcript of which shall be made available to the public at large in perpetuity and without charge.

9. When making any binding determination of the rights, duties, powers, privileges, immunities, liabilities and disabilities according to the law of the Confederation of Democratic Simulators of any parties in any proceedings in any Court of Common Jurisdiction, Judges of Common Jurisdiction shall be bound by the following sources of law, each item in the following list
taking precedence over each subsequent item: –

(a) the Constitution;

(b) any duly ratified Act of the Representative Assembly;

(c) any regulations made under any powers delegated, whether directly or indirectly, by any duly ratified Act of the Representative Assembly;

(d) any judgment of the Scientific Council sitting as a court (or of the Scientific Council in any capacity before the passing of the [b:344tk55v]Judiciary Act[/b:344tk55v]) that establishes a precedent;

(e) any judgment of any superior Court of Common Jurisdiction that establishes a precedent; and

(f) any judgment of any Court of Common Jurisdiction of equal superiority that establishes a precedent,

and where a judgment of the Scientific Council sitting as a court, or any Court of Common Jurisdiction, establishes a precedent as to whether any regulations of the sort mentioned in paragraph (c) above are made in accordance with, or conflict with, any duly ratified Act of the Representative Assembly, that shall take precedence over any contrary regulations.

10. A judgment establishes a precedent where, in order to determine the outcome of the proceedings in respect of which the judgment, or any part thereof, was given the judge or judges who determined such an outcome (and, if, where more than one judge so determines, they disagree, a simple majority of them) reach any conclusion or conclusions regarding the law of the Confederation of Democratic Simulators, that conclusion, and the reasoning used in reaching that conclusion, being the precedent set thereby.

11. A Judge of Common Jurisdiction, when delivering any judgment in any proceedings, or part thereof, in any Court of Common Jurisdiction, shall be bound to conclude that any duly ratified Act of the Representative Assembly is constitutional and has binding effect.

12. Nothing in this Constitution shall preclude any procedure whereby a party to proceedings in any inferior Court of Common Jurisdiction may appeal the outcome of such proceedings to any superior Court of Common Jurisdiction, which may allow or dismiss such an appeal in whole or in part.

13. Any Resident of SecondLife, or any body corporate (including any state) recognised by the law of the Confederation of Democratic Simulators, whether or not a citizen of the Confederation of Democratic Simulators, shall be entitled to commence proceedings to resolve any dispute capable of being resolved in accordance with the law of the Confederation of Democratic Simulators, in a Court of Common Jurisdiction.

14. Subject to any provision in this Constitution, and any duly ratified Act of the Representative Assembly, Courts of Common Jurisdiction shall have inherent jurisdiction to govern their own proceedings.

15. The Court of Common Jurisdiction shall not have the power to hold any impeachment hearing, or to order that any public official who holds office in the Confederation of Democratic Simulators (whether a Judge of Common Jurisdiction, a member of the Representative Assembly, a member of the Scientific Council, a member of the Artisanal Collective, or other such body, or otherwise) cease to hold or be disqualified from holding such public office, or be suspended therefrom, whether with or without pay.

***

2. The following sections of the Constitution shall be repealed: –

(a) Article III, Section 6, apart from the first sentence thereof ([i:344tk55v]Scientific Council - Hearings, Trials and Ratifications[/i:344tk55v]);

(b) Article III, Section 7 ([i:344tk55v]Scientific Council - Alternative Dispute Resolution[/i:344tk55v]), the whole section;

(c) Article III, Section 8 before the beginning of the sentence that starts, "In regard to ([i:344tk55v]sic[/i:344tk55v]) the Representative Branch" ([i:344tk55v]Powers of the Scientific Council[/i:344tk55v]),

and the title of Article III, Section 6 shall be changed to "Ratification of bills passed by the Representative Assembly".

3. The following part of the NL4-14 Registration and Incorporation Act shall be repealed: Article 2, Section 3 ([i:344tk55v]commercial court: constitution[/i:344tk55v]): the whole section, and any references in any part of that Act to the "Commercial Court" shall be taken as references to the Court of Common Jurisdiction, and any reference therein to any procedure before the Commercial Court shall be subject to any general directions issued by the Chief Judge of Common Jurisdiction under Article VII, Section 3 (c) of the Constitution.

4. The following shall be added to the Constitution immediately at the end of Article II, Section 4 ([i:344tk55v]Powers of the Artisanal Collective[/i:344tk55v]): –

***

With respect to the judiciary:

1. The Artisanal Collective may bring impeachment proceedings against the Chair of the Judiciary Commission on the ground of gross fiscal imprudence.

***

5. The Judiciary Commission shall have the power to serve upon any citizen of the Confederation of Democratic Simulators notice that that person is required to serve on a jury in a Court of Common Jurisdiction; any such person upon whom such notice has been served shall attend at the date and time set out in the notice, unless excused from so doing by a Judge of Common Jurisdiction after notice was served but before the date and time specified therein, and shall, unless excused from so doing by a Judge of Common Jurisdiction, duly serve as a juror, and act in accordance with all lawful directions of the Court.

[b:344tk55v]Chapter II - the Scientific Council[/b:344tk55v]

6. The following shall be inserted in the Constitution between Article III, Section 6 and Article III, Section 8:

***

[b:344tk55v]Section 7 - The Court of Scientific Council[/b:344tk55v]

1. The Scientific Council shall sit as a court when it exercises, or is considering whether to exercise, its power: –

(a) to impeach any person; or

(b) to allow any appeal from any Court of Common Jurisdiction.

2. When the Scientific Council sits as a court, it shall be known as "The Court of Scientific Council".

3. When sitting as a court, the Scientific Council shall be presided over by an odd number of judges greater in number than one, each of whom shall be members of the Scientific Council, not also being Judges of Common Jurisdiction or the Chair of the Judiciary Commission.

4. The Dean of the Scientific Council shall determine which members of the Scientific Council sit as judges in any trial or other hearing before the Court of Scientific Council.

5. Where not all Judges of the Court of Scientific Council agree on a judgment in any proceedings before it, the judgment of the Court shall be that agreed upon by a simple majority of those judges presiding over those proceedings.

6. The Scientific Council, when sitting as a court, shall be bound to conclude that any duly ratified Act of the Representative Assembly is constitutional and has binding effect.

7. All trials and other hearings before the Scientific Council when sitting as a court shall be held in public, and, subject to section 8 below, any person (whether or not a citizen of the Confederation of Democratic Simulators) shall be entitled to observe the entirety of such proceedings.

8. The Court of Scientific Council shall have the same powers as Courts of Common Jurisdiction as is conferred by Article VII, section 7(e) of this Constitution ([i:344tk55v]persons misbehaving in court[/i:344tk55v]).

9. The Court of Scientific Council shall sit without a jury.

10. The Court of Scientific Council shall have the power to make such orders as is necessary for the exercise of the powers conferred upon it by this Constitution or any duly ratified Act of the Representative Assembly.

11. Subject to any provision in this Constitution, and any duly ratified Act of the Representative Assembly, the Court of Scientific Council shall have inherent jurisdiction to govern its own proceedings.

12. The Dean of the Scientific Council shall have the power to issue general directions concerning procedure in Scientific Council, when sitting as a court and otherwise, which shall, subject to any contrary provision in the Constitution or any duly ratified Act of the Representative Assembly, have the force of law.

***

7. The following shall be added to the Constitution immediately at the end of Article III, Section 8 ([i:344tk55v]Powers of the Scientific Council[/i:344tk55v]): –

***

[i:344tk55v]With respect to the judiciary[/i:344tk55v]:

1. The Scientific Council, when sitting as a court, may hear and determine an appeal from any superior Court of Common Jurisdiction (or any inferior Court of Common Jurisdiction if no superior Court of Common Jurisdiction will entertain an appeal on the matter), and either uphold or overturn the decision (or any part thereof) from which the appeal is made, but only on the grounds both that the Court of Common Jurisdiction from which the appeal is sought: –

(a) acted in the proceedings out of which the appeal arises outside its jurisdiction as conferred by the text of this Constitution; and

(b) that, by so doing, whether wholly or in part, incorrectly determined any issue in dispute between any parties to those proceedings (including any question of law necessary to resolve such a dispute).

2. Without prejudice to the specificity of the foregoing, the Scientific Council when sitting as a court shall not in any circumstances have the power to determine any appeal from any Court of Common Jurisdiction only on any or all of the following grounds: –

(a) that the Court of Common Jurisdiction reached the wrong conclusion on any question of fact;

(b) that the Court of Common Jurisdiction wrongly interpreted or applied the common law of the Confederation of Democratic Simulators (except the common law with respect to the jurisdiction of the Courts of Common Jurisdiction);

(c) that the Court of Common Jurisdiction wrongly interpreted or applied any duly ratified Act of the Representative Assembly (except where the Court of Common Jurisdiction expressly purports to disapply any Act of the Representative Assembly); or

(d) that the Court of Common Jurisdiction wrongly interpreted, applied, or disapplied any regulation (or similar) made by any person or body deriving its power to do so from the Representative Assembly, or any person or body who, in turn, derives her, his or its power to do so from the Representative Assembly,

nor shall any of those grounds have any bearing on the outcome of any appeal from any Court of Common Jurisdiction to the Court of Scientific Council.

[i:344tk55v]Impeachment proceedings[/i:344tk55v]

1. Impeachment is an order that a holder of public office cease to hold such public office, or is suspended from such office for any time with or without pay, and/or is disqualified either permanently or for a term certain from holding any or all public office or offices.

2. A person may only be impeached by the Scientific Council, sitting as a court, following a trial in accordance with law.

3. Only persons (or persons acting on behalf of bodies) specified in the text of the Constitution shall have the power to commence impeachment proceedings.

4. Nothing in this Constitution shall prevent a Court of Common Jurisdiction from banishing any person, even where that person is a holder of public office in the Confederation of Democratic Simulators, and banishment would preclude that person from continuing to hold such public office.

5. When a member of the Scientific Council brings impeachment proceedings, that person shall not sit as a judge of the Court of Scientific Council hearing those proceedings at any stage thereof.

***

8. The following sections of the constitution shall be repealed: –

(a) Article I, Section 7 ([i:344tk55v]Powers of the Representative Assembly[/i:344tk55v]), the following text: (i) "The leader of the RA sits as the leader of the Artisanal branch if the Artisanal branch seeks to impeach a member of the Philosophic branch," and (ii) "The leader of the RA sits as the leader of the Philosophic branch if the Philosophic branch seeks to impeach a member of the
Artisanal branch"; and

(b) Article II, Section 4 ([i:344tk55v]Powers of the Artisanal Collective[/i:344tk55v]), the following text: (i) "The leader of the AC sits as the leader of the Representative branch if the Representative branch seeks to impeach a member of the Philosophic branch," and (ii) "The leader of the AC sits as the leader of the Philosophic branch if the Philosophic branch seeks to impeach a member of the Representative branch".

[b:344tk55v]Chapter III - Name and citizenship[/b:344tk55v]

9. The title of the Neufreistadt Constitution shall hereafter be, "The Constitution of the Confederation of Democratic Simulators".

10. Any reference in any Act of the Representative Assembly passed before the date on which this Act comes into force to "Neufreistadt" or to “Neualtenburgâ€

Ashcroft Burnham

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Post by Justice Soothsayer »

Ashcroft, thanks for the very valuable contributions in moving us forward on the development of our legal system. I am very impressed with the work, and support most of it. I do have a few reservations.

First, it is not entirely clear whether you intend to replace the current constitutional provision (Art. III, Sec. 7) regarding alternative dispute resolution with your new section 7, or simply add on to the existing language. I believe it is very important to offer alternative dispute resolution (such as arbitration or mediation) as these services could provide important benefits to the SL community. Indeed, I think there may be more of a "market" for mediation services than for our court system, no matter how litigation happy folks are in RL.

Second, I am concerned about the apparent lifetime (or is it Second Lifetime?) appointments of the judiciary, who can only be removed by resignation or impeachment, and impeachment appears to be limited to fairly serious offences. It is important to have a judiciary independent of the political process, but it is also important for the judiciary to be responsive to the needs of the community. Perhaps we should consider appointment of judges (and the chief judge) for a term, either consistent with or staggered with the term of the RA, would be appropriate. I am also concerned that your draft provides rather significant powers to the Chief Judge, also a lifetime appointment.

I am glad that you took the trouble to establish provisions regarding CDS “citizenshipâ€

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Post by Ashcroft Burnham »

[quote="Justice Soothsayer":2a9qtlus]Ashcroft, thanks for the very valuable contributions in moving us forward on the development of our legal system. I am very impressed with the work, and support most of it. I do have a few reservations.[/quote:2a9qtlus]

Thank you - your feedback is most welcome :-)

[quote:2a9qtlus]First, it is not entirely clear whether you intend to replace the current constitutional provision (Art. III, Sec. 7) regarding alternative dispute resolution with your new section 7, or simply add on to the existing language. I believe it is very important to offer alternative dispute resolution (such as arbitration or mediation) as these services could provide important benefits to the SL community. Indeed, I think there may be more of a "market" for mediation services than for our court system, no matter how litigation happy folks are in RL.[/quote:2a9qtlus]

Two points with respect to ADR. Firstly, there is no reason to have ADR in the [i:2a9qtlus]constitution[/i:2a9qtlus], as such: the purpose of the constitution is to outline the formal legal framework in which we operate. ADR, being informal, need not be part of the basic constitutional provision. It is probably best left to a combination of individual enterprise, and, where appropriate, rules of procedure. (Section 7 of the constitution is replaced entirely with the new part: as the Bill says, the existing Secition 7 is repealed, and a new Section 7 is added).

Secondly, as I stated in my original post, since we need to develop a common law by judicial precedent, it is probably wise not to dissuade too many people from using our courts to start with, at least. Rules of procedure could be amended later (far more easily than the Constitution can be amended) to provide extra encouragement for ADR if circumstances make it expedient to do so.

[quote:2a9qtlus]Second, I am concerned about the apparent lifetime (or is it Second Lifetime?) appointments of the judiciary, who can only be removed by resignation or impeachment, and impeachment appears to be limited to fairly serious offences. It is important to have a judiciary independent of the political process, but it is also important for the judiciary to be responsive to the needs of the community. Perhaps we should consider appointment of judges (and the chief judge) for a term, either consistent with or staggered with the term of the RA, would be appropriate. [/quote:2a9qtlus]

The requirement that judges have security of tenure is familliar to real-world legal systems, such as that with which I am most familliar, the English legal system, which has done very well with it over the last three quarters of a milennium or so. Indeed, in our system, unlike in at least the English system, a judge can be removed from office after an impeachment hearing for "[i:2a9qtlus]gross dereliction of duty... bias, corruption or insanity[/i:2a9qtlus]".

The reason for security of tenure is that it is vital that judges are completely impartial and independent, and make their judgments based on, and only on, their genuine view of what the law and correct outcome of a case is, and do not take into account in any way what other people might think of that decision: the work of a judge is, after all, inherently individual, rather than collective, in nature.

Nobody must have the power, however subtle, to influence an individual judge's decision on the outcome of any case: indeed, even if a person did not intend to influence a judge, under the system that you propose, anybody who had the power to re-appoint judges (or to influence those who re-appoint judges, or influence those who influence those who re-appoint judges, etc.) could do so by expressing (whether directly or indirectly) any sort of opinion on any issue that a judge has to decide, now or in the future. Similarly, even though a judge might not be consciously influenced thereby, the desire to be reappointed might unconsciously pressure the judge to make the popular, rather than the right, decision in a case. That would be disasterous for the interests of justice.

Against what danger would a system of regular re-appointments guard that is not adequately guarded agianst by the power to impeach judges for "[i:2a9qtlus]gross dereliction of duty... bias, corruption or insanity[/i:2a9qtlus]"?

[i:2a9qtlus]Edit[/i:2a9qtlus]: the way in which law is made "responsive to the community" is by legislating, not by influencing judges' decisions by threatening them (whether expressly or impliedly) with not being re-appointed if they do not do whatever is popular at the time.

[quote:2a9qtlus]I am also concerned that your draft provides rather significant powers to the Chief Judge, also a lifetime appointment.[/quote:2a9qtlus]

Is your concern only at the security of tenure, or at the specific ambit of the Chief Judge's power, and, if the latter, what part thereof?

[quote]I am glad that you took the trouble to establish provisions regarding CDS “citizenshipâ€

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Post by Justice Soothsayer »

[quote="Ashcroft Burnham":2wr5xu6f]Firstly, there is no reason to have ADR in the [i:2wr5xu6f]constitution[/i:2wr5xu6f], as such: the purpose of the constitution is to outline the formal legal framework in which we operate. ADR, being informal, need not be part of the basic constitutional provision. It is probably best left to a combination of individual enterprise, and, where appropriate, rules of procedure. (Section 7 of the constitution is replaced entirely with the new part: as the Bill says, the existing Secition 7 is repealed, and a new Section 7 is added).[/quote:2wr5xu6f]

Our constitution is our foundation; I think a constitutional commitment to alternative dispute resolution as preferred over litigation (see [url=http://en.wikipedia.org/wiki/Jarndyce_v ... e:2wr5xu6f]Jarndyce v Jarndyce[/url:2wr5xu6f]) is worthy of enshrinement in the constitution.

[quote="Ashcroft Burnham":2wr5xu6f]The requirement that judges have security of tenure is familliar to real-world legal systems, such as that with which I am most familliar, the English legal system...[/quote:2wr5xu6f]

Appointment of judges is also familiar to RL legal systems (see [url=http://en.wikipedia.org/wiki/Missouri_Plan:2wr5xu6f]Missouri Plan[/url:2wr5xu6f], and [url=http://en.wikipedia.org/wiki/Judicial_i ... e:2wr5xu6f]Judicial Independence[/url:2wr5xu6f]), as is the [url=http://www.fed-soc.org/Publications/Whi ... m:2wr5xu6f]election of judges[/url:2wr5xu6f] by popular vote. I'm more inclined to popular election as more consistent with our democratic values.

[quote="Ashcroft Burnham":2wr5xu6f]I am not sure how a rogue judge would have the power to banish random RA members who failed to vote for fireworks under the system that I propose, since a case would need to have a prosecutor, as well as a judge, to be brought. [/quote:2wr5xu6f]

It seems that the rogue judge would need only a rogue alt...

Just to be clear, I'm agreeing in principle with much that Ashcroft has proposed, but the devil is in the details, and I disagree with a few of those details. Overall, kudos to Ashcroft for a good job.

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Post by Ashcroft Burnham »

[quote="Justice Soothsayer":18texslk]Our constitution is our foundation; I think a constitutional commitment to alternative dispute resolution as preferred over litigation (see [url=http://en.wikipedia.org/wiki/Jarndyce_v ... e:18texslk]Jarndyce v Jarndyce[/url:18texslk]) is worthy of enshrinement in the constitution.[/quote:18texslk]

The "monument of Chancery litigation" that Dickens was (somewhat exaggeratedly) lampooning in [i:18texslk]Bleak House[/i:18texslk] was a result of bad case management rather than the lack of alternative dispute resolution. (It was not entirely clear, for example, why the case needed to be adjourned so many times, or why costs were paid both from the litigants directly [i:18texslk]and[/i:18texslk] out of the estate: the issue was, after all, a comparatively simple one: which of the several wills was the latest?)

Indeed, alternative dispute resolution is not the kind of thing that is capable of preventing there from being very long and complicated cases: it does not make those cases that are litigated any shorter or less complicated, it merely reduces the total number of cases litigated. Those that are still litigated tend to be those where the dispute is too intractable to be resolved by mutual agreement - i.e., precisely the kind of case that is destined to become long and protracted in the first place.

In any event, this does not tell us (1) exactly what effect that enshrining alternative dispute resolution in the constitution would have on parties to a dispute, and (2) why it is that you reject my argument about the need, at least in the formative days of our legal system, to accumulate judicial precedents. After all, a fully functioning judicial system of this sort is unique in SecondLife: in our world, litigation [i:18texslk]is[/i:18texslk] the alternative way of resolving disputes.

Indeed, a requiremnt that parties subject themselves to alternative dispute resolution could make cases longer, rather than shorter, since parties would have to go through additional steps (which may well not work) before reaching a final resolution of their case. The main reasons in real life that alternative dispute resolution is preferred over litigation is that litigation is (1) costly and (2) slow. There is no reason why our small judicial system should be either of those two things for a very long time, if at all. The only other reason that people turn to alternative dispute resolution is because people can agree things in negotiated settlements that courts do not have the power to order. There is no reason, even without some unspecified sort of constitutional "enshrinement", that parties who are willing to negotiate could not do so. [i:18texslk]Forcing[/i:18texslk] parties to submit to alternative dispute resolution can never work, since only people who are (genuinly) willing to do it in the first place will ever get anything out of it, and those are precicely the people who do not need to be forced, but who will do it on thier own.

Finally, there is the issue of resources: to have just a judicial system without any formal provision for ADR, we need one Chair of the Judiciary Commission/Chief Judge, and one Cheif Clerk to the Judiciary: two people in total for the Courts of Common Jurisdiction, the latter of whom could be part-time and also hold another administrative job. Alternative dispute resolution would also require separate arbitrators and mediators (a judge who might eventually sit on the case could certainly not do it) - do you have any idea where you might find these people? What exact effect on the actual process of litigation are you seeking to acheive by having a [i:18texslk]constitutional[/i:18texslk] provision for alternative dispute resolution?

It seems to me that you are trying to solve a problem that does not yet - and may never - exist, and in so doing creating far greater potential problems. If, after some months' experience with our court system, we find that alternative dispute resolution is needed, then we can assess what, exactly, is needed, and make provisions at that stage.

[quote="Justice Soothsayer":18texslk]Appointment of judges is also familiar to RL legal systems (see [url=http://en.wikipedia.org/wiki/Missouri_Plan:18texslk]Missouri Plan[/url:18texslk], and [url=http://en.wikipedia.org/wiki/Judicial_i ... e:18texslk]Judicial Independence[/url:18texslk]), as is the [url=http://www.fed-soc.org/Publications/Whi ... m:18texslk]election of judges[/url:18texslk] by popular vote. I'm more inclined to popular election as more consistent with our democratic values.[/quote:18texslk]

What exactly do you think that the purpose of democracy is such that electing [i:18texslk]judges[/i:18texslk] is a good idea? Indeed, were you not one of the people who recently argued that it would be against Neufreistadt's culture of a contest of ideas, rather than a contest of people, to have a directly elected [i:18texslk]executive[/i:18texslk] (the Burgermeister of Neufreistadt)? What is the difference here?

As I explained at some length in my previous post, having judges who do not have security of tenure is very dangerous as far as the administration of justice is concerned, especially in a small community where most people know each other. I have already in that post set out at some length the arguments why the lack of security of tenure is likely to damage vital judicial independence, and I am somewhat concerned that you have not given any reasons as to why you reject those specific arguments.

Perhaps an example will make the point even clearer: suppose that, for one reason or another, a particular citizen of Neufreistadt had become most unpopular with a majority of its population for doing things that, whilst highly controversial, were not unlawful. Then suppose that that person was accused of some serious culpable misconduct which he or she denied. Who would give the person a fairer trial: a judge who knows that, whatever the outcome of the case, her or his position is assured, or one who knows that re-election time is just around the corner?

Judges are appointed for their ability to be just in individual cases, and their skill at interpreting and applying the law, not for their responsiveness to popular trends. The way of upholding true democratic values in the judicial system is not by having elected judges, but by having an elected legislature whose legislation judges are bound to follow.

The Scientific Council is a "self-selected meritocracy", and you are not suggesting changing that; what is different, do you say, about Judges of the Common Jurisdiction?

I ask again: against what specific danger would a system of regular re-appointments (or elections) guard that is not adequately guarded agianst by the power to impeach judges for "[i:18texslk]gross dereliction of duty... bias, corruption or insanity[/i:18texslk]", and the ability to pass legislation that is binding on the judiciary?

[i:18texslk]Edit[/i:18texslk]: I quote from your own Wikipedia citation on judicial independence, under the "United States" subheading:

[quote="Wikipedia":18texslk]Another prong of judicial independence is proper judicial selection. The American Bar Association, which advocates executive appointments of judges who have been cleared by screening committees (so-called "merit selection"), is at odds with many state legislatures which prefer election by the general public. The American Bar Association, and state bar associations generally, view judicial elections as rewarding political skills rather than legal skills.[/quote:18texslk]

I fully endorse the American Bar Association's view on the matter, especially that stated in the last sentence.

[quote:18texslk]It seems that the rogue judge would need only a rogue alt...[/quote:18texslk]

It is unclear what solution that you propose to this, though: that would apply equally to people who are not holders of public office, would it not (and, in your elected judges example, could enable, for example, rogue judges to create rogue alts and then banish anybody who campaigned for that judge's removal, or criticised her or him publicly).

The (theoretical) problem that you raise is one that applies to having a judiciary at all (or, indeed, having anybody with the power to banish anybody at all), and not a problem that applies specifically to the principle that those in public office should, when accused of culpable misconduct, be treated in exactly the same way as those not in public office. Is equality before the law not an important incident of our community values?

[quote:18texslk]Just to be clear, I'm agreeing in principle with much that Ashcroft has proposed, but the devil is in the details, and I disagree with a few of those details. Overall, kudos to Ashcroft for a good job.[/quote:18texslk]

I am glad that you like most of the proposals, but, as you note, the details are most important.

Last edited by Ashcroft Burnham on Sun Aug 27, 2006 5:40 am, edited 1 time in total.
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Addendum: the Federalist Soceity's article

Post by Ashcroft Burnham »

In my previous post, and discussion on the evils of judicial election, I did not directly address the link to the Federalist Soceity's page about [url=http://www.fed-soc.org/Publications/Whi ... m:3fhxva4v]arguments in favour of partisan judicial elections[/url:3fhxva4v]. I do so here.

The Federalist Soceity's article compares, broadly, four different models of judicial appointments: (1) direct appointment by the state governer (the executive); (2) a mixed election/appointment system called the [url=http://en.wikipedia.org/wiki/Missouri_Plan:3fhxva4v]Missouri Plan[/url:3fhxva4v]; (3) non-partisan judicial elections (where "partisan" denotes party political); and (4) partisan judicial elections.

It arrives at the conclusion that the partisan election process is better by the following line of reasoning: (1) empirical evidence shows that the Missouri plan system of appointments influences judges to create inefficient laws that favour plaintiffs' interests, and the financial interests of the legel profession; (2) that empirical evidence shows that it does so more than in states where there is a directly elected judiciary; (3) it is easier for voters to understand what they are voting for when voters can pick by party alone; so (4) partisan elections are better than the Missouri plan; and (5) appointments by the executive does not "[i:3fhxva4v]bring the issue of judicial selection sufficiently into the political arena[/i:3fhxva4v]", therefore (6) a system of partisan judicial election must be the best possible system.

That argument is flawed in two critical respects: firstly, proposition no. 5 is a non-sequitor: just because the Missouri plan (which, the article concluded, failed to make judicial appointments apolitical, but, "[i:3fhxva4v]...far from taking judicial selection out of politics, the Missouri Plan actually tended to replace politics, wherein the judge faces popular election (or selection by a popularly elected official), with a somewhat subterranean process of bar and bench politics, in which there is little popular control[/i:3fhxva4v]") does not mean that it is desirable to have the "issue of judicial selection... in the political arena". Thus, in respect of the Missouri Plan, the authors argue that the system [i:3fhxva4v]cannot[/i:3fhxva4v] prevent political involvement of one sort or another, and, in respect of direct appointment by the state governer, they argue that there is [i:3fhxva4v]insufficient[/i:3fhxva4v] political involvement. The argument, therefore, in favour of the desirability of political involvement per se has never been made: only the lesser argument that the sort of political involvement involved in a direct election process is better than that involved in the particular sort of nomination committees envisaged in the Missouri Plan.

Secondly, it assumes that the two non-elective alternatives given (appointment by state governer, or nomination and re-election by the Missouri Plan) are the only two possible alternatives. That is not true: the system that I propose (appointment of the Chair of the Judiciary Commission by a one-time vote in the Scieintific Council, appointment of the Chief Judge by the Chair of the Judiciary Commission, and appointment of further judges by the Chief Judge) is a quite different system to both, since it involves neither practising lawyers (as the Missouri Plan does, which, it seems, at least according to the article, is where its flaw lies, since the lawyers will vote for judges who decide cases in ways that make them more money), nor political figures (as the US version of the direct appointments model does).

The article makes much of its empirical research, but all that the empirical research really shows is that the Missouri Plan is simply insufficiently apolitical: those with the power to appoint judges are still people who have a personal interest in appointing judges who decide cases in particular ways. In England and Wales, judges are also appointed (by the means described by the Wikipedia article that you cited on judicial independence), and the absurdly plaintiff-friendly approach of US courts (whether in states that choose their judges by election or appointment) is markedly absent. Indeed, in a recent controversy about the so-called "litigation culture", the one thing that seems to have been agreed by both the government and the legal profession is that the problem is not the law or the judiciary itself, but the grossly over-rated perception by the public that the courts are too willing to hold parties liable in negligence, the disagreements being about what, if anything, to do about it.

In the system that operates in England and Wales, like the system that I propose, those who appoint judges (existing senior judges themselves) are precisely those who simultaneously know who is best qualified for the job, and have the least personal interest in the outcomes of cases.

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Post by Patroklus Murakami »

Thank you to Ashcroft for outlining, in response to my earlier post, how his proposed legal system would operate in a number of scenarios. That was helpful to me in envisaging how the system might work in practice. I think we should go for it and give this a trial run.

The following is a mixture of commentary on the issues that Justice and Ashcroft have aired, a couple of concerns of my own and a proposal for a three-month trial period, after which the RA would either approve the system as presented indefinitely or reject it in favour of developing some other approach.

[list:1jh8azg1][b:1jh8azg1]1. Election v appointment of Judges.[/b:1jh8azg1] Justice has suggested that popular election would sit better with our democratic values than appointment. I don't agree that this is the case. We are not choosing a government (where election is the best tool we have yet found) but a judiciary. We should select the best system for choosing Judges which ensures they have the necessary qualities. These are that they should be well-qualified and capable of exercising independant judgement. I think that Ashcroft has put forward some convincing reasons why election (and especially regular election) of Judges would not be the best direction to take. Election is not always the best method of choosing key people, even people with power within a democratic system. We didn't, for example, hold an election for Public Information Officer, we chose someone who had the necessary qualities.

On the related issue of security of tenure - there are compelling reasons for Judges to be appointed for life and then only removed when they are truly appalling. Any other system removes their independance and makes them subject to a popularity contest.

[b:1jh8azg1]2. Chat logs.[/b:1jh8azg1] I note that even the revised proposal contains a requirement to give consent to the use of any communications in evidence (whenever and wherever they've taken place) and that all citizens of Neufreistadt/CDS will have to agree to this. The point has been made earlier that forging chat logs (or other documents) is a fairly trivial exercise. In those circumstances the Court is going to have to rely on other sources of evidence to reach its conclusions. Given that this requirement is likely to be unpopular with both citizens of the CDS and other residents of Second Life and that it is ineffective, why is it necessary to retain it?

[b:1jh8azg1]3. Hierarchy of Sources of Law.[/b:1jh8azg1] This issue, which source of law takes precedence, has been raised before. The proposal is clear but the drawbacks are that it reverses the current practice and is silent on the status of Linden Law i.e. the Terms of Service within the hierarchy. The propose new Article VII, Section 9 of the Constitution puts sources of law in this order:

[list:1jh8azg1]"(a) the Constitution;

(b) any duly ratified Act of the Representative Assembly;

(c) any regulations made under any powers delegated, whether directly or indirectly, by any duly ratified Act of the Representative Assembly;

(d) any judgment of the Scientific Council sitting as a court (or of the Scientific Council in any capacity before the passing of the Judiciary Act) that establishes a precedent;

(e) any judgment of any superior Court of Common Jurisdiction that establishes a precedent; and

(f) any judgment of any Court of Common Jurisdiction of equal superiority that establishes a precedent"[/list:u:1jh8azg1]

By placing the Constitution above the Judgment of the Scientific Council it appears that this would remove the power of the SC to be the final arbiter of the interpretation of the Constitution and founding documents. Who will then exercise this function? It appears to me that this power then transfers to the Court of Common Jurisdiction which puts it above the SC in matters of constitutional interpretation. I don't believe this change is acceptable and the order of these clauses needs to be changed. Also, what is the status of the Linden Terms of Service under this proposal? I think we have to accept that Linden Law takes precedence over our laws since they 'own' our world and to imagine otherwise would mean living in a fool's paradise!

[b:1jh8azg1]4. Impeachment & Balance of Powers.[/b:1jh8azg1] Would I be right in thinking that this proposal removes the powers of the SC, RA and GM to seek impeachment of the other branches of government? If so the effect on the checks and balances of our governmental institutions needs further thought.

[b:1jh8azg1]5. Marshals of the Peace. [/b:1jh8azg1]This provision inhabits the same territory as the Defence of the Republic Act passed last term. Why is the new provision necessary and what happens to the previous Act?

[b:1jh8azg1]6. 'Sunset' Clause.[/b:1jh8azg1] In the interests of getting a working legal system up and functioning I suggest the inclusion of a three month 'sunset' clause in the bill. The provisions would automatically become defunct within three months of its passage unless the RA were to vote by a 2/3 majority to continue with it. This way we can experiment with the new system and see how it works in practice without making an irrevocable commitment at this stage. Now I'm sure that someone will accuse me of inconsistency here given that I've argued several points above for security of tenure. I accept the inconsistency. We're starting out on a new system and I think the proposal as outlined requires too much of a 'leap of faith'. A trial period would be a compromise that would allow us to get started while also offering a get out clause if things do not run as smoothly as we would wish or if we subsequently discover that we had not considered every eventuality before committing ourselves to this proposal.[/list:u:1jh8azg1]

I would be interested to hear people's views on any of these thoughts.

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Post by Ashcroft Burnham »

[quote="Patroklus Murakami":3ira94eg]Thank you to Ashcroft for outlining, in response to my earlier post, how his proposed legal system would operate in a number of scenarios. That was helpful to me in envisaging how the system might work in practice. I think we should go for it and give this a trial run.

The following is a mixture of commentary on the issues that Justice and Ashcroft have aired, a couple of concerns of my own and a proposal for a three-month trial period, after which the RA would either approve the system as presented indefinitely or reject it in favour of developing some other approach.[/quote:3ira94eg]

Thank you very much for your replies: the more feedback the better :-)

[quote:3ira94eg][list:3ira94eg][b:3ira94eg]1. Election v appointment of Judges.[/b:3ira94eg] Justice has suggested that popular election would sit better with our democratic values than appointment. I don't agree that this is the case. We are not choosing a government (where election is the best tool we have yet found) but a judiciary. We should select the best system for choosing Judges which ensures they have the necessary qualities. These are that they should be well-qualified and capable of exercising independant judgement. I think that Ashcroft has put forward some convincing reasons why election (and especially regular election) of Judges would not be the best direction to take. Election is not always the best method of choosing key people, even people with power within a democratic system. We didn't, for example, hold an election for Public Information Officer, we chose someone who had the necessary qualities.

On the related issue of security of tenure - there are compelling reasons for Judges to be appointed for life and then only removed when they are truly appalling. Any other system removes their independance and makes them subject to a popularity contest.[/quote:3ira94eg]

I am glad that you agree :-)

[quote:3ira94eg][b:3ira94eg]2. Chat logs.[/b:3ira94eg] I note that even the revised proposal contains a requirement to give consent to the use of any communications in evidence (whenever and wherever they've taken place) and that all citizens of Neufreistadt/CDS will have to agree to this. The point has been made earlier that forging chat logs (or other documents) is a fairly trivial exercise. In those circumstances the Court is going to have to rely on other sources of evidence to reach its conclusions. Given that this requirement is likely to be unpopular with both citizens of the CDS and other residents of Second Life and that it is ineffective, why is it necessary to retain it?[/quote:3ira94eg]

As I wrote before, whilst of course it is easy to forge chat logs, the point is that whether or not the logs are forged must be a matter for the court to decide.

Under the Linden Labs Terms of Service, it would not be possible for a person to give evidence about what was said to her or him by any person (whether in the form of direct speech or otherwise), which would make it almost impossible for a court to have evidence before it on potentially important aspects of disputed fact, such as, for example, the case is against a griefer, and the substance of the case is the unpleasant things that the griefer is supposed to have said, or that the case is about a contract that is not in writing (of course it is [i:3ira94eg]better[/i:3ira94eg] to have an agreement in writing, but it would be quite wrong for a court to refuse to hear evidence about anything else).

The change to the Terms of Service is necessary, as I explained before, to enable the court system to function effectively. The proposal does not mean that anybody's records would be taken as conclusive: it merely enables the court to take into account all relevant evidence and make its own decision. Do you really think that a court could make effective decisions if nobody could give evidence about anything that was said to her or him?

[quote:3ira94eg][b:3ira94eg]3. Hierarchy of Sources of Law.[/b:3ira94eg] This issue, which source of law takes precedence, has been raised before. The proposal is clear but the drawbacks are that it reverses the current practice and is silent on the status of Linden Law i.e. the Terms of Service within the hierarchy. The propose new Article VII, Section 9 of the Constitution puts sources of law in this order:

[list:3ira94eg]"(a) the Constitution;

(b) any duly ratified Act of the Representative Assembly;

(c) any regulations made under any powers delegated, whether directly or indirectly, by any duly ratified Act of the Representative Assembly;

(d) any judgment of the Scientific Council sitting as a court (or of the Scientific Council in any capacity before the passing of the Judiciary Act) that establishes a precedent;

(e) any judgment of any superior Court of Common Jurisdiction that establishes a precedent; and

(f) any judgment of any Court of Common Jurisdiction of equal superiority that establishes a precedent"[/list:u:3ira94eg]

By placing the Constitution above the Judgment of the Scientific Council it appears that this would remove the power of the SC to be the final arbiter of the interpretation of the Constitution and founding documents. Who will then exercise this function? It appears to me that this power then transfers to the Court of Common Jurisdiction which puts it above the SC in matters of constitutional interpretation. I don't believe this change is acceptable and the order of these clauses needs to be changed. Also, what is the status of the Linden Terms of Service under this proposal? I think we have to accept that Linden Law takes precedence over our laws since they 'own' our world and to imagine otherwise would mean living in a fool's paradise![/quote:3ira94eg]

Two separate issues are raised here: (1) the supremacy of the Court of Scientific Council's interpretation of the constitution, and (2) the relevance of the Linden Labs Terms of Service.

I shall deal with the second first, as it is the simplest of the two. I did not include the Linden Labs Terms of Service as a source of law because it is not up to our courts to enforce the Linden Labs Terms of Service, so, whilst we all have an obligation to abide by them, that is quite a different matter from treating them as a source of law in our courts. The idea is that our courts have jurisdiction only on our law, not the Linden Labs Terms of Service or any of the laws of the first life, since they have their own, independent, jurisdiction and enforcement mechanism. They run in parallell, just like, for example, a referee in a football match does not try to act as a judge of anything other than the rules of the football game - if anybody has committed an actual crime, he or she will call the police, and let the real courts deal with it.

As to the second, you raise a rather interesting and difficult point: what exactly is the boundary between the Courts of Common Jurisdiction and the Court of Scientific Council in interpreting the constitution? Certainly, the Court of Common Jurisdiction must have [i:3ira94eg]some[/i:3ira94eg] jurisdiction to interpret the constitution, since any court of first instance deciding cases must be able to do that. Indeed, given the jurisdiction for the Court of Scientific Council that I propose (impeachment hearings and special appeals only), the Courts of Common Jurisdiction must be the courts that do the day-to-day interpretation of the constition in most cases. However, the Court of Scientific Council also will have an appellate jurisdiction to hear appeals from Courts of Common Jurisdiction on the ground that it had [i:3ira94eg]"acted in the proceedings out of which the appeal arises outside its jurisdiction as conferred by the text of this Constitution"[/i:3ira94eg]. The point that you make, quite correctly, is that a decision by the Court of Scientific Council on just [i:3ira94eg]when[/i:3ira94eg] a Court of Common jurisdiction is and is not acting within its jurisdiction should create a precedent that the Court of Common Jurisdiction is bound to follow. Looking at the heirachy that I proposed, it could be said that, following that, a Court of Common Jurisdiction would have jurisdiction to substitute its own view on the interpretation of the constitution, which would not be in keeping with the powers of the Court of Scientific Council.

The problem is that one cannot just swap the order in the heirachy, because putting decisions of the Court of Scientific Council [i:3ira94eg]above[/i:3ira94eg] the constitution would mean that duly passed legislative changes to the constitution on an issue on which the Court of Scientific Council has issued a precedent-setting judgment might be ineffective, since the Courts of Common Jurisdiction would be bound to uphold the old Court of Scientific Council decision over the new text of the constitution.

The solution is perhaps a rider at the end of the heirachy stating that the Court of Scientific Conucil's judgment on the interpretation of the constitution, where a precedent is created thereby, is binding. I'll have to think about the form of words overnight and post again. Does that seem like a sensible suggestion to you, though, in principle?

[quote:3ira94eg][b:3ira94eg]4. Impeachment & Balance of Powers.[/b:3ira94eg] Would I be right in thinking that this proposal removes the powers of the SC, RA and GM to seek impeachment of the other branches of government? If so the effect on the checks and balances of our governmental institutions needs further thought.[/quote:3ira94eg]

That was not the intention, nor do I think that that is the effect of the text of the Bill: the idea was merely to remove the rather odd and anomalous requirement that the heads of some bodies "sit as" the heads of others when being impeached in certain circumstances; I never could fathom what the use of that could be, especially since it could cause serious problems (how is the head of one branch effectively to represent another during impeachment proceedings? What if two branches are minded to bring proceedings?).

[quote:3ira94eg][b:3ira94eg]5. Marshals of the Peace. [/b:3ira94eg]This provision inhabits the same territory as the Defence of the Republic Act passed last term. Why is the new provision necessary and what happens to the previous Act?[/quote:3ira94eg]

I must confess, I had missed the [b:3ira94eg]Defence of the Republic Act[/b:3ira94eg] when I drafted the [b:3ira94eg]Judiciary Bill[/b:3ira94eg], not realising that the issue had already been covered. However, I think that we do need a slightly new approach than set out in the [b:3ira94eg]Defence of the Republic Act[/b:3ira94eg], because the scheme set out in that [b:3ira94eg]Act[/b:3ira94eg] is less clear, and less subject to judicial oversight, than the system that I propose.

That [b:3ira94eg]Act[/b:3ira94eg] provides:

[quote="The Defence of the Republic Act":3ira94eg]Members of the Representative Assembly, the Scientific Council and the Guild Master (and citizens temporarily empowered by these bodies) are empowered to ban avatars from Neualtenburg if they are griefing or make a recorded threat to grief.

The Scientific Council are empowered to deny citizenship to a non-citizen if they have cause to believe that the non-citizen will not abide by the Constitution, founding documents and laws of the City. [/quote:3ira94eg]

There is no clear distinction between the summary banishment process that my system makes temporary and the final banishment that only a court can impose after a trial or by consent, nor is there the requirement, as there will be in the constitution, to serve a notice on the banished person stating the reasons for banishment and how to make representations to the Court of Common Jurisdiction, nor a requirement that a summary banishment be limited to 14 days, nor a right for a person banished to make representations to a Court (after all, the requirement of review after 28 days is somewhat pointless if the banished person cannot - either because he or she simply does not have the right to, or merely because he or she does not have the knowledge, or means of acquiring the knowledge, as to how to go about - making representations to the Court about why he or she should not be banished).

The scheme that I propose makes things far clearer, and incorporates a single, standardised scheme for summary banishment of all kinds. It also gives a name for the people who exercise the power, which makes things easier to understand. Finally, I deliberately chose the same set of people as are presently so empowered, although I omitted (largely because of not noticing the point) the power of the Guild and Scientific Council to appoint Marshals of the Peace. That could easily be added if it were thought necessary. However, for clarity, I should include a section that expressly repeals the [b:3ira94eg]Defence of the Republic Act[/b:3ira94eg]. Thank you for pointing that out :-)

(Incidentally, I see the Marshals of the Peace scheme that I propose as an evolutionary development of the current model under the [b:3ira94eg]Defence of the Republic Act[/b:3ira94eg], rather than starting from scratch :-)).

[quote:3ira94eg][b:3ira94eg]6. 'Sunset' Clause.[/b:3ira94eg] In the interests of getting a working legal system up and functioning I suggest the inclusion of a three month 'sunset' clause in the bill. The provisions would automatically become defunct within three months of its passage unless the RA were to vote by a 2/3 majority to continue with it. This way we can experiment with the new system and see how it works in practice without making an irrevocable commitment at this stage. Now I'm sure that someone will accuse me of inconsistency here given that I've argued several points above for security of tenure. I accept the inconsistency. We're starting out on a new system and I think the proposal as outlined requires too much of a 'leap of faith'. A trial period would be a compromise that would allow us to get started while also offering a get out clause if things do not run as smoothly as we would wish or if we subsequently discover that we had not considered every eventuality before committing ourselves to this proposal.[/list:u:3ira94eg][/quote:3ira94eg]

Whilst I accept that it is important to keep new developments under review, I am concerned at the way that you seek to do it by means of automatic expiry after a relatively short period of time. I am concerned for a number of reasons: firstly, three months seems like a fairly arbitrary length of time. Why is three, and not four or five or six, months the appropriate length of time to determine finally whether the system is working? A system such as this is designed to develop over time: the way in which it works near the beginning may well be quite different to the way in which it works once it has had time to bed in. After all, there might not even have been any cases after only three months!

Secondly, suppose that more than a third of the Representative Assembly after three months believes that there is some or other problem with the judicial system, but there is not a 2/3rds majority on any one solution - would the whole system not then collapse without replacement? As you propose it, the moment that those three months are up, if fewer than 2/3rds of the Representative Assembly agree that it shoud continue, the entire [b:3ira94eg]Judiciary Act[/b:3ira94eg] (as then it will be), complete with provisions as to citizenship, ToS changes and repeals, would evaporate, and would not be replaced unless and until 2/3rds of the Representative Assembly can agree on another, comprehensive system to replace it. I do not see the advantage of this: why should instability be the default, which can only be overturned with a 2/3rds majority? Why is it not better to have [i:3ira94eg]some[/i:3ira94eg] largely agreeable judicial system (i.e., that fewer than 2/3rds of the Representative Assembly think should be [i:3ira94eg]abolished[/i:3ira94eg]) until the requisite majority (simple unless the change requires constitutional amendment) agrees on how to change it, than to have a system that is at least tolerable disintegrate and not be replaced because people cannot agree as to what to replace it with?

The idea seems to be a recipie for uncertainty and instability. Would anyone, for example, be willing to design a court-house, or a detailed system for cataloguing and archiving precedent-setting judgments if they knew that the whole thing might crumble to nothing in three months? Indeed, if the system was evaluated for its success on its ability to garner those resources, the system might be rejected on the ground that it was "overambitious" when the real problem was that nobody was willing to commit resources to something where failure is the default!

Why is presumed termination preferable to the power that the legislature has at any time to pass a constitutional amendment (or a simple Act, if no amendment is required, as it would not be in many respects) to reform the judiciary, or make small changes to the judicial system? A judicial system, after all, works best in a stable environment - ought change not be gradual and evolutionary rather than by means of a presumed counter-revolution after the passage a relatively short space of time?

What does a sunset clause achieve that could not just as well be acheived by, for example, a [b:3ira94eg]Judiciary Review Panel[/b:3ira94eg] set up to produce, say, an interim report within three months, giving (1) an interim assessment of things that can readily be assessed within three months, (2) an outline of those things that take longer than three months to assess; and (3) how long it will take to assess those of them that are important to assess, and therefore, how long that it will take to produce a final report? The interim report could be put out to consultation, and interim changes (probably minor changes) recommended, which could be implemented in time for the final report to assess how well that they have progressed.

Then, the Judiciary Review Panel would work on a draft final report, which would be put out to consultation by users of the judicial system, branches of government, and the judiciary themselves, before a final report would be published by the panel, making recommendations as to what, if anything, to change. The Representative Assembly could then debate that, and decide what, if any, recommendations to implement.

That should provide a smooth, thorough review mechanism, that allows proper, considered evaluation against the background of a stable system, rather than a frantic rush to avert the time-bomb of your proposed sunset clause.

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Chat logs

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Let's try to unpack some of these issues one by one. I'll start with chat logs because I feel it is a major sticking point and we are not agreed on this yet.

I could not find a reference banning the use of chat logs in the Terms of Service but there is this section in the Community Standards (which users agree to read and abide by when they accept the ToS):

[quote:6j6ujsz7]"Remotely monitoring conversations, posting conversation logs, or sharing conversation logs without consent are all prohibited in Second Life and on the Second Life Forums."[/quote:6j6ujsz7]

Your proposal would circumvent this prohibition by requiring citizens to provide consent to the use of all past and future communications inworld and out of world including chat, IMs, external emails, recordings of voice chat, telephone conversations etc. The same rules would apply to any non-citizen who decided to pursue a case through the CDS courts.

I agree that the courts will need to be able to receive evidence in order to reach a decision but I don't accept that a) this means that we have to agree to having our privacy invaded in this way and b) that the method you suggest would improve the decision-reaching powers of the courts in any appreciable way.

Let me illustrate my point by way of a (fictitious) example: One day while at my store a customer asked me if the floor cushions I was selling came in any different colours, he wanted ones in grey to go with his home decor. I decided to retexture the one he wanted with another of my unique textures and sold it to him for the same price as the regular ones. I joked at the time that he was getting a custom job and even included that in the description of the item. A few weeks later I decided to refresh my product lines and included the grey texture along with a number of others. Said customer IMd me and said he was angry that I'd put on sale the item I produced specially for him. He said that he had only bought it because it was a 'custom' item as I had admitted by including it in the item description and that I had broken my agreement with him by putting it on general sale. He decides to sue me through the CDS courts to get me to withdraw the items for sale and produces the following chat log as evidence:

[quote:6j6ujsz7]Customer: Does this come in any colors? I wanted gray.
Patroklus: Sure, hold on a minute.
[i:6j6ujsz7]Rezzes new item.[/i:6j6ujsz7]
Patroklus: What color would you like the pose ball?
Customer: Oh, the same. That's okay.
Patroklus: There you are. You get a custom job, hehe:) This one's unique.
Customer: Thanks! See you round.
Patroklus: Bye.[/quote:6j6ujsz7]

I, however, did not keep my own record of the conversation and can't recall if I did say that it was a 'custom job' or that it was 'unique'. I might say that I suspect the chat log has been forged since I would say 'colour' (UK spelling) rather than 'color' (US spelling). I certainly don't recall intending by my speech or actions to say that I would never use the texture again in another item.

What then does the chat log add to the evidence available to the court when it can so easily be dismissed as forged? This is my point under b) above. We can assume that in most (perhaps all) cases it will be in the interests of one party in the dispute to say that any chat log produced is forged. Under those circumstances the value of providing the state (i.e. the CDS) with access to all private communications seems negligible to me.

In addition I don't think it is necessary. The Community Standards, quoted above, do not prevent anyone from giving evidence. The customer in the scenario above would still be able to say that I had agreed to provide the product as a unique, custom job but without producing what he claims to be a record of the conversation. Since the effect would be the same in either case I contend as in a) above that the provision is not necessary.

Finally, let me say why I object to this provision. I value my privacy. I want the conversations that I have within my home or with customers in a shop, or with strangers in the Marketplatz to remain private unless I give my consent otherwise. It is a feature of Second Life that I cherish. I like to feel that I can say or do anything (within the ToS and my own code of decency!) without it coming back to bite me in future years. I feel uneasy and unhappy about this proposal in a similar way to the unease I felt when Kendra took offence at a disposable comment at a CSDF meeting; I don't want to feel that I have to censor myself when going about my Second Life. I'm afraid I would need much more convincing in order to accept this aspect of your proposals.

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Re: Chat logs

Post by Ashcroft Burnham »

Accidental double posting, can't delete. Please ignore.

Last edited by Ashcroft Burnham on Mon Aug 21, 2006 12:31 pm, edited 1 time in total.
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Re: Chat logs

Post by Ashcroft Burnham »

[quote="Patroklus Murakami":2gtezuz7]Let's try to unpack some of these issues one by one. I'll start with chat logs because I feel it is a major sticking point and we are not agreed on this yet.

I could not find a reference banning the use of chat logs in the Terms of Service but there is this section in the Community Standards (which users agree to read and abide by when they accept the ToS):

[quote:2gtezuz7]"Remotely monitoring conversations, posting conversation logs, or sharing conversation logs without consent are all prohibited in Second Life and on the Second Life Forums."[/quote:2gtezuz7]

Your proposal would circumvent this prohibition by requiring citizens to provide consent to the use of all past and future communications inworld and out of world including chat, IMs, external emails, recordings of voice chat, telephone conversations etc. The same rules would apply to any non-citizen who decided to pursue a case through the CDS courts.[/quote:2gtezuz7]

I do not agree that it is accurate to characterise what I propose as any sort of circumvention. The purpose of the provision is not to prevent dissemination of conversation logs at all, but to prevent such dissemination without consent. Under my proposal, there would be consent: the term would operate exactly as intended. It is perfectly reasonable for a community not to let people (continue to) participate in it unless they agree to abide by the standards of that community, in our case, our laws and terms of service.

[quote:2gtezuz7]I agree that the courts will need to be able to receive evidence in order to reach a decision but I don't accept that a) this means that we have to agree to having our privacy invaded in this way and b) that the method you suggest would improve the decision-reaching powers of the courts in any appreciable way.

Let me illustrate my point by way of a (fictitious) example: One day while at my store a customer asked me if the floor cushions I was selling came in any different colours, he wanted ones in grey to go with his home decor. I decided to retexture the one he wanted with another of my unique textures and sold it to him for the same price as the regular ones. I joked at the time that he was getting a custom job and even included that in the description of the item. A few weeks later I decided to refresh my product lines and included the grey texture along with a number of others. Said customer IMd me and said he was angry that I'd put on sale the item I produced specially for him. He said that he had only bought it because it was a 'custom' item as I had admitted by including it in the item description and that I had broken my agreement with him by putting it on general sale. He decides to sue me through the CDS courts to get me to withdraw the items for sale and produces the following chat log as evidence:

[quote:2gtezuz7]Customer: Does this come in any colors? I wanted gray.
Patroklus: Sure, hold on a minute.
[i:2gtezuz7]Rezzes new item.[/i:2gtezuz7]
Patroklus: What color would you like the pose ball?
Customer: Oh, the same. That's okay.
Patroklus: There you are. You get a custom job, hehe:) This one's unique.
Customer: Thanks! See you round.
Patroklus: Bye.[/quote:2gtezuz7]

I, however, did not keep my own record of the conversation and can't recall if I did say that it was a 'custom job' or that it was 'unique'. I might say that I suspect the chat log has been forged since I would say 'colour' (UK spelling) rather than 'color' (US spelling). I certainly don't recall intending by my speech or actions to say that I would never use the texture again in another item.

What then does the chat log add to the evidence available to the court when it can so easily be dismissed as forged? This is my point under b) above. We can assume that in most (perhaps all) cases it will be in the interests of one party in the dispute to say that any chat log produced is forged. Under those circumstances the value of providing the state (i.e. the CDS) with access to all private communications seems negligible to me.

In addition I don't think it is necessary. The Community Standards, quoted above, do not prevent anyone from giving evidence. The customer in the scenario above would still be able to say that I had agreed to provide the product as a unique, custom job but without producing what he claims to be a record of the conversation. Since the effect would be the same in either case I contend as in a) above that the provision is not necessary.[/quote:2gtezuz7]

You seem to conflate two quite distinct issues, which must be separated in order to appreciate fully the implications of your argument, those issues being (1) the extent to which the conversation logs are genuine, and (2) the relevance of having evidence of the exact words used, rather than general descriptions of the conversation.

You assume that the mere fact that conversations [i:2gtezuz7]can[/i:2gtezuz7] be forged means that they necessarily will be in each case where a party seeks to rely on them as evidence. That is a rather absurd conclusion. There will no doubt be many cases where parties do not dispute what was said per se, but might nonetheless wish, if the provision that I suggest was not enacted, to conceal what they admit is the truth from the courts. What advantage is there in those cases of permitting such people to do so?

You also seem to assume, although without reasoning in support, that a court can usefully reach a decision about a case such as that which you give in your example without even considering the exact words used in a conversation. This conclusion seems manifestly absurd: how can a court determine the legal effect of certain statements when it does not have before it the exact words used? In the example that you give, what exact evidence do you think that the court would have before it?

The point is this: in cases where the truthfulness of the conversation logs are questioned, there is a two stage process: (1) the court must decide whether the logs are truthful; and (2) if it finds that they are, it must decide what legal effect that the statements therein have. Our courts in that respect are no different from real-life courts, which have to hear evidence about what people remember about conversations (and, especially in the case of police officers on duty, conversations that are recorded word-for-word in a notebook). It is always possible (and trivially easy) to invent, either in oral evidence before the court, or in a (supposedly) contemporary written record, a false account of what was said, but that has never been a reason for the court to refuse to hear such evidence. Most evidence that real-life courts hear is evidence that it is trivially easy to invent (in theory at least - making it convincingly fit with the undisputed facts and be internally coherent is often another matter), where there is no ready and conclusive means of testing its accuracy. That is the whole function of the court as trier of fact: to decide who is telling the truth if there is a conflict on the matter.

Once a court has then established what was said, it goes on to consider the effect of what was said. It would be unimaginable for a court to be able to do this with any semblence of efficacy without being able to adjudicate on the basis of the exact words, rather than vague impressions of them.

In your case, for example, suppose that your customer said simply "he promised me a unique item", and you said "I just said I'd made a custom texture". How can the court determine from that whether you had promised, in effect, that you would not sell to anybody else a like item? Without giving a record of the exact words, each party is effectively telling the court its conclusion about the effect of what was said, but that conclusion is one which it is the function of the [i:2gtezuz7]court[/i:2gtezuz7] to draw from the raw evidence before it. The court cannot perform that essential function if it is artificially denied access to such evidence.

To your example, there could always be a counter-example: suppose that a citizen was accused of mis-selling items by giving misleading descriptions. Whether the items were accurately described turned on the nuances of what was said. The vendor claimed that her or his descriptions were perfectly accurate, but refused for any records of what was actually said to be used in evidence. How can a system produce just results where people have the power to reduce its effectiveness in that way?

[quote:2gtezuz7]Finally, let me say why I object to this provision. I value my privacy. I want the conversations that I have within my home or with customers in a shop, or with strangers in the Marketplatz to remain private unless I give my consent otherwise. It is a feature of Second Life that I cherish. I like to feel that I can say or do anything (within the ToS and my own code of decency!) without it coming back to bite me in future years. I feel uneasy and unhappy about this proposal in a similar way to the unease I felt when Kendra took offence at a disposable comment at a CSDF meeting; I don't want to feel that I have to censor myself when going about my Second Life. I'm afraid I would need much more convincing in order to accept this aspect of your proposals.[/quote:2gtezuz7]

The best way of making sure that what you say does not come back to bite you is to say only those things that you won't have cause to regret. It is always relaxing to feel that one's actions will not have adverse consequences to oneself, but that does not mean that a society in which people are allowed to evade such consequences is better overall than one in which people are not; for the corollary of the relaxation of living in a society in which one's own actions do not have adverse consequences to oneself is living in a soceity in which other people's actions do not have adverse consequences to themselves, even if they might to other people. Is it not a more just and fair soceity in which the legal consequences of what a person says, as well as does, are determined by a court in accordance with law, rather than one in which conversations, whatever practical consequences they may have, have no legal consequences commensurate therewith? What is so different about SecondLife from real life that you think that the former, but not the latter, is better if everybody has the power, no matter what the interests of justice demand, to conceal from everybody the contents of a conversation?

However pleasant it would be, therefore, to be able rest assured that nobody could use anything that one said against one - whether one deserved it to be so used or not - the consequences of living in a world in which everybody else shares that same assurance would be markedly unpleasant, and to an extent that far outweighed the pleasantness. It is a fairer and more just society in which the neutral arbiter that is the court, acting in accordance with law, decides whether what one has said should really be held against one, and that the same rule applies to all. Justice should never be sacrificed in the name of privacy merely so that people can conceal from the scrutiny of the institutions of justice their conduct, however reprehensible that it may be, or any evidence of such conduct.

True privacy is about being left in peace and quiet, and not unjustifiedly herangued by those who improperly wish to interfere with the ordinary incidents of one's daily life. It can never be said that a duly constituted court, acting in accordance with law, is an improper interference with anybody's daily life.

In any event, you miss a critical issue about the conversation logs, which is this: the proposals are not just for consent to be given for evidence to be given in court proceedings about conversations, but for transcripts of those proceedings to be made available to the public. It cannot be in the interests of justice for the records of judicial proceedings to be concealed from public scrutiny merely because some of the participants therein would desire them to be.

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Post by Patroklus Murakami »

[quote:3k0vvi41]"By entering into this agreement, you hereby give your unqualified and irrevocable consent for any records of any conversations or other communication, in any form whatsoever, whether made before or after this agreement was entered into, to be used in evidence in any in-world judicial proceedings, and for any records of any in-world judicial proceedings (including records of anything said by or to you during those proceedings) to be made available to the public in perpetuity."[/quote:3k0vvi41]

This aspect of Ashcroft's proposals is an unacceptable invasion of privacy. It would be one thing if we were simply talking about records of conversations from the time the legal system is instituted but this goes back before. Anything any citizen ever said which has been recorded by another party could be used against them! Not only would we have to be careful about what we say in future but also have to have led a blameless Second Life until this point. I fear that making this a condition of future citizenship will hardly enable us to grow.... and I don't see our current citizenry standing for it either. I'm going to run a poll on this aspect of the proposal to gauge public opinion.

To draw a real life analogy, it's as if we were to consent that every conversation we have on the street or over the phone could be recorded by another party for the purposes of a trial. I wouldn't accept those terms as part of a RL community and I don't see why I should here.

In RL people are rightly defensive of their privacy; some people encrypt their emails (and defend the right to do so against government interference) because they don't want others to read their private conversation. Some people protest against wiretapping to intercept their private telephone calls. One of the arguments used against this defence of privacy is that 'they have nothing to fear if they're not doing wrong'. I fear that Ashcroft's respone to my defence of my privacy sounds pretty similar.

I have yet to see a convincing reason why this aspect of the proposal is seen as being essential given that chat logs can so easily be forged. The central point against this is that even if chat logs are produced they do not get the court any closer to the actual words that were used unless both parties accept that they are a true record. Ashcroft replies:
[quote:3k0vvi41]There will no doubt be many cases where parties do not dispute what was said per se, but might nonetheless wish, if the provision that I suggest was not enacted, to conceal what they admit is the truth from the courts. What advantage is there in those cases of permitting such people to do so? [/quote:3k0vvi41]
What advantage is there in admitting chat logs in court if one party (which wants to conceal the truth from the court) can simply assert that it is a forgery? The court is then left with a case of 'he said, she said' and is no nearer the truth.

[quote:3k0vvi41]You also seem to assume, although without reasoning in support, that a court can usefully reach a decision about a case such as that which you give in your example without even considering the exact words used in a conversation. This conclusion seems manifestly absurd: how can a court determine the legal effect of certain statements when it does not have before it the exact words used? In the example that you give, what exact evidence do you think that the court would have before it? [/quote:3k0vvi41]
Actually I assume nothing of the sort :). It's an open question as to whether the court could usefully reach a decision in the example I gave. I presented it in order to make the point that chat logs are of limited use and that Ashcroft's proposals ask us to give up too much for too little. Since we do not carry recording devices with us every second of every day in RL, courts are often required to determine the legal effect of certain statements without the exact words used. I think our courts will have to get used to that too, except in those cases where both parties agree that a chat log (or some other piece of evidence) is a true record.

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