Public consultation: judicial qualification requirements

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Beathan
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Post by Beathan »

As I continue to review the judicial qualification packet -- both for the sake of reviewing it and with an eye to possibly submitting it -- I remain troubled by its scope and direction. In fact, the more I review and think about it, the more troubled I become.

My original concern, that the burden of the application is unrealistic, remains. I think that the effort applying for a job should be proportional to the effort required by the job. This application is far more of a burden than the job will be for the foreseeable future.

Second, which was also among my original concerns, the application is woefully deficient in its ability to evaluate the critical character and temperament requirements of the job. Ashcroft indicates that these requirements are hard to evaluate in an application process. I disagree. These requirements are hard to evaluate in an examination-syle application process, which is what we have. However, these requirements are far more easy to evaluate and evaluate fully in a nomination and confirmation/hearing process such as I have proposed as an alternative. The SC could nominate people who have proven to the SC's satisfaction that they have the skills and charactersistics that are looked for; and the RA could hold hearings to confirm the nominees to ensure that the SC's judgment was sound.

Finally, and this is a new criticism, the current application process violates one central tenet of American judicial ethics -- it asks, and asks repeatedly, that applicants answer questions about how they would decide particular cases. That is, the application requires that applicants prejudge cases -- and do so without hearing evidence, assessing credibility, weighing social factors involved in the case, etc. In every American jurisdiction I am aware of, the only proper answer to almost every question asked in this application would be "I cannot answer that question because it would require that I prejudge potential cases I might hear when I am a judge. I would be happy to discuss general principles and general ideas of law and justice with you, but I cannot tell you how I would rule in any given case because each case is complicated and important and therefore demands that it be given full, fair and unprejudiced consideration in its own right and on its own terms."

Frankly, if I were to submit my application today, I would answer almost every question asked by repeating the above statement. That answer strikes me as the only proper answer -- but it is also an entirely useless answer for evaluating an applicant.

Beathan

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Post by Ashcroft Burnham »

[quote="Beathan":1j3uvjrm]My original concern, that the burden of the application is unrealistic, remains. I think that the effort applying for a job should be proportional to the effort required by the job. This application is far more of a burden than the job will be for the foreseeable future.[/quote:1j3uvjrm]

I am rather concerned that you think that the role of a judge in our jurisdiction will not entail, over the period of several cases, the sort of analytic proficiency that is required to be demonstrated in the questionaire. Most cases for the foreseeable future will set new precedents. To do that, a judge must listen carefully to the arguments on both sides, consider any relevant passage in the constitution, statute, previous precedent on a similar or related point, and procedural rule, and decide, having taken all those into account, how the point should be decided. He or she must then write a full judgment, setting out the background, the facts of the case, how any diputes of fact were resolved, the legal issue raised, the argument on both sides, the relevant authorities, and then the judgment on the point of principle, finishing with dealing with applying that judgment of principle to the instant case, and addressing any consequential matters. That, of course, is all in addition to the process of hearing the trial itself, and making all of the procedural decisions associated with any given case. If you think that doing all that in several cases will be substantially less work than answering the questionairre, then you may need to re-think what it takes to be a judge in a common law jurisdiction that has so far virtually no judicial precedent (which, incidentally, is very different indeed to being a judge in a well-established common law jurisdiction).

[quote:1j3uvjrm]Second, which was also among my original concerns, the application is woefully deficient in its ability to evaluate the critical character and temperament requirements of the job. Ashcroft indicates that these requirements are hard to evaluate in an application process. I disagree. These requirements are hard to evaluate in an examination-syle application process, which is what we have. However, these reuirements are far more easy to evaluate and evaluate fully in a confirmation/hearing process such as I have proposed as an alternative. The SC could nominate people who have proven to the SC's satisfaction that they have the skills and charactersistics that are looked for; and the RA could hold hearings to confrim the nominees to ensure that the SC's judgment was sound.[/quote:1j3uvjrm]

Firstly, you do not seem to have addressed the point about the qualification/appointment distinction that I made in my previous response, nor the efforts to which I had gone to attempt to address those issues in a written examination. Even assuming that the written test is incapable adequately of assessing these qualities, there is no reason that they cannot be assessed by the Public Judiciary Scrutiny Panel when the qualified candidates come to be appointed. As I pointed out before, there is a vitally important distinction between the qualification process and the appointment process. The qualification process was never designed to be the only means by which a person's suitability to be a judge is tested. It was designed to ensure that those qualities of judges that are best tested by other judges, in particular, analytic ability and understanding of the theory and practice of the law, were tested by other judges, and not by those (such as legislators or members of the Scientific Council) who are not in such a good position to judge those qualiites. The appointment process was always designed to be the process whereby the attributes of judges that can be judged no less well by the representative sample of the population that will comprise the Public Judiciary Scrutiny Panel than by existing judges could be assessed. The processes that you have described could perfectly easily be adopted by the Public Judiciary Scrutiny Panel in their appointments process. I ought repeat here that the standard applied in qualifying judges will bear no relation to the number of applicants in relation to the number of vacancies: every suitable candidate will be qualified, and it will be for the PJSP to pick the best of them.

Secondly, you appear to think that any criticism at all of the qualification process that I have adopted is reason enough to bring about a radical revision of the constitution, and for the legislature to go back on the carefully- and intensively-negotiated compromise between different schools of thought as regards judicial appointment that lead to the current constitutional arrangements. You have not made in the least clear why that should be so. The purpose of this thread was to invite public ocnsultation on the procedures that I had adopted in order that I might assess whether or not they needed to be revised. The first port of call, therefore, in dealing with any issues with the qualificaiton process is liaison with me, not a radical revision of a new constitutional provision. Anything that genuinely is a reason to believe that there is a problem with the recruitment process is a reason for me to change the process, not, without a great deal more, a reason for the legislature to renege on the intensively-debated compromise that lead to the current arrangements.

[quote:1j3uvjrm]Finally, and this is a new criticism, the current application process violates one central tenet of American judicial ethics -- it asks, and asks repeatedly, that applicants answer questions about how they would decide particular cases. That is, the application requires that applicants prejudge cases -- and do so without hearing evidence, assessing credibility, weighing social factors involved in the case, etc. In every American jurisdiction I am aware of, the only proper answer to almost every question asked in this application would be "I cannot answer that question because it would require that I prejudge potential cases I might hear when I am a judge. I would be happy to discuss general principles and general ideas of law and justice with you, but I cannot tell you how I would rule in any given case because each case is complicated and important and therefore demands that it be given full, fair and unprejudiced consideration in its own right and on its own terms."[/quote:1j3uvjrm]

None of the questions involve resolving disputes of fact: that would, of course, be absurd in the context of a written examination. The questions that involve hypothetical situations are questions about theoretical, legal issues that call for a decision of law based on a set of agreed or already proved propositions of fact that are set out in the question.

The questions do not require candidates to pre-judge actual cases that they will hear because real cases will inevitably be more complex and have other factors that need to be taken into account. The questions expressly ask candidates to assume that, in these particular instances, there are no other facts to take into account. The questions are designed to assess how a prospective judge would approach making judicial decisions in real circumstances. There is no other way of doing that than to use hypothetical examples. There is nothing unethical involved in using hypothetical answers: a judge would not be bound to act on the basis of an answer to an application questionairre given on a hpyothetical and limited set of facts when faced with a real case and the full range of information. It is unrealistic to assume that any person truly suited to judicial office would consier her or himself so bound, or that there is any real sense in which a judicial applicant would be pre-judging real cases that have not even arisen yet and would inevitably be substantially different to the questions raised in the application form.

[i:1j3uvjrm]Edit:[/i:1j3uvjrm]: Indeed, ianswering a hypothetical question in an application form about a fictitious case is no more pre-judging a real case than is having sat on and decided a previous real case with, in some respects, very similar facts, or even merely having had a thought about how, hypothetically or in the abstract, such a case might be decided.

[quote:1j3uvjrm]Frankly, if I were to submit my application today, I would answer almost every question asked by repeating the above statement. That answer strikes me as the only proper answer -- but it is also an entirely useless answer for evaluating an applicant.[/quote:1j3uvjrm]

Not "almost every question" is a hpyothetical situation, so that cannot be right. And, as I have already explained, what you have proposed cannot be the only proper answer: there is nothing in the least improper about giving a (perhaps provisional and expressly qualified) view of the hypothetical situation on the basis of the limited facts presented. After all, in many real-life decisions (where, for example, a matter is being judged on the basis of only written representations, or the hearing of an appeal) are based on similary limited information.

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Post by Beathan »

In response to Ashcroft, I will address two points first. Later, when I have time, I will return to the other points.

First, I am not saying that the examination fails to address the skillset needed for the job as judge or that the skillset you indicate is not the right skillset. Rather, I am saying that we have, at the moment, two cases. These cases could each be heard and decided in less time than it will take to complete the current examination. This is a time imbalance -- not a skillset imbalance -- in the application process.

Second, Ashcroft writes [quote:26ypx8za]None of the questions involve resolving disputes of fact: that would, of course, be absurd in the context of a written examination. The questions that involve hypothetical situations are questions about theoretical, legal issues that call for a decision of law based on a set of agreed or already proved propositions of fact that are set out in the question.[/quote:26ypx8za]

It is no answer to say that the questions are hypothetical questions. The problem is in the level of detail. I again state that the questions, as asked, could not be answered by any judge or potential judge in any American jurisdiction I am aware of without violating the Canons of Judicial ethics. These facts, or facts very like them, could arise in an actual case -- and judicial candidates would have prejudged those cases by answering the hypothetical questions. This is unethical in most American jurisdictions.

Imagine that your daughter comes in after borrowing the car and asks, "Dad -- hypothetically -- what would happen if I crashed the car?" That is not a hypothetical question. Or what if she asked it in advance -- "Dad, hypothetically, how much trouble would I be in if I went to an all-night party this weekend?" That is not a hypothetical question, either. The key here is in the reality of the detail. The problem with this application is in the reality of the detail.

While the American canons of judicial ethics do not apply here, I, at least, will look to them in any judicial role I fill or apply for. At the moment, I am disabled from effectively applying for these positions because the questions require answers that violate the rules of judicial ethics I would apply. This is a problem, and the problem is not addressed by Ashcroft's answer.

Beathan

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Post by Diderot Mirabeau »

Frankly, the amount of criticism levelled against the judiciary application form has reached a level and a thoroughness of detail where it strikes me as misconceived or rather pointless to respond with long "rebuttals", where one tries once again to convince the other party that he is mistaken in assuming that the application form is unsuitable. This is after all not a courtroom where you are a lawyer trying to convince the jury/judge in presence that the other party's argument is wrong. It is a voicing board for the community where we can work together to achieve common solutions agreed by most to be feasible in response to problems perceived by us to be significant - no matter the basis of that perception.

I guess the process has reached a point where it would be unfeasible to interrupt it midway through but if at the deadline for applications it is found that no qualified candidates are found I would think it most prudent for those in charge of the process to actually take on board the massive amount of feedback and response received here rather than shrugging it off as "baseless arguments."

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Post by Fernando Book »

[quote="Ashcroft Burnham":ogiucyxm]I also note that nowhere in what you write above do you provide any specific reasoning to support the proposition that the particular differences (which you do not specify)
(...)
More vague and unfounded speculation. If you have genuine arguments, why do you need to make bad points like this?
(...)
A vague and unsubstantiated assertion to the contrary is, without more, a non-argument.
[/quote:ogiucyxm]
Each time Ashcroft finds an argument he dislikes, he disqualifies it as unfounded, instead of addressing it. It's not a bad tactic, but quite repetitive.

[quote="Ashcroft Burnham":ogiucyxm]Your understanding of the nature of law is seriously flawed. Law is, by its nature, a set of rules governing human behaviour.[/quote:ogiucyxm]
It's your understanding of the law which is flawed. Law must (and can) only intervene as long as there are two or more people or organizations involved: law governs society and human relations, not human behaviour. Human behaviour is governed by religion, psychology or ethics, but not by the law.
[quote="Le baron de Montesquieu":ogiucyxm]
Considered as inhabitants of so great a planet, which necessarily contains a variety of nations, they have laws relating to their mutual intercourse, which is what we call the [i:ogiucyxm]law of nations[/i:ogiucyxm]. As members of a society that must be properly supported, they have laws relating to the governors and the governed, and this we distinguish by the name of [i:ogiucyxm]politic law[/i:ogiucyxm]. They have also another sort of law, as they stand in relation to each other; by which is understood the [i:ogiucyxm]civil law[/i:ogiucyxm].[Stress comes from my Spanish edition of [i:ogiucyxm]]The Spirit of Laws[/i:ogiucyxm][/quote:ogiucyxm]

[quote="Ashcroft Burnham":ogiucyxm]
So, you are criticising what I am doing on what you admit is no basis at all? How is that honest?[/quote:ogiucyxm]
What I'm criticising is that your suppositions on the future are are as unfounded and baseless as mine, as everything we are doing are intellectual constructs. And about suggesting me or my stance being dishonest, Thomas de Quincey tells (and Jorge Luis Borges quotes it in the short essay The Art of Insult) an anecdote of John Henderson "in the spirit of which we mean to act". During a dispute, Henderson's opponent threw a glass of wine in his face. Henderson wiped his face and said: "This, sir, is a digression: now, if you please, for the argument".
[quote="Fernando Book":ogiucyxm]
One problem is that the judiciary we have designed will be prone (in order to justify its existence) to treat the virtual goats cases as a Toyota vs. Reuters case.[/quote:ogiucyxm]
[quote="Ashcroft Burnham":ogiucyxm] More vague and unfounded speculation. If you have genuine arguments, why do you need to make bad points like this? If you have no genuine arguments, why are you posting at all? [/quote:ogiucyxm]
Vague and unfounded? Let's see your words.
[quote="Ashcroft Burham":ogiucyxm]Most cases for the foreseeable future will set new precedents. To do that, a judge must listen carefully to the arguments on both sides, consider any relevant passage in the constitution, statute, previous precedent on a similar or related point, and procedural rule, and decide, having taken all those into account, how the point should be decided. He or she must then write a full judgment, setting out the background, the facts of the case, how any diputes of fact were resolved, the legal issue raised, the argument on both sides, the relevant authorities, and then the judgment on the point of principle, finishing with dealing with applying that judgment of principle to the instant case, and addressing any consequential matters. That, of course, is all in addition to the process of hearing the trial itself, and making all of the procedural decisions associated with any given case.[/quote:ogiucyxm]

[quote="Ashcroft Burnham":ogiucyxm]The point always has been that, since we do not know for sure what our judiciary will need to do, it is always better, in the absence of further infromation, to give it a wide margin of error, and work on the assumption that it may have to deal with a great deal, since it is far better to have a system with too much capacity than with too little, especially since we most certainly do have the "spare steel and concrete" in the form of numerous talented people who are interested in being judges and lawyers in our jurisdiction. [/quote:ogiucyxm]
As I've stated before, any complex system tends to act in a way that justify its own complexity. We haven't created a small system and a way to increment it, but a big system, and now we are thinking what are we doing to do with it. You have written several times about creating "inferior courts", not higher courts. I have no doubt about the talent of our people, but I doubt this system will be able to give them enough compensation (in the form of money, prestige, and, yes, fun) for the work they are going to do. And, finally, I see more and more our judiciary as a system designed for judges and lawyers, and with little concern for the citizens who will use it.

Anonymisation: The qualification process doesn't give you the power of appointing someone, but of disqualifying. I'm pretty sure that any of the usual readers of the forums would need only a 500 words essay to guess if the author is Gwyn, Pat, Beathan, Ranma or me.

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Post by Ashcroft Burnham »

[quote="Beathan":35pfn1m9]First, I am not saying that the examination fails to address the skillset needed for the job as judge or that the skillset you indicate is not the right skillset. Rather, I am saying that we have, at the moment, two cases. These cases could each be heard and decided in less time than it will take to complete the current examination. This is a time imbalance -- not a skillset imbalance -- in the application process.[/quote:35pfn1m9]

That is a rather short-sighted view of things: we are qualifying judges who will hopefully sit for many months, if not years, and hear many cases over that time. Also, I understand that we now have a third case.

[quote:35pfn1m9]Second, Ashcroft writes [quote:35pfn1m9]None of the questions involve resolving disputes of fact: that would, of course, be absurd in the context of a written examination. The questions that involve hypothetical situations are questions about theoretical, legal issues that call for a decision of law based on a set of agreed or already proved propositions of fact that are set out in the question.[/quote:35pfn1m9]

It is no answer to say that the questions are hypothetical questions. The problem is in the level of detail. I again state that the questions, as asked, could not be answered by any judge or potential judge in any American jurisdiction I am aware of without violating the Canons of Judicial ethics. These facts, or facts very like them, could arise in an actual case -- and judicial candidates would have prejudged those cases by answering the hypothetical questions. This is unethical in most American jurisdictions.

Imagine that your daughter comes in after borrowing the car and asks, "Dad -- hypothetically -- what would happen if I crashed the car?" That is not a hypothetical question. Or what if she asked it in advance -- "Dad, hypothetically, how much trouble would I be in if I went to an all-night party this weekend?" That is not a hypothetical question, either. The key here is in the reality of the detail. The problem with this application is in the reality of the detail.

While the American canons of judicial ethics do not apply here, I, at least, will look to them in any judicial role I fill or apply for. At the moment, I am disabled from effectively applying for these positions because the questions require answers that violate the rules of judicial ethics I would apply. This is a problem, and the problem is not addressed by Ashcroft's answer.[/quote:35pfn1m9]

The problem is that you are replying just to the part that you quoted, when I had written rather more on the subject to which you have not responded, that answers the points. For example, what do you have to say to the point that it is no different answering a hypothetical question then judging a similar real case than judging one real case, and later judging another similar one? I spent some time and effort addressing the issue of hypothetical questions and pre-judging in some detail, and it is somewhat disappointing that you have not addressed many of the particular issues that I raised in your response.

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Post by Ashcroft Burnham »

[quote="Diderot Mirabeau":22atogll]Frankly, the amount of criticism levelled against the judiciary application form has reached a level and a thoroughness of detail where it strikes me as misconceived or rather pointless to respond with long "rebuttals", where one tries once again to convince the other party that he is mistaken in assuming that the application form is unsuitable. This is after all not a courtroom where you are a lawyer trying to convince the jury/judge in presence that the other party's argument is wrong. It is a voicing board for the community where we can work together to achieve common solutions agreed by most to be feasible in response to problems perceived by us to be significant - no matter the basis of that perception.[/quote:22atogll]

I do not agree with your analysis here. You seem to assume that addressing the substance of arguments thoroughly is not consistent with working together to achieve common solutions, but it is not clear why you think this. Why should common solutions not be solutions that are arrived at after careful and detailed consideration of the merits of a point? Thorough consideration of the merits of arguments in favour of or against any given proposition is most certainly not something that is or should be confined only to the courtroom.

[quote:22atogll]I guess the process has reached a point where it would be unfeasible to interrupt it midway through but if at the deadline for applications it is found that no qualified candidates are found I would think it most prudent for those in charge of the process to actually take on board the massive amount of feedback and response received here rather than shrugging it off as "baseless arguments."[/quote:22atogll]

If there are no qualified candidates after the initial qualification round, I will certainly reconsider the method of qualifications. There being no qualified candidates after such a process would indicate that the process had failed in some way and merited revision.

If, unfortunately, that transpired, however, that would not necessarily mean that every criticism made against the process was justified. It is certainly not a proper complaint to make against me that I address carefully and with reasons the substance of other's criticisms and give reasons why those criticisms are flawed, nor is it fair to say that such a process is merely "shrugging [something] off".

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Post by Ashcroft Burnham »

[quote="Fernando Book":2frip75q]Each time Ashcroft finds an argument he dislikes, he disqualifies it as unfounded, instead of addressing it. It's not a bad tactic, but quite repetitive.[/quote:2frip75q]

It is not arguments that I state are unfounded: it is mere assertions. Arguments are not merely claims, but claims backed by a line of reasoning. Merely asserting that I am wrong is not an argument. Each of the occasions that you cite are occasions on which you have merely asserted your position, rather than provided reasoning in support of it.

[quote="Ashcroft Burnham":2frip75q]It's your understanding of the law which is flawed. Law must (and can) only intervene as long as there are two or more people or organizations involved: law governs society and human relations, not human behaviour. Human behaviour is governed by religion, psychology or ethics, but not by the law.
[quote="Le baron de Montesquieu":2frip75q]
Considered as inhabitants of so great a planet, which necessarily contains a variety of nations, they have laws relating to their mutual intercourse, which is what we call the [i:2frip75q]law of nations[/i:2frip75q]. As members of a society that must be properly supported, they have laws relating to the governors and the governed, and this we distinguish by the name of [i:2frip75q]politic law[/i:2frip75q]. They have also another sort of law, as they stand in relation to each other; by which is understood the [i:2frip75q]civil law[/i:2frip75q].[Stress comes from my Spanish edition of [i:2frip75q]]The Spirit of Laws[/i:2frip75q][/quote:2frip75q][/quote:2frip75q]

How is the fact that law is a body of rules by which humans govern other humans' behaviour because of the effect that some human behaviour has on other humans a reason for contending that law is not a body of rules that govern humans behaviour?

[quote="Ashcroft Burnham":2frip75q]What I'm criticising is that your suppositions on the future are are as unfounded and baseless as mine, as everything we are doing are intellectual constructs. [/quote:2frip75q]

If you are going to criticise what I write, please at least take the trouble to read what I write carefully. I have stated many times that the point is not that I am claiming, without foundation, that there will be very many cases, but that, in a state of uncertainty about how many cases that there will be, it is better to work on the premise that there will be many than that there will be few, since a system designed for many cases that, in fact, handles few is far less of a problem than a system built for few that has to handle many.

[quote:2frip75q]And about suggesting me or my stance being dishonest, Thomas de Quincey tells (and Jorge Luis Borges quotes it in the short essay The Art of Insult) an anecdote of John Henderson "in the spirit of which we mean to act". During a dispute, Henderson's opponent threw a glass of wine in his face. Henderson wiped his face and said: "This, sir, is a digression: now, if you please, for the argument".[/quote:2frip75q]

My point was quite specifically that you had asserted, as you later admitted, without foundation, that our courts will have few cases to handle, and that those cases will be unimportant, and you used that as a basis of criticising the fact of requiring a rigorous system of judicial qualifications; yet, when I stated that it was very possible that the system would have to handle more cases than you imagined, and more important ones, you claimed that my claim that the courts would have to handle lots of important cases (which, in any event, I had never made) was wtihout foudndation, and for that reason that the point in support of rigerous qualification requirements that I had made was bad. Merely quoting Jorge Luis Borges does not address that point. Where is the digression here?

[quote="Fernando Book":2frip75q]As I've stated before, any complex system tends to act in a way that justify its own complexity. We haven't created a small system and a way to increment it, but a big system, and now we are thinking what are we doing to do with it.[/quote:2frip75q]

We do not have a judiciary in search of cases: we have three cases in search of a judiciary to decide them. How, in those circumstances, can you properly assert that the judiciary is a system that we are wondering what to do with?

[quote:2frip75q]You have written several times about creating "inferior courts", not higher courts.[/quote:2frip75q]

I am not sure what exactly you mean here. We will start with just the one Court of Common Jurisdiction, the High Court of Common Jurisdiction, which will be a superior Court of Common Jurisdiction. We will add inferior courts as and when they are needed.

[quote:2frip75q]I have no doubt about the talent of our people, but I doubt this system will be able to give them enough compensation (in the form of money, prestige, and, yes, fun) for the work they are going to do.[/quote:2frip75q]

Why? Have you any real idea about what motivates people to become judges in a virutual jurisdiction? Even in real life, people applying for judicial appointments are rarely motivated by financial reward. Many English High Court judges are people who were such successful barristers before they were appointed to the High Court Bench, earning sometimes millions of pounds a year, that their High Court judicial salary of something in the order of £200,000 per annum represents a huge pay cut. Nonetheless, there is never a shortage of applicants for the High Court bench.

[quote:2frip75q]And, finally, I see more and more our judiciary as a system designed for judges and lawyers, and with little concern for the citizens who will use it.[/quote:2frip75q]

This is more of that baseless assertion that we were discussing above. It is baseless assertion because you have merely asserted that "our judiciary [is] a system designed for judges and lawyers... with little concern for the citizens", and not stated any [i:2frip75q]reasons[/i:2frip75q] for that assertion.

[quote:2frip75q]Anonymisation: The qualification process doesn't give you the power of appointing someone, but of disqualifying. I'm pretty sure that any of the usual readers of the forums would need only a 500 words essay to guess if the author is Gwyn, Pat, Beathan, Ranma or me.[/quote:2frip75q]

How would that apply any less to the Scientific Council?

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Post by Beathan »

Ashcroft writes [quote:2iy8wpax]The problem is that you are replying just to the part that you quoted, when I had written rather more on the subject to which you have not responded, that answers the points. For example, what do you have to say to the point that it is no different answering a hypothetical question then judging a similar real case than judging one real case, and later judging another similar one? I spent some time and effort addressing the issue of hypothetical questions and pre-judging in some detail, and it is somewhat disappointing that you have not addressed many of the particular issues that I raised in your response.[/quote:2iy8wpax]

The problem here is that, from where I sit, it is black letter law that judicial applicants cannot ethically answer hypothetical questions. Ashcroft's response, both originally and in his new response, is to defend hypothetical questions as necessary for the application examination structure he is implementing. Again, this is not an answer. From the perspective of American judicial ethics, those questions cannot be answered, even if asking and answering them is a good idea from some abstract perspective.

Further, there is additional point, which also might indicate a split in judicial theory as we cross the pond. In the U.S., advisory opinions of hypothetical cases are disfavored. Such cases are prohibited outright in Federal Court. We must have what is called "a case in controversy" -- which means that we must have a real dispute between real people based on real facts which the court can hear and think about in rendering a decision. On this theory, the answer to a hypothetical question or a hypothetical case is, in fact, no answer at all.

Based on this perspective, hypothetical questions are not merely ethically suspect as prejudging cases, they are actually useless insofar as they do anything other than prejudging cases. That is, if the hypothetical does not constrain the judge's future decisionmaking, the answer to the question is meaningless. If the hypothetical does constrain future action, it is unethical prejudging of cases.

This problem does not arise from one case to the next exactly because each case presents its own facts and parties and circumstances. A judge is acting ethically as long as the judge takes up and considers each case on its own merits based on its own evidence and the circumstances of the dispute and the parties. This can make apparently inconsistent decisions consistent in fact. Hypotheticals, through their detailed generality, are very different animals. They ask judges to make decisions based on incomplete facts entirely divorced from any circumstances. From the perspective of American judicial theory, such questions cannot be answered just because they are hypothetical and untethered from facts, persons, and circumstances.

This is based on a common American idea that law, like engineering, cannot be done in the abstract. It is not essentially about ideas; it is essentially about people and human interactions. The standard academic formulation is that law is about conceptions, not concepts. Law is nonsense without consideration of particular people, rights, duties and circumstances.

Notably, a nomination, confirmation process does not have this problem. A potential judge's reasoning ability, as well as aspects of character and temperament, can be thoroughly tested through the confirmation process. Further, the confirmation process can test these abilities without resort to hypotheticals. I actually think that an examination process need not resort to hypotheticals, either. Good legal reasoning is not so unlike good reasoning in general that good legal reasoning ability cannot be fathomed without resort to legal hypotheticals. In fact, I think that the general philosophical questions in the exam already provide complete answers, and an astute observer would be able to fully and accurately judge the qualification of an applicant without even reading the answers to the hypothetical questions.

At least I hope that is the case, because, for the ethical reasons I have stated, I am very unlikely to provide direct answers to any of the hypothetical questions in this process. If, as a result of applying a standard American rule of judicial ethics, my application is given a grade of "unqualified", I expect that we will have a fourth case concerning anti-American bias in judicial nominations for the new court to decide.

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Post by Ashcroft Burnham »

[quote="Beathan":2ae1dg5y]The problem here is that, from where I sit, it is black letter law that judicial applicants cannot ethically answer hypothetical questions. Ashcroft's response, both originally and in his new response, is to defend hypothetical questions as necessary for the application examination structure he is implementing. Again, this is not an answer. From the perspective of American judicial ethics, those questions cannot be answered, even if asking and answering them is a good idea from some abstract perspective.[/quote:2ae1dg5y]

This does not make any sense: the black-letter rules of any given fist-life jurisdiction are, in and of themselves, of no application or relevance to us. We may draw from the rules ideas or inspiration, or look behind them to the principles and see whether we can learn anything from them, but it is absurd slavishly to follow another legal system's rules (of any sort whatsoever), merely because they are rules of another legal system. Indeed, it is an express part of our qualification requirements that a prospective judge needs to be both willing and able to forge new ideas, and start with a clean slate, forging our own principles, rules and precedents, and never, ever accept a proposition of law [i:2ae1dg5y]merely[/i:2ae1dg5y] because it is a proposition of law that is true in some first-life jurisdiction.

It is one thing to say "this rule holds in jurisdiction X, and therefore it will hold in the CDS", and quite another to say "this rule holds in jursidiction X for reason Y; Y is a valid reason, and is sufficient to have the rule in question, and, for that reason, therefore, that rule shall apply to the CDS". The second involves examining the reason that the rule holds elsewhere, and involves that reason, and not the mere fact of it holding elsewhere, as the reason for applying it to the CDS.

So, returning to the point, it simply does not make sense to claim that my arguments about why there is nothing in principle wrong with hypotheticals is not a good argument [i:2ae1dg5y]because[/i:2ae1dg5y] some norm of a jurisdiction foreign to the CDS prohibits it. An argument on first principles, and only an argument on first principles, will suffice to show that it is improper to ask those who seek judicial qualification to answer hypothetical problem questions about the law and practice in the CDS.

[quote:2ae1dg5y]Further, there is additional point, which also might indicate a split in judicial theory as we cross the pond. In the U.S., advisory opinions of hypothetical cases are disfavored. Such cases are prohibited outright in Federal Court. We must have what is called "a case in controversy" -- which means that we must have a real dispute between real people based on real facts which the court can hear and think about in rendering a decision. On this theory, the answer to a hypothetical question or a hypothetical case is, in fact, no answer at all.[/quote:2ae1dg5y]

Courts, [i:2ae1dg5y]qua[/i:2ae1dg5y] courts, may not decide purely academic matters here, either, but a ruling by a court on a point is a world apart from an answer given by an applicant to judicial office, who does not yet hold the authority of a judge, and is not acting in anything other than a personal capacity, in a questionaire for judicial qualification. The purpose of the rule is to prevent the court's resources from being abused, since the function of courts is to render resolutions to practical problems.

[quote:2ae1dg5y] Based on this perspective, hypothetical questions are not merely ethically suspect as prejudging cases, they are actually useless insofar as they do anything other than prejudging cases. That is, if the hypothetical does not constrain the judge's future decisionmaking, the answer to the question is meaningless. If the hypothetical does constrain future action, it is unethical prejudging of cases.[/quote:2ae1dg5y]

That does not make any sense in the context of what we are discussing, that is hypothetical problem questions on an application form for qualificaiton for judicial office by people who are not yet judges, and therefore who are not exercising or purporting to exercise any of the powers of a court. It is most certainly not useless, as I have already explained above, to see how candidates for office would fare when called upon to make a decision, and I have already explained why the argument from prejudice does not make any sense.

[quote:2ae1dg5y]This problem does not arise from one case to the next exactly because each case presents its own facts and parties and circumstances. A judge is acting ethically as long as the judge takes up and considers each case on its own merits based on its own evidence and the circumstances of the dispute and the parties. This can make apparently inconsistent decisions consistent in fact. Hypotheticals, through their detailed generality, are very different animals. They ask judges to make decisions based on incomplete facts entirely divorced from any circumstances. From the perspective of American judicial theory, such questions cannot be answered just because they are hypothetical and untethered from facts, persons, and circumstances.[/quote:2ae1dg5y]

The point about the detailed circumstances of a case does not, as I have already pointed out, make sense: firstly, none of the questions invite applicants to make decisions of [i:2ae1dg5y]fact[/i:2ae1dg5y], so any points about assessing evidence, the credibility of witnesses and suchlike is quite irrelevant. Secondly, the questions specifically require the candidates to assume that there are no other relevant facts. That is not an inconceivable state of affairs. Thirdly, many judgments in real life have to be made on very limited information, such as on appeal, or where there are only written representations from the parties. It is not true, therefore, that the hypothetical questions are necessarily distinct from what a real-life judge would have to do in practice on at least some occasions. The quesion about penalties is a good example of this: many people who are banished by marshals of the peace will never respond to our notices and take no part in our proceedings. Judges will nonetheless have to decide, on the basis just of the written information provided by the marshals of the peace (and uncontested by the defendant) what penalty to impose. That information is likely to be no more (and probably less) than is contained in the hypothetical questions about penalties.

[quote:2ae1dg5y]This is based on a common American idea that law, like engineering, cannot be done in the abstract. It is not essentially about ideas; it is essentially about people and human interactions. The standard academic formulation is that law is about conceptions, not concepts. Law is nonsense without consideration of particular people, rights, duties and circumstances.[/quote:2ae1dg5y]

Not all circumstances are relevant to all decisions, and not all relevant information is available to the court when making decisions.

[quote:2ae1dg5y]Notably, a nomination, confirmation process does not have this problem. A potential judge's reasoning ability, as well as aspects of character and temperament, can be thoroughly tested through the confirmation process. Further, the confirmation process can test these abilities without resort to hypotheticals. I actually think that an examination process need not resort to hypotheticals, either.[/quote:2ae1dg5y]

If that is the case, this debate is not a debate about which of the two processes is better at all. But either process must ensure that a candidate has the right [i:2ae1dg5y]practical[/i:2ae1dg5y] abilities.

[quote:2ae1dg5y]Good legal reasoning is not so unlike good reasoning in general that good legal reasoning ability cannot be fathomed without resort to legal hypotheticals. In fact, I think that the general philosophical questions in the exam already provide complete answers, and an astute observer would be able to fully and accurately judge the qualification of an applicant without even reading the answers to the hypothetical questions.[/quote:2ae1dg5y]

I know that the US Bar course is very different, but the Bar course in England is a heavily [i:2ae1dg5y]practical[/i:2ae1dg5y] course, reqiring students to undertake assessments based on mock courtroom scenarios, complete with actors to play witnesses and practising lawyers paid to come and act as opponents in negotiations. University examinations (in the UK, the academic stage is separate from the Bar qualification itself) commonly involve hypothetical problem questions to test students' abilities to apply their understanding of the law to practical situations, and to abstract from practical situations the theoretical issues of the law that they have been studying, and interviews for pupillage (the apprenticeship for barristers) commonly require candidates to answer detailed questions about hypothetical cases, or to undertake mock advocacy exercises. All of that is important to test the abilities of such people to apply their undrestanding of the theory to practical situations. There is no reason why the same approach should not be applied to judges.

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Post by Beathan »

For the most part, I have already said my piece on this. However, I will make two observations.

Ashcroft writes [quote:oam3hjgr]This does not make any sense: the black-letter rules of any given fist-life jurisdiction are, in and of themselves, of no application or relevance to us. We may draw from the rules ideas or inspiration, or look behind them to the principles and see whether we can learn anything from them, but it is absurd slavishly to follow another legal system's rules (of any sort whatsoever), merely because they are rules of another legal system. Indeed, it is an express part of our qualification requirements that a prospective judge needs to be both willing and able to forge new ideas, and start with a clean slate, forging our own principles, rules and precedents, and never, ever accept a proposition of law merely because it is a proposition of law that is true in some first-life jurisdiction.

It is one thing to say "this rule holds in jurisdiction X, and therefore it will hold in the CDS", and quite another to say "this rule holds in jursidiction X for reason Y; Y is a valid reason, and is sufficient to have the rule in question, and, for that reason, therefore, that rule shall apply to the CDS". The second involves examining the reason that the rule holds elsewhere, and involves that reason, and not the mere fact of it holding elsewhere, as the reason for applying it to the CDS.

...

I know that the US Bar course is very different, but the Bar course in England is a heavily practical course, reqiring students to undertake assessments based on mock courtroom scenarios, complete with actors to play witnesses and practising lawyers paid to come and act as opponents in negotiations. University examinations (in the UK, the academic stage is separate from the Bar qualification itself) commonly involve hypothetical problem questions to test students' abilities to apply their understanding of the law to practical situations, and to abstract from practical situations the theoretical issues of the law that they have been studying, and interviews for pupillage (the apprenticeship for barristers) commonly require candidates to answer detailed questions about hypothetical cases, or to undertake mock advocacy exercises. All of that is important to test the abilities of such people to apply their undrestanding of the theory to practical situations. There is no reason why the same approach should not be applied to judges.[/quote:oam3hjgr]

First, while it is true that black-letter law of a RL jurisdiction has no authority in this discussion as law, it certainly has persuasive and moral force. To me, this is especially true of judicial ethics. I intend to apply the standards of judicial ethics that are current in my community, but not because they are current in my community. I will apply them because I happen to agree with them as sound and solid ethical principles. I will not act in a way that I consider unethical, either in RL or in SL. I will refuse to participate in a process insofar as it asks me to do so. I believe that this application process asks me to do so.

Second, there is a world of difference between the job of judge and the job of attorney -- and a world of difference between the appropriate questions to ask people you are qualifying for those jobs. In essence -- it is not only appropriate for attorney's to prejudge their cases, it is probably ethically required that they do so. Zealous advocacy on behalf of a client requires a personal commitment of the attorney -- and that requires prejudging the case. Doubt and circumspection in an attorney are often fatal.

For that reason, attorney qualification exams and attorney questioning can and should involve hypothetical questions. There is not only no ethical problem with asking attorneys hypothetical questions -- such questions are an excellent way to test and sound out the attorneys. In RL, I have taken and passed four bar exams and many, many lawschool exams. All involved hypothetical questions -- and appropriately so. Further, as an attorney with a perceived expertise in a highly technical area of law (construction lien and bond claims), I frequently answer hypothetical questions from clients and other attorneys -- and teach seminars centered around hypothetical questions. However, when I am being asked to act an an arbitrator in a case, as I do with some frequency, I categorically refuse to answer hypothetical questions.

Judges must, above all, as a paramount principle, espouse and maintain neutrality. Judges cannot ethically prejudge any question and should never be asked to do so. While attorneys should be partisan and, indeed, prejudiced in favor of their clients, judges must never be.

For this reason, it is not uncommon for great attorneys to make terrible judges (and, although less common, for bad attorneys to make great judges). There is an overlap in skills between attorneys and judges. Both need to have solid reasoning ability, incisiveness and decisiveness to do their respective jobs well. However, there is a significant difference -- primary a matter of character and temperament -- between the jobs as well.

Frankly, I think that the hypothetical questions in this exam are great hypothetical questions -- and I would have no quarrel with them in the context of qualifying attorneys in the CDS legal system. However, I cannot support or participate in any hypothetical questioning of prospective judges in any legal system, RL or SL.

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Post by Ashcroft Burnham »

[quote="Beathan":2zww59k7]First, while it is true that black-letter law of a RL jurisdiction has no authority in this discussion as law, it certainly has persuasive and moral force. To me, this is especially true of judicial ethics. I intend to apply the standards of judicial ethics that are current in my community, but not because they are current in my community. I will apply them because I happen to agree with them as sound and solid ethical principles. [/quote:2zww59k7]

This makes perfect sense, but then makes it rather odd that you should have replied to my arguments on the principle of hypothetical questions,

[quote:2zww59k7]The problem here is that, from where I sit, it is black letter law that judicial applicants cannot ethically answer hypothetical questions. Ashcroft's response, both originally and in his new response, is to defend hypothetical questions as necessary for the application examination structure he is implementing. Again, this is not an answer. From the perspective of American judicial ethics, those questions cannot be answered, even if asking and answering them is a good idea from some abstract perspective.[/quote:2zww59k7]

It certainly seemed as if you were claiming that the fact that it is the "black latter law" in the US was conclusive of the issue, however strong my arguments were on the principles. If that is not what you were claiming , it is unclear what point that you were making in addressing the detailed points that I had made about why there is no problem with hypothetical questions in this context.

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Post by Beathan »

Aschcroft wrote [quote:mez8m8cf]Beathan wrote:
First, while it is true that black-letter law of a RL jurisdiction has no authority in this discussion as law, it certainly has persuasive and moral force. To me, this is especially true of judicial ethics. I intend to apply the standards of judicial ethics that are current in my community, but not because they are current in my community. I will apply them because I happen to agree with them as sound and solid ethical principles.

This makes perfect sense, but then makes it rather odd that you should have replied to my arguments on the principle of hypothetical questions,

Quote:
The problem here is that, from where I sit, it is black letter law that judicial applicants cannot ethically answer hypothetical questions. Ashcroft's response, both originally and in his new response, is to defend hypothetical questions as necessary for the application examination structure he is implementing. Again, this is not an answer. From the perspective of American judicial ethics, those questions cannot be answered, even if asking and answering them is a good idea from some abstract perspective.

It certainly seemed as if you were claiming that the fact that it is the "black latter law" in the US was conclusive of the issue, however strong my arguments were on the principles. If that is not what you were claiming , it is unclear what point that you were making in addressing the detailed points that I had made about why there is no problem with hypothetical questions in this context.[/quote:mez8m8cf]

Ah -- but I have provided by reasons:

1. Answering hypothetical questions necessary prejudges those issues, and does so without the limitations of context and factual guidance provided by a real case in controversy.

2. Judging must be, fundamentally and irreducibly, about people -- the people involved in the case. While law might be an academic field -- and one required for the training of lawyers and, by extension, judges -- the act of lawmaking, including judging, cannot be idealized or abstracted from the people involved without committing a fundamental moral error. Hypothetical questioning makes this error.

To these, I would like to add a third point, asking hypothetical questions allows judicial appointments based on what we call in America "litmus tests." That is, judges can be appointed based on how they indicate they will rule in certain cases, rather than based on their ability. This debases the appointment process, undermines judicial independence, and leads to appointment of less qualified, but politically pure, judges.

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Post by Claude Desmoulins »

Ash,

Throughout the development of the judiciary , you were adamant that no one from outside the judiciary have influence on how a judge might decide a case. Why isn't there just as much danger of such influence from within the judiciary?

What if, rather than evaluating a candidates reasoning abilities and general temperament, the judiciary uses the hypotheticals to only qualify applicants who see the law the same way as the present judge(s)? I believe that that would be equally damaging to judicial independence.

My question to you is, "What is it about the fitness for judicial service that can only be determined by the presentation of and response to hypothetical cases?" Surely there are other things that can address temperament, reasoning, and writing ability.

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Post by Ashcroft Burnham »

[quote="Beathan":164ig1uf]Ah -- but I have provided by reasons:

1. Answering hypothetical questions necessary prejudges those issues, and does so without the limitations of context and factual guidance provided by a real case in controversy.[/quote:164ig1uf]

I have addressed that issue above: the point that I was making was about your reference to US law on judicial ethics on the point, asking you how it was relevant.

[qutoe]2. Judging must be, fundamentally and irreducibly, about people -- the people involved in the case. While law might be an academic field -- and one required for the training of lawyers and, by extension, judges -- the act of lawmaking, including judging, cannot be idealized or abstracted from the people involved without committing a fundamental moral error. Hypothetical questioning makes this error.[/quote]

I have already explained that this does not make sense, because very often real life cases are made on the basis of limited information, as in cases decided on written representation or appeals. Many of the factors that you are citing (you mentioned assessing the credibility of evidence several times, for instance) are relevant only to judgments about facts, yet none of the hypothetical questions ask for sample judgments on disputesd questions of fact.

[quote:164ig1uf]To these, I would like to add a third point, asking hypothetical questions allows judicial appointments based on what we call in America "litmus tests." That is, judges can be appointed based on how they indicate they will rule in certain cases, rather than based on their ability. This debases the appointment process, undermines judicial independence, and leads to appointment of less qualified, but politically pure, judges.[/quote:164ig1uf]

That would only be a relevant criticism if (1) the hypothetical questions required a response on a point of substantial public controversy; and (2) the response was assessed on the basis of the similarity of the respondent's answer to the beliefs of the assessor. I have taken great pains in writing the questionairre to avoid questions on any matter of political controversy (instead, focussing on rather esoteric examples about the interaction between public and private law, for instance), and to choose questions the answers to which are either indisputably right or wrong (such as where the constitution provides a conclusive and unequivocal answer), or where I have no opinion either way as to what the answer should be.

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