To a Simpler Judiciary

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Beathan
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Post by Beathan »

Ash asks me if I am serious about consensus at the start of the case being a possible basis for procedures used in the case. I am. I achieve such consensus in most of my arbitrations. In most of these cases, the consensus is materially different from, rather than exactly tracking, the rules of civil procedure in place in my jurisdiction. I see no reason why this process, which works iRL, will not work here.

Further, my proposal handles the case of failure to participate, late participation, or failure to achieve consensus. To me, default and appeals are the only mechanisms we need.

Ash then claims that my arbitrations are only meaningful against a real process that allows for enforcement and appeals. Well, actually, in my jurisdiction, arbitration decisions are not appeallable. I personally have a problem with that being the general rule, but no problem with it if the parties agree. I do agree that enforcement is required -- but I see no special benefits in this regard from Ash's proposal over mine. The enforcement mechanism will be the same. In fact, by proceeding by consensus when possible, enforcement of decisions made under my system will be easier.

Ash then accused me of not believing in the importance of oral hearings. Far from it. I believe that oral hearings are extremely important. I just don't think that, given the unique features of SL, in person hearings will be possible in all cases. They should occur where possible -- but surely we should not halt the administration of justice in cases in which in person hearings are impossible, nor should we deeply prejudice one or both parties by setting the hearing at horrible times given their RL timezone.

As for rules of evidence, presumption, privilege, etc. -- these were all worked out over time from RL experience, and are still being so worked out. At my arbitrations, I tend to relax the rules of evidence from the standard court rules unless a party objects to the relaxation. Most parties prefer the more relaxed rules. I think that rules of evidence, like most things, can be appropriately worked out on a case-by-case basis with consensus of the parties. When disagreements occur, the judge can impose his own rules. In my experience, that is what happens anyway -- even when there are detailed statements of the rules. Judges often commit intentional error by ruling against the side they think is winning because such error is most likely to be considered "harmless" on appeal. Further, I have yet to meet a piece of "evidence" -- no matter how lousy -- that could not be appropriately dealt with through the mechanism of evidentiary weight rather than the mechanism of admissibility.

Secrets and privilege might be different. To that, I think that every avatar should have the right to stay silent on a point -- although the judge should have the right to find that silence meaningful. This is analogous to the way the exercise of the right of a person not to incriminate himself is handled in civil (but not criminal) trials in the U.S.

The problem with fashioning a system based on RL justice systems is that this is not RL, this is SL. SL involves many unique problems that don't come up when all the parties are located in Greenwich Mean Time, speak English, share cultural understandings and expectations, etc. In fact, no nation on earth has ever had to deal with all these problems, while at the same time having fewer than 100 citizens. Even when the sun never set on the British Empire, it certainly set on individual litigants, judges and courthouses. Fortunately, there was talent on the spot, in the time zone, to administer justice to parties who were also present on the spot.

Our problems here are both more simple than and different from RL problems. We need specially crafted solutions to these problems. We need real imagination of a kind that has been lacking in the Judiciary Act and its implementation, but that is present now through Justice's proposal.

I can already hear the criticism that this description violates the rule of law, but I have yet to see an analysis of the rule of law explaining why this is so. We have equality before the law. We have substantive consistency in law. What we do not have is a one-size-fits-all imposed procedure, but so what? Why do we want any such straight-jacket in the first place?

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Post by Justice Soothsayer »

[quote="Beathan":wq4xbqu6]Even when the sun never set on the British Empire, it certainly set on individual litigants, judges and courthouses. Fortunately, there was talent on the spot, in the time zone, to administer justice to parties who were also present on the spot. Our problems here are both more simple than and different from RL problems. [/quote:wq4xbqu6]

For instance, here the sun sets every four hours!

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Post by Beathan »

Of the SL sun, Justice writes [quote:37pnut0l]For instance, here the sun sets every four hours![/quote:37pnut0l]

Yes, but we can make it rise again at will. Isn't Second Life grand? The problems are different, but the solutions are simpler.

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Ashcroft Burnham
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Post by Ashcroft Burnham »

Beathan, do you seriously think that your arbitration cases, in which, in every instance, the parties, who are invariably arm's length commercial parties, have entered into agreements in advance containing an arbitration clause (no doubt because they know that doing so is far cheaper, and far more in their commercial interstss), are a representative cross-section of all the cases that a judical system has to deal with? Do you really think that parties in a neighbour dispute case, or a criminal case, would ever be likely to [i:25kfbmee]agree[/i:25kfbmee] on rules of procedure?

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Post by Justice Soothsayer »

[quote="Ashcroft Burnham":3u91lh8n]Beathan, do you seriously think that your arbitration cases, in which, in every instance, the parties, who are invariably arm's length commercial parties, have entered into agreements in advance containing an arbitration clause (no doubt because they know that doing so is far cheaper, and far more in their commercial interstss), are a representative cross-section of all the cases that a judical system has to deal with? Do you really think that parties in a neighbour dispute case, or a criminal case, would ever be likely to [i:3u91lh8n]agree[/i:3u91lh8n] on rules of procedure?[/quote:3u91lh8n]

While contracts do frequently contain arbitration clauses (bought a car inthe US lately?), arbitration is common in many other kinds of cases, though I haven't seen it used in criminal cases. Just yesterday I participated in the local bar association's "settlement week" and dealt with an automobile accident case, a dispute among former business partners, and a claim against a government agency. Arbitration is also common in domestic relations cases, and typically they involve people who can't agree on ANYTHING. Yet the process is usually quite informal, with relaxed (or no) rules of evidence as Beathan suggests.

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Post by Ashcroft Burnham »

[quote="Justice Soothsayer":2w53bqo4]While contracts do frequently contain arbitration clauses (bought a car inthe US lately?), arbitration is common in many other kinds of cases, though I haven't seen it used in criminal cases. Just yesterday I participated in the local bar association's "settlement week" and dealt with an automobile accident case, a dispute among former business partners, and a claim against a government agency. Arbitration is also common in domestic relations cases, and typically they involve people who can't agree on ANYTHING. Yet the process is usually quite informal, with relaxed (or no) rules of evidence as Beathan suggests.[/quote:2w53bqo4]

Nonetheless, these are still parties who see it as in their interest to agree in advance to let other people decide the rules for them. It costing less is a very strong incentive (and no doubt why, in the US, a country with far less government financial assistance for access to the legal profession than the UK, arbitration clauses pop up in simple things like car sales). Without the financial motive, it would not work, and it certainly could not work in criminal cases. We do not have the cost problem of real-life here and may well never do. We should not act on the assumption that we will have that problem. In any event, do you really think that the informalities of arbitration could genuinely replace an entire legal system? Arbitration, of course, is only binding because it is enforcable against a full-scale legal system.

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Post by Gxeremio Dimsum »

[quote="Ashcroft Burnham":2a5wnoq4]We do not have the cost problem of real-life here and may well never do. We should not act on the assumption that we will have that problem.[/quote:2a5wnoq4]

I am glad you have raised the point about cost. It has become increasingly clear in the last week that you intend the CDS' system to be one consisting of professional judges AND professional lawyers. Instead of being able to defend oneself in a simple, relatively informal setting, lawyers will need to be hired (you proudly announce that they're attracted to your system so they can set up shop) and paid for - by whom? The citizens? The CDS budget? Have the financial costs of this system been considered up to this point at all?

[quote:2a5wnoq4] In any event, do you really think that the informalities of arbitration could genuinely replace an entire legal system? Arbitration, of course, is only binding because it is enforcable against a full-scale legal system.[/quote:2a5wnoq4]

It is binding not because of the full-scale judiciary, but because of the system of appeals and an active executive branch that can enforce those agreements. From my perspective as a regular US citizen, many people choose arbitration specifically to avoid the full-scale legal system.

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Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":1tu8y2lg]I am glad you have raised the point about cost. It has become increasingly clear in the last week that you intend the CDS' system to be one consisting of professional judges AND professional lawyers. Instead of being able to defend oneself in a simple, relatively informal setting, lawyers will need to be hired (you proudly announce that they're attracted to your system so they can set up shop) and paid for - by whom? The citizens? The CDS budget? Have the financial costs of this system been considered up to this point at all?[/quote:1tu8y2lg]

As I have written many times before, one of the points of the judiciary here was to help to promote the services sector. Legal fees would, of course, be paid by those who hired lawyers, but those fees would have to be paid by the unsuccessful pary in the case. That is the way of ensuring justice. Read what I have written in the "rule of law" thread as to why lawyers are important however ostensibly "simple" the rules.

[quote:1tu8y2lg]It is binding not because of the full-scale judiciary, but because of the system of appeals and an active executive branch that can enforce those agreements. From my perspective as a regular US citizen, many people choose arbitration specifically to avoid the full-scale legal system.[/quote:1tu8y2lg]

I notice that you have pointedly failed to answer the question about whether you seriously believe that it could replace a full-scale judiciary. And you evidently have no real understanding of arbitration proceedings at all: one appeals [i:1tu8y2lg]to[/i:1tu8y2lg] a court, and its decisions are enforced [i:1tu8y2lg]by[/i:1tu8y2lg] a court.

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Post by Gxeremio Dimsum »

[quote="Ashcroft Burnham":nemuam89]I notice that you have pointedly failed to answer the question about whether you seriously believe that it could replace a full-scale judiciary. And you evidently have no real understanding of arbitration proceedings at all: one appeals [i:nemuam89]to[/i:nemuam89] a court, and its decisions are enforced [i:nemuam89]by[/i:nemuam89] a court.[/quote:nemuam89]

I failed to answer nothing. I said not only could it, but it is preferable. Having an appeals system, which of course would be a court (but thanks for being a pedantic and condescending prick) does not entail having a list of procedures longer than the Constitution, the UDHR, and the Ten Commandments combined. The enforcement may be decided by the appeals court but it is certainly not carried out (enforced) by that court - that remains with the executive branch in every country I know of. Or does your work as a barrister also entail going to people's homes to arrest them or putting holds on their bank accounts from your computer?

EDIT: Please read:
(but thanks for giving a pedantic and condescending reply).

I do believe the warning Diderot gave below is uneven since Ashcroft regularly accuses people in the second person in many, many posts of being ignorant, obstinate, and/or evasive (as above). An accusation like mine above (of vanity, though in strong language) does not seem worse than the accusations he uses on a regular basis. However, my conduct in this situation recognizably falls outside the expected boundaries of forum posting. I do wonder - in our current situation would I still appeal to the Dean of the SC? How about in the absence of an SC?

Last edited by Gxeremio Dimsum on Tue Dec 05, 2006 8:39 am, edited 3 times in total.
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Post by Diderot Mirabeau »

[quote="Gxeremio Dimsum":1me6qy9v]Having an appeals system, which of course would be a court (but thanks for being a pedantic and condescending prick) does not entail having a list of procedures longer than the Constitution, the UDHR, and the Ten Commandments combined.[/quote:1me6qy9v]

I am sorry but as a moderator I am going to have to issue a warning to you Gxeremio to stay within the discourse of civilised language and to take issue with arguments rather than with the originator of these arguments in your contributions.

The warning is issued with reference to articles 3.5 and 6.5 of the Forum Moderation Guidelines and you may lodge an appeal against the decision in accordance with articles 7.1 - 7.2 to the Dean of the Scientific Council if you consider this decision to be unfair.

You can read in further detail about the forum moderation guidelines [url=http://forums.neufreistadt.info/viewtop ... 3:1me6qy9v]here[/url:1me6qy9v].

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Post by Beathan »

Ash wrote [quote:24x92gft]Beathan, do you seriously think that your arbitration cases, in which, in every instance, the parties, who are invariably arm's length commercial parties, have entered into agreements in advance containing an arbitration clause (no doubt because they know that doing so is far cheaper, and far more in their commercial interstss), are a representative cross-section of all the cases that a judical system has to deal with? Do you really think that parties in a neighbour dispute case, or a criminal case, would ever be likely to agree on rules of procedure?[/quote:24x92gft]

It is strange that Ash can describe my arbitration practice without knowing about it. More than half of my arbitration practice involves personal injury cases -- mostly car accidents -- with parties who are having what might be their first involvement with the justice system. Other cases involve sophisticated commercial matters between parties that have gone through the ringer multiple times. Other cases have involved disputes between neighbors which have escalated out of control. It is true that none of them involve criminal cases, but I am confident that my system would work there to. In fact, our criminal courts alreadyhave a similar process because the generally applicable procedure under the "speedy trial rules" are almost always opted out of, giving the parties an opportunity to forge a new process in light of the case. My approach works across this whole range of cases exactly because it is flexible.

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Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":2oanjbz4](but thanks for being a pedantic and condescending prick)[/quote:2oanjbz4]

You have shown your true character.

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Post by Ashcroft Burnham »

[quote="Beathan":25me93h2] Other cases have involved disputes between neighbors which have escalated out of control. It is true that none of them involve criminal cases, but I am confident that my system would work there to[/quote:25me93h2]

Really? What experience do you have of criminal work? I usually undertake three or four criminal trials every [i:25me93h2]week[/i:25me93h2].

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Post by Publius Crabgrass »

[quote="Ashcroft Burnham":2bs8af6s]Legal fees would, of course, be paid by those who hired lawyers, but those fees would have to be paid by the unsuccessful pary in the case. That is the way of ensuring justice. [/quote:2bs8af6s]

This is a most interesting part of Ashcroft's post, and I hope it is not lost in the midst of this kerfuffle. Requiring the losing party in a case to pay the winning party's attorneys fees is known as the "English Rule" http://en.wikipedia.org/wiki/English_rule while the "American rule" is that each party usually pays its own costs, with the exception of specific categories of cases where a statute or contract assigns fees otherwise.

Ashcroft takes it for granted ("of course") that the "English rule" is [i:2bs8af6s]"the" [/i:2bs8af6s]way of ensuring justice. Advocates of the "American rule" disagree, arguing that "loser pays" rules unfairly deter the less wealthy from challenging the more wealthy in court. Quite frankly, I haven't come to a conclusion either way, but I certainly don't want this important question of procedure -- with a very substantive impact -- to be decided by one person drafting the rules.

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Post by Publius Crabgrass »

[quote="Publius Crabgrass":1v9u4lu2]Ashcroft takes it for granted ("of course") that the "English rule" is [i:1v9u4lu2]"the" [/i:1v9u4lu2]way of ensuring justice. Advocates of the "American rule" disagree, arguing that "loser pays" rules unfairly deter the less wealthy from challenging the more wealthy in court. Quite frankly, I haven't come to a conclusion either way, but I certainly don't want this important question of procedure -- with a very substantive impact -- to be decided by one person drafting the rules.[/quote:1v9u4lu2]

In the interest of fairness, I should add that advocates of the "English rule" cite American litigiousness, and argue that the English rule discourages frivolous litigation. Again, there are two sides to this coin, but I think the coin should be flipped by our elected representatives and not by the unelected judiciary.

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