To a Simpler Judiciary

Forum to discuss issues pertaining to the organisation and operations of the judiciary.

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Re: To a Simpler Judiciary

Post by Ashcroft Burnham »

[quote="Justice Soothsayer":3byefntx]I happen to believe that Ashcroft has over-thought and over-designed the judicial system[/quote:3byefntx]

What does "over-thought" and "over designed" mean? What possible [i:3byefntx]dis[/i:3byefntx]advantage of too much thought can there be except in time and effort to the thinker? What possible [i:3byefntx]dis[/i:3byefntx]advantage can too much design be except in time and effort to the designer?

[quote:3byefntx]but I have great respect for the work that he has done to get us to this point.[/quote:3byefntx]

I do not condier accepting a proposal on which much time has been spent, then, after it is passed, and just before it is implimented, because of a controversy over [i:3byefntx]qualification requirements[/i:3byefntx], seeking to demolish it, and with it the even greater amount of work that has been spent on procedures, in the least respectful.

[quote:3byefntx] With some significant changes, we will have a judicial system which will have the respect of all of our citizens, will be a model for the Metaverse, and of which we can all be justifiably proud.[/quote:3byefntx]

It will [i:3byefntx]not[/i:3byefntx] have the respect of all our citizens: it will certainly not have my respect, nor the respect of those who value judicial independence, nor the respect of those who believe that the one thing that is more important than anything else in a virtual world legal system is legal certainty, and the one area in which legal certainty is more important than any other is legal procedure.

[quote:3byefntx]shcroft is also a person of good will and great character who I hope will continue to serve in a judicial capacity in my proposed revision of the system, and who has devoted countless hours to this project.[/quote:3byefntx]

The product of most of which you want recklessly to throw away before it has even been tested. Do you really expect a person who has given so much of his free time to creating something so carefully and dilligently is going to stay around to do more work if his existing work is thrown away, not because it has truly been tested and failed, but because those who accepted it have simply changed their minds not two months after the original proposal was first accepted? I could quite easily have written the codes of procedure whilst the Judiciary Act was being debated, but I did not, knowing that (1) it would be a great deal of work; and (2) there was a possibility that they would not be needed, because the Act might not be passed. Once the Act was passed, I started work on them because I thought that I could be secure in the knowledge that they would at least be tested, even if the legislature ended up modifying them. Since then, I have spent literally [i:3byefntx]tens[/i:3byefntx] of hours drafting the code because I realise that a thorough code is the only way to avoid the sort of disarray and injustice that comes when people have conflicting expectations about how things will be handled. If all that work is thrown away, there is no way that I (or anybody else sane) will ever be able to trust that any such work done in the future will ever be put to use, rather than discarded in the clamour of incessant revision of the already decided.

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Post by Ashcroft Burnham »

[quote="Justice Soothsayer":1fkj0wzf]And the legislature said on November 18th by unanimous resolution that we were prepared to consider changing the method of judicial selection as early as December 2nd if no progress had been made.[/quote:1fkj0wzf]

It was most certainly [i:1fkj0wzf]not[/i:1fkj0wzf] unanimous: your own party member, Pelanor Eldrich, voted against it, and Moon Adamant was not even present.

Furthermore, the resolution did not stipulate that "progress" meant "completing the process". Progress [i:1fkj0wzf]was[/i:1fkj0wzf] made: I drafted the entire qualification requirements, procedures and questionnaires, and opened the process.

I know that [i:1fkj0wzf]you[/i:1fkj0wzf] wanted judges faster than it was likely to happen if done properly, but that most certainly does not mean that that was ever responsible, nor that that is what anyone else voted for.

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Post by Justice Soothsayer »

[quote="Ashcroft Burnham":2y48eb1g][quote="Justice Soothsayer":2y48eb1g]And the legislature said on November 18th by unanimous resolution that we were prepared to consider changing the method of judicial selection as early as December 2nd if no progress had been made.[/quote:2y48eb1g]

It was most certainly [i:2y48eb1g]not[/i:2y48eb1g] unanimous[/quote:2y48eb1g]

I stand corrected, indeed it was not unanimous.

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Post by Ashcroft Burnham »

[quote="Justice Soothsayer":p7vslfg7]What has changed since then is that I have seen firsthand the kind of judicial system you would have us live under, and I and many others are none too happy with it. You appointed yourself Chief Judge for life, when the better practice would have been to wait for further judges.[/quote:p7vslfg7]

You well know that this is a criticism totally without merit. As I have explained [i:p7vslfg7]reapeatedly[/i:p7vslfg7] now, I appointed myself Chief Judge before I had any idea that there was going to be more than one judge for the f0reseeable future. Did you not read my response to Claude in the "my thoughts about the judiciary" thread?

[quote:p7vslfg7] You asked for public comments about the qualification requirements, then made no changes in response to what I consider very valid criticisms. [/quote:p7vslfg7]

For the reasons that I gave in detail, I did not consider them valid. For the reasons that I have given in detail before, the determination of whether they are valid is rightly a matter for the judiciary. As I have explained repeatedly before, it makes no sense to change the process mid-stream (I asked for feedback on the [i:p7vslfg7]requirements[/i:p7vslfg7], not the questionnaire, for fear of telling people how to answer the questions if I answered any such feedback, or that such feedback itself would take away the fact of the answers being the candiates' own work). As I have stated repeatedly, the procedure will be reviewed if it does not produce enough candidates. As I have stated repeatedly, there are three people very interested in applying.

[quote:p7vslfg7] When those requirements generated no applications, you extended the deadline.[/quote:p7vslfg7]

As I always said that I would in the original post stating that the positions were open. One person had computer troubles and could not download the forms in time, and one person would have applied had he known about it earlier, and said that a week's extension should be enough. It would be reckless of me not to extend the deadline in those cirucmstances, especially as, since I extended the deadline, a third person has expressed an interest in applying.

[quote:p7vslfg7]And your forthcoming code you describe as a "massive" (or is it "mammoth"?) undertaking, meant to anticipate all possible scenarious.[/quote:p7vslfg7]

Do you seriously think that a system of legal procedure that [i:p7vslfg7]fails[/i:p7vslfg7] to anticipate reasonably forseeable eventualities is a system that could ever do real justice between people with wildly different expectations of what a judicial system involves?

[quote:p7vslfg7]I think your actions have given sufficient reason for reconsidering the benefits of lifetime tenure.[/quote:p7vslfg7]

Your actions have given more than sufficient reason to show just how readily that the legislature will undermine judicial independence given a chance.

[quote:p7vslfg7]Providing that judicial terms overlap those of at least two terms of the legislature will, in my view, accomplish the objective of assuring that cases are decided on their merits.[/quote:p7vslfg7]

How, when the legislature in the second term, wanting to influence what will happen in the next term (whether it is elected or not) would have just as much reason to choose pro-government judges (or anti-opposition party judges to make their opponents' lives difficult if they do well in the next election) as a system of single terms?

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Post by Ashcroft Burnham »

Incidentally, Justice, are [i:2heevny7]you[/i:2heevny7] going to write a "simple" code of procedure? Because I most certainly am not going to make a second one if you reject the one that I am drafting now [i:2heevny7]before you have even seen it[/i:2heevny7].

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Post by Beathan »

Ash wrote [quote:333wzwqv]Incidentally, Justice, are you going to write a "simple" code of procedure? Because I most certainly am not going to make a second one if you reject the one that I am drafting now before you have even seen it.[/quote:333wzwqv]

We should develop our procedures incrementally based on our experience of how thing happen or don't happen in this medium. SL is so different from RL that any code of procedure modelled, however loosely, on one from RL will be clunky and awkward at best and silly or harmful to the administration of justice at worst.

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Post by Ashcroft Burnham »

[quote="Beathan":31savbsf]We should develop our procedures incrementally based on our experience of how thing happen or don't happen in this medium. SL is so different from RL that any code of procedure modelled, however loosely, on one from RL will be clunky and awkward at best and silly or harmful to the administration of justice at worst.[/quote:31savbsf]

More unreasoned platitudes. You have not even [i:31savbsf]seen[/i:31savbsf] my draft code.

Do you [i:31savbsf]really[/i:31savbsf] think that it is possible to do justice if the [i:31savbsf]procedures[/i:31savbsf] are made up as we go along? The [i:31savbsf]whole point[/i:31savbsf] of having a new judiciary was to make sure that people knew where they stood as far as procedure is concerned.

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Post by Beathan »

Ash wrote [quote:1eezaua3]Do you really think that it is possible to do justice if the procedures are made up as we go along? The whole point of having a new judiciary was to make sure that people knew where they stood as far as procedure is concerned.[/quote:1eezaua3]

Well -- yes, within reason. I think that we can set out extremely basic rules and forms and then allow the parties and judge to fashion specific case procedures within that general framework. This experiment is occurring every day in arbitrations with fantastic results -- and the lessons learned have already begun to spill back into the legal system through amendments of the codes of procedures.

We don't need detail to start with. We need flexibility within general limits sufficient to define and preserve the process. We certainly can have that. The alternative is to constrain action unwisely and unnecessarily. Justice is blind, not bound.

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Post by Ashcroft Burnham »

[quote="Beathan]"Well -- yes, within reason. I think that we can set out extremely basic rules and forms and then allow the parties and judge to fashion specific case procedures within that general framework.[/quote]

What do "extremely basic" rules tell us about:

(1) who goes first in court;

(2) the burden and standard of proof;

(3) how documents are filed and served;

(4) how a party proves that the opposing party has been served if the opposing party does not turn up;

(5) how the court decides what issues require a trial of the facts and which do not;

(6) what happens to a party who fails to comply with a deadline;

(7) whether parties may make written or oral representations on any given topic;

(8) what one party can recover from another in terms of costs;

(9) what evidence is admissible;

(10) how a jury should be directed;

(11) what the time limit is for responding to originating process;

(12) what happens if a party responds slightly late to origiating process;

(13) what happens to the main action if a party appeals an interim decision;

(14) what happens if that appeal is frivolous and without merit and designed merely to delay the proceedings;

(15) the grounds on which an appeal court may allow an appeal;

(16) what one party must disclose to another before proceedings commence;

(17) what happens when a party fails to do that;

(18) how soon after judgment that a party must pay any sum of money ordered to be paid;

(19) what happens if a party pays late;

(20) what happens if a witness refuses to testify;

(21) whether a witness should swear an oath or similar before testifying, and, if so, in what terms that that should be;

(22) whether pleadings should be verified with a declaration of truth, and, if so, in what terms that should be;

(23) what happens if a party (or member of the public) misbheaves in court and disrupts court prceedings;

(24) whether parties have to address the court on consequential orders before or after judgment is rendered;

(25) whether juries decide only questions of pure fact, or whether juries decide questions of mixed fact and law;

(26) whether a judge may delegate her or his powers to somebody other than a judge, and, if so, which ones;

(27) if such powers are delegated, whether they may be appealed to a judge, and, if so, on what grounds;

(28) how hearings are scheduled, and what happens if a party wants to reschedule, and another party disagrees;

(29) whether there is any differnet way of starting an action in which there is no anticipated factual dispute;

(30) what happens when a party fails to respond at all to originating process;

(31) what objectsions to questioning in witnesses may be sustained in what circumstances;

(32) what the procedure for objecting is;

(33) who has the last word in a closing speech;

(34) what the judge can say to the jury about the facts in summing up;

(35) when, how and by whom a small, tehnical error in a judgment may be corrected;

(36) what the status of previous findings of fact by a court between the same parties in different proceedings are as regards subsequent proceedings;

(37) what the status of previous findings of fact by a court between the different parties in different proceedings are as regards subsequent proceedings;

(38) whether, and, if so, in what circumstances, parties may make applications to the court without notice to other parties;

(39) whether, and, if so, in what circumstances, if parties are allowed to make such applications, parties may make applications to vary or set aside orders or directions granted in such circumstances; and

(40) on what grounds, and at what juncutre, a party may challenge a prospective juror?

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Post by Beathan »

Ash --

No. Simple rules will provide for no more than provided in my proposal. Your list of "simple rules" actually includes things that are not found in all sets of RL court rules. Surely, simple rules must, at a minimum, be no more complex than RL procedural rules.

Also I note that many of your rules involve the added complexity of a jury. We should dispense with this complexity unless it becomes apparent that we cannot trust our judges. We are close, but not yet there. Even if we reach that point, I am skeptical that a polity of fewer than 100 people can support a jury justice system without severe disruption on the polity -- especially given time zones.

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Post by Ashcroft Burnham »

[quote="Beathan":l7ra4989]Ash --

No. Simple rules will provide for no more than provided in my proposal. Your list of "simple rules" actually includes things that are not found in all sets of RL court rules. Surely, simple rules must, at a minimum, be no more complex than RL procedural rules.[/quote:l7ra4989]

You are avoiding my question. If your "rules" don't deal with these situations, what happens when they arise?

[quote:l7ra4989]Also i note that many of your rules involve the added complexity of a jury. We should dispense with this complexity unless it becomes apparent that we cannot trust our judges. We are close, but not yet there.[/quote:l7ra4989]

So, not content with caring nothing for judicial independence, you also have no regard for the institution of trial by jury, and its important constitutional significance?

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Post by Diderot Mirabeau »

[quote="Ashcroft Burnham":ir04i1sj]What do "extremely basic" rules tell us about: (glimpse of a mammoth skeleton of code removed)[/quote:ir04i1sj]

They tell us that since no single individual can ever hope to predict in advance all the possible events and questions that may arise during the conduct of a court case and since there is an imminent risk of any work designed by a single individual that tries to address all possible questions in advance to be

(1) Delivered late
(2) Impossible for the average citizen to get an overview of
(3) To an undue degree influenced by one person's idiosyncratic views of how procedure should be implemented

.. it is better to start simple and implement a framework that bases its fairness and transparency on the institutional mechanisms of appeal, the accumulation of knowledge and precedence and the representation of diversity.

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Post by Ashcroft Burnham »

[quote="Diderot Mirabeau":3q6eetwr]They tell us that since no single individual can ever hope to predict in advance all the possible events and questions that may arise during the conduct of a court case[/quote:3q6eetwr]

These are not esoteric questions: some of them are absolutely fundamental, and most are not far off. The reality is that real-life procedural codes [i:3q6eetwr]do[/i:3q6eetwr] anticipate all these sorts of things, and necessarily so. Why on earth do you think that real-life procedureal codes mention these things if they are unnecessary or impossible to predict? These are [i:3q6eetwr]all[/i:3q6eetwr] easily predictable events, and ones to which, if a legal system cannot provide an answer, it is dangeroulsy incomplete.

[quote:3q6eetwr]and since there is an imminent risk of any work designed by a single individual that tries to address all possible questions in advance to be

(1) Delivered late[/quote:3q6eetwr]

Mine is nearly finished. It would have been done already were it not for the delays caused by me having to defend our judicial system from unjustified criticism here.

[quote:3q6eetwr](2) Impossible for the average citizen to get an overview[/quote:3q6eetwr]

It is impossible for an average citizen to get an overview of how [i:3q6eetwr]any[/i:3q6eetwr] system would answer the above questions. The difference is that, if there are no rules about them, it is impossible for anyone to have any idea of the answers in advance, whereas, if there are rules, those patient enough to read the rules, or who are prepared to instruct a lawyer, will know the answers to those questions.

[quote:3q6eetwr](3) To an undue degree influenced by one person's idiosyncratic views of how procedure should be implemented[/quote:3q6eetwr]

This is speculation, and wholly unfounded.

[quote:3q6eetwr].. it is better to start simple and implement a framework that bases its fairness and transparency on the institutional mechanisms of appeal and the representation of diversity.[/quote:3q6eetwr]

A system with few or no rules is not "simple": it is [i:3q6eetwr]more[/i:3q6eetwr] complex than a system with lots of rules because it is far more uncertain.

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Post by Beathan »

Ash wrote [quote:out81bwp]You are avoiding my question. If your "rules" don't deal with these situations, what happens when they arise? [/quote:out81bwp]

They will be dealt with as they arise through a process of consensus. Further, any judge who foresees them in any given case will address them at the outset, at the scheduling hearing. This works iRL. It should work in SL. This is how I do all my RL arbitrations -- and people keep coming back.

Ash wrote [quote:out81bwp]So, not content with caring nothing for judicial independence, you also have no regard for the institution of trial by jury, and its important constitutional significance?[/quote:out81bwp]

Well, yes. I thought that this was clear when I proposed my amendment to the old cosntitution with language that repealed juries. In RL my firm loves juries because we can get them to do things no judge would ever do. Like most judges I have spoken to, I think juries are suspect for this reason. Further, given the time zone issues that prevent citizens from attending important civic functions, I find the prospect of jury trials to be nightmarish. In fact, in many cases, I think in-person trials will be unworkable. I want to give us the flexibility to deal with these circumstances, which are unique to SL.

Without juries, in addition to not needing rules about juries, we could have extremely general rules on evidence or no rules on evidence. Most judges, when they hear inappropriate evidence, don't strike but rather state "I know the requirements of good evidence and will give the purported evidence the weight it deserves." Sometimes, this means that the "evidence" is weightless.

If my simple rules fail to anticipate a common problem, another simple rule can be added to address the problem (if the judges decide that a single prescribed solution, rather than a solution fashioned in light of the case, is advisable). Moreover, that rule will be fashioned in light of real experience of judges -- and will be better for that.

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Post by Ashcroft Burnham »

[quote="Beathan":5bhtd60v]They will be dealt with as they arise through a process of consensus.[/quote:5bhtd60v]

Consensus? Are you serious?There will be many occasions on which one answer favours one party, and another another. How on earth do you expect to get consensus in that case? And on many occasions, the points need to be decided well in advance: what evidence is admissible? Who goes first or last in speeches? What kinds of questions are allowed? What happens if a party misses a time limit? May a party apply for some things without notice (and one cannot possibly attempt to get a consensus on [i:5bhtd60v]that[/i:5bhtd60v] without prejudging the issue).

Do you really think that we ought to fail to learn the lessons that legal processes elsewhere in SL are repeatedly teaching us: that making the rules up as one goes along just does not work?

[quote:5bhtd60v]Further, any judge who foresees them in any given case will address them at the outset, at the scheduling hearing. This works iRL. It should work in SL. This is how I do all my RL arbitrations -- and people keep coming back.[/quote:5bhtd60v]

Your arbitrations are only meaningful against the background of formal legal processes, with fully codified procedures, that can enforce your decisions, and to which your decisions can be appealed.

[quote:5bhtd60v]Well, yes. I thought that this was clear when I proposed my amendment to the old cosntitution with language that repealed juries. In RL my firm loves juries because we can get them to do things no judge would ever do. Like most judges I have spoken to, I think juries are suspect for this reason.[/quote:5bhtd60v]

You have evidently been speaking to the wrong judges: that is exaclty what juries are for.

[quote:5bhtd60v]Further, given the time zone issues that prevent citizens from attending important civic functions, I find the prospect of jury trials to be nightmarish. In fact, in many cases, I think in-person trials will be unworkable. I want to give us the flexibility to deal with these circumstances, which are unique to SL.[/quote:5bhtd60v]

So you don't even believe in the importance of the oral hearing, with the ability to test quickness of response to awkward questions in cross-examination, or the ability to for a judge to ask questions - and an advocate to answer them - during a hearing? What kind of a closed-door justice system do you imagine here?

[quote:5bhtd60v]Without juries, in addition to not needing rules about juries, we could have extremely general rules on evidence or no rules on evidence.[/quote:5bhtd60v]

[i:5bhtd60v]No[/i:5bhtd60v] rules on evidence? What, not even legal professional privilege? Not even the burden and standard of proof? Presumptions? Judicial notice? The rule that evidence must be relevant? What about evidence whose use would be forbidden by the LL Community Standards unless consent was given; what of that? What if a party refuses to consent? What sort of a kangaroo court is it that has [i:5bhtd60v]no[/i:5bhtd60v] rules of evidence?

[quote:5bhtd60v] Most judges, when they hear inappropriate evidence, don't strike but rather state "I know the requirements of good evidence and will give the purported evidence the weight it deserves." Sometimes, this means that the "evidence" is weightless.[/quote:5bhtd60v]

I agree that rules of admissibility should not exclude evidence merely because little or no weight should be attached to it. That does not, however, address the issues described above.

[quote:5bhtd60v]If my simple rules fail to anticipate a common problem, another simple rule can be added to address the problem (if the judges decide that a single prescribed solution, rather than a solution fashioned in light of the case, is advisable).[/quote:5bhtd60v]

Do you really think that justice can be done if there are differnet procedural rules in each case? A party would be entitled to complain, "but the procedure that you adopted in the case of Jones would have been more favourable to me than the procedure that you're adopting in my case - how is that fair?".

[quote:5bhtd60v] Moreover, that rule will be fashioned in light of real experience of judges -- and will be better for that.[/quote:5bhtd60v]

The rules that I have provided for in the code that I am writing [i:5bhtd60v]are[/i:5bhtd60v] fashioned in the light of the real experience of judges - real judges, in real-life legal systems, over hundreds of years. If our judges have different experiences, we can adjust the rules accordingly. It is utterly insane to start with no rules, however.

So, to surmise, your answer to each of my forty questions is "I have no idea - we'll make it up as we go along", is it?

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