Comments on the Code of Procedure

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Beathan
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Post by Beathan »

Dexter --

I am a lawyer. Publius is also a lawyer. Being a lawyer does not disqualify a person from this discussion by any means.

That said, as professional lawyers, we are used to dealing with rather complicated Rules of Proocedure. If we have litigation practices, we will often see pro se parties struggling with those rules -- drowning in them, to an endless litany of the judges saying "Well, you didn't do this procedure right. I can't give you legal advice, such as telling you how to do it. Therefore, I again recommend that you hire an attorney."

One of our greatest desires in developing a CDS legal systems is that we would avoid this problem. We want to avoid this problems for several reasons. First, as Dim Sum points out, in the real human cost of every currently conceivable case for that court to handle, the stakes will be less than the stakes in a RL small claims matter (no more than between $1000 and $10000 US depending on jurisdiction) and less than a RL WA State mandatory arbitration matter (less than $50,000 US). This means that we should have a procedure that has a cost that matches the harm to be avoided.

Second, there is a good in simplicity -- and in the openness and inclusion of nonlawyers that we gain from that simplicity. We really, really don't want to force people to hire lawyers to use our system. If our system is so complex that an ordinary person needs a lawyer to navigate it, then no one will use it if there is a simpler alternative. We don't want to build a system that ceases to matter as soon as some competition comes along. Further, as people committed to democratic values -- such as equality and openness -- we recognize that these values are better served by a simple system because such a system is inherently more understandable and accessible to more people, and thus serves an egalitarian purpose.

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Post by Ashcroft Burnham »

As I have written several times before now, the argument "we need a 'simple' code so that people don't have to hire lawyers" fails for two distinct reasons. Nobody has ever in this debate attempted to address those reasons. I summarise them below:

1. [b:1396rwzi]Unavoidable complexity[/b:1396rwzi] The practice of law is mind-bogglingly complex whether the sources of law are apparently simple or not. Something that is short, basic and vague, and that contains little detial, does not make the practice of law any simpler than something that is long, detailed and precice, and, in fact, makes it less simple, less predictable, and less easy for litigants in person (who do not share the unwritten assumptions that judges and lawyers are forced to make in the absence of written rules), who are forced to guess how things work. It is of note that not a single real-life legal system of any civilised nation is anything other than vastly complex.

2. [b:1396rwzi]Advocacy[/b:1396rwzi] Understanding "complex" procedure is only a small part of why most people hire a lawyer. Indeed, in real-world jurisdictions, precise procedural rules grew up in consequence of the emergence of a legal profession, rather than the other way around. The main reason to hire a lawyer is because the task of arguing a case in court, understanding rule-situation interactions, and predicting the likely outcome of the formal application of rules to human behaviour, is a highly skilled and specialised practice, one which is necessary to do have the best chance in all but the most blindingly obvious of cases (and sometimes even in those). Whether the procedures are fully detailed or not, anyone who hires a lawyer will be at a significant advantage over anybody who does not hire a lawyer.

3. [b:1396rwzi]Scaling[/b:1396rwzi] The complexity of a legal system does not scale with the number of people involved in it, as some of those who have posted here about not needing detailed procedural rules "in a small community like ours" seem to think. Complexity scales with function, not with the number of users.

People also seem to think that the emergence of a legal profession in our community is something bad, or that somehow threatens democratic values. Nothing could be further from the truth. Not only has Professor David Post, a leading academic on law in virtual worlds, for a long time predicted the rise of law (and legal professionals) as an inevitable and desirable consequence of the existence of such worlds, but part of the function of providing for a services industry that has the potential to benefit our economy. In particular:

1. [b:1396rwzi]Encouraging a thriving professional community[/b:1396rwzi] At least 10% of our current population are here partly because of our judiciary, many of whom are lawyers who have come here to practice. They are unlikely to be deterred from doing so merely because the procedures are now much vaguer, and give them far more room for argument in individual cases. In any event, our nation is enriched, not impoverished, by having a thriving community of intellectual professionals. Why should we encourage artists but discourage lawyers?

2. [b:1396rwzi]Right to counsel[/b:1396rwzi] Many human rights treaties, including the Universal Declaration on Human Rights to which the CDS subscribes, provide for the right to legal advice as one of the fundamental human rights. The UDHR is not specific to any one particular nation, but is written with the entire world in mind. The reason for that is that, for people who need to use the legal system, having professional advice is [i:1396rwzi]universally[/i:1396rwzi] important - for the reasons outlined above.

3. [b:1396rwzi]Costs issues misunderstood[/b:1396rwzi] SecondLife is a money economy, and proud of it. People buy and sell everything from virtual clothes to houses to furniture, and most of all, of course, land. The economy works on the principle that human time is worth far less in SecondLife than in the first life, for the most part, on the basis that everyone else's time is also available for much less. It is a highly deflated economy. Graphic designers undertake, in thier spare time, 3d modelling work at a tiny fraction of what they would charge a client to do something similar in the first life; progrmmers write and sell scripts for the price of a few sandwiches and a cup of coffee. Many people even work for free. People work here to participate in a unique and exciting world, not, with a few exceptions, with any realistic hope of being able to make enough money to be worth anything much in real-life. Furthermore, people will only pay what something is worth, and people will only charge what people are prepared to pay: in a dispute over a L$2,000 transaction, nobody would think it worth hiring a lawyer for L$100,000, and so no lawyer who charged that amount would ever get any clients. There also seems to be an underlying assumption, which is entirely unfounded by any actual evidence, that the lawyers that we have now, and those whom we might have in the future, will be here primarily to make money. That is contrary to all the evidence so far: I have put hundreds of hours of work into this project without remuneration, we have three applicants for judicial office who have completed detailed questionnaires to apply to qualify to be a judge with little hope of reward, and if one speaks to the pepople who are here, one will find that they have come to participate in a fascinating experiment in virtual law and government, not to make money (the prospect of which, at least in any significant amount, is, for the foreseeable future, very slim indeed; lawyers are likely to be able to earn no more than would provide for a comfortable SecondLife, but not enough to be worth converting back into real money). The fears about the cost of hiring a lawyer are, therefore, quite unfounded.

4. [b:1396rwzi]Lawyers help the system to work more efficiently[/b:1396rwzi] People with a thorough understanding of law, both in theory and in practice, and with the skills of a good advocate, go a very long way towards the efficient running of a justice system. Courts dread litigants in person, not, for the most part, because they are prone to make technical, procedural errors (as some have incorrectly suggested; litigants in person are often afforded a wide latitude on such things), but because litigants in person often (but not always) have a poor grasp of the [i:1396rwzi]substantive[/i:1396rwzi] law, and often come to court to air general grievences instead of focussing on the issues that are in dispute, leading to cases being vastly prolonged whilst irrelevant matters are endlessly explored. This is not just a function of people not understanding the law or having the skills of an advocate, although that is an important part of it: litigants in person lack the necessary detachment to see their case objectively and make rational decisions about it. That is why it is often said that, just like doctors make the worst patients, lawyers make the worst clients.

5. [b:1396rwzi]There is nothing undemocratic about a legal profession[/b:1396rwzi] Given that law, by its very nature, makes the development of a legal profession inevitable and desirable, and makes it such that, whatever the system of law, and however "simple" the procedures, anybody who is legally represented has a massive advantage over anybody who is not, it is bizarre that some are arguing that there is something anti-democratic about having a legal profession, especially since every single democracy in the world has one (including, now, the CDS). Democracy is not about citizens being directly involved in every detail of state administration (there is nothing "undemocratic", for instance, in not having all citizens directly involved in the process of accounting: is the fact that we have a professional (or, at least, semi-professional) [i:1396rwzi]accountant[/i:1396rwzi] in the CDS an undemocratic thing?): it is about providing a popular check on ultimate legislative and executive power to prevent dangerous abuses of power. Nothing in the least about that conceivably contradicts the idea that a healthy profession grows up around offering specialist advice and representation to those who need to use a legal system, which is a daunting prospect for anyone not acquainted with it, no matter how "simple" the procedures.

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Post by Flyingroc Chung »

[quote="Ashcroft Burnham":1vt9xh1b]
1. [b:1vt9xh1b]Unavoidable complexity[/b:1vt9xh1b] The practice of law is mind-bogglingly complex whether the sources of law are apparently simple or not. Something that is short, basic and vague, and that contains little detial, does not make the practice of law any simpler than something that is long, detailed and precice, and, in fact, makes it less simple, less predictable, and less easy for litigants in person (who do not share the unwritten assumptions that judges and lawyers are forced to make in the absence of written rules), who are forced to guess how things work. It is of note that not a single real-life legal system of any civilised nation is anything other than vastly complex.
[/quote:1vt9xh1b]

"Something has never been done" does not imply "something cannot be done." It troubles me that we should start with the assumption that legal systems *have* to be complex.

Maybe we should start thinking this instead: all the legal systems in the world are mind-bogglingly complex; but SL is a brave new world! Maybe *this* time we can create something that is simple rather than complex, understandable, rather than mind-boggling. Here is an opportunity to create something the world has never seen.

I think one of the founding ideals of CDS (nee Neualtenburg) was not just to create a government, but to create a *different* one; something *better* than what we have outside of Second Life. Thus we have this system where we've tried many different things, we can argue that some ideas have mostly worked (the way we count votes), some ideas have mostly failed (the guild, imho, and I'm sure some would say the SC) -- but at least we tried.

One of the things I found difficult with the procedures was how it seems to slavishly try to apply RL procedures to SL (down to robes, standing up, bowing, etc -- btw, how does one design a robe for a dragon, or a voltron avie?).

SL is a new frontier! If there were a place to try something new, this is *it*; Why does the law have to be inherently complex? Can we use what technological wonders we have at our disposal to make things simpler? Even if we eventually find out that even in the context of SL, legal systems cannot be made simple, shouldnt we *try*?

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Post by Ashcroft Burnham »

Flyingroc, I certainly agree that we are pioneers and should be endeavouring to do things better than in real-life. However, my argument about legal complexity is not founded primarily on the proposition that all real-life legal systems are massively complex: that is evidence that I provide for the underlying principle. That piece of empirical evidence very strongly suggests, but does not certainly entail, that legal systems are unavoidably complex. The underlying principle that [i:h9nihxi6]does[/i:h9nihxi6] entail that all legal systems are necessarily unavoidably complex is the principle that applying any rule to govern something that is mind-bogglingly complicated will itself be even more mind-bogglingly complicated. Human behaviour is the mind-bogglingly complicated thing to which law, by its nature, seeks to apply rules.

In my [url=http://forums.neufreistadt.info/viewtop ... 5:h9nihxi6]earlier discussions[/url:h9nihxi6] on the inherent complexity of law from before the Judiciary Act was passed, I gave the following example of that mind-boggling complexity which I reproduce below:

Suppose a "simple" commercial code (that purported to be a comprehensive statement of the law) were to state:

[quote:h9nihxi6]1. When people agree on something, they shall be bound by their promises.

2. Anybody who breaks those promises shall be liable to pay compensation to the people to whom the promises were made.[/quote:h9nihxi6]

Those two sentences do indeed, broadly, set out the most fundamental principles of real-life contract law. Would it not be better, many would ask, to have that rather than the books of thousands of pages devoted to the subject with which real-life law libraries are stocked that provide only an overview of the subject?

As ever, the rules appear simpler until the complexities of reality inevitably supravene. What happens when people agree not to be bound by their promises? How do we assess how much compensation should be paid? Should compensation be payable for losses that were not foreseeable consequences of breaches of the contracts? What about where one person promises on behalf of another? Without that person's consent? With that person's consent, but acting slightly otuside the scope of it? Does it make a difference if the person on behalf of whom the other person makes a promise tells the first person that the agent has authority to make such promises, but tells the agent that he or she doesn't have that authority? Is an agreement to enter into an agreement in the future enforceable? What if people believe that they are agreeing about the same thing, but are talking at cross purposes - when they each come to perform the promises according to their understandings, is either or both of them entitled to compensation? What about where the subject-matter of the agreement is destroyed, unbeknownst to the parties, shortly before the agreement was entered into? What if it was not destroyed, but significantly changed? Moderately changed? Slightly changed? What if one of the parties was responsible for the change? What if one of the parties knew that there might be such a change, but didn't tell the other party? What if the agreement is in writing but the parties to the agreement agree verbally terms that aren't in the written agreement? What if a party to an agreement promises not to enforce a promise? Does it make any difference whether the other party relies on that promise or not? What if one of the parties is genuinely mistaken about the subject-matter of the agreement? What about both parties? Can parties agree that any disputes about the agreement shall be resolved in a particular way? Can parties agree to alienate their constitutional rights? What about rights acquired under statute? What if the promises are informal - do they still count? "I promise I'll be online at 2.00pm and take you on a tour of Neufriestadt" - enforcable? Does it make a difference if the other person promised to pay? Are promises enforceable where one side of the agreement does far better out of it than the other? What about a written agreement that contains contradicting terms - which, if any, are enforceable? What about if parties agree to do something illegal - is that enforceable? What about a big agreement that has a small part where parties agree to do something illegal - is any of it enforceable? What if a person deliberately breaks a promise knowing that the money that he or she would make by doing so would be greater than the loss sustained by the other party - should he or she be allowed to pay just the loss to the other party, or should the law act so as to discourage people from breaking their agreements in the abstract?

That is just a small slice of the problems that the real-world law of contract has to solve, and problems that no less occur in our law of contract. In the example of the oversimplified code above, people faced with any of those problems would have no idea what the law meant for them. The decision that they would have to make about what to do, therefore, would have to be very complex indeed, taking into account lots of different contingencies about what the law might be. That would apply to not only to people faced with the situations in question, but who anticipate the possibility of some or all of those problems, and want to know what to do to plan in advance for their potential actualisation. How should somebody react if somebody else offers to enter into an agreement that contains a small element of illegality? How should somebody react when a person offers to promise to alienate her or his constitutional right(s)? How should a person react when presented with an opportunity to make far more money than he or she would under a contract, but that would mean breaking the contract, albeit the losses incurred by the other party thereto being less than the total amount that the first party would gain, meaning that, if compensation were assessed purely on the basis of loss, it would still be worthwhile for the first party to break the agreement?

Also, those legal institutions applying the law are faced with equally difficult questions, and the even harder question of how to decide the answers to those questions. What if those questions have already come up in a previous case, and the court has decided the outcome - should not a later court decide the case in the same way? What if the current case is slightly different? How is it decided what differences are relevant and what aren't? Does it matter if the other case was a long time ago?

Not only are there a multitude of "what" questions, but each answer to those generates a "why" question. If the answers to all the "why" questions are not wholly consistent with each other, then there is something terribly wrong with the law.

As I have said before, because we simply do not have the resources to draw up comprehensive codes of law in advance, we have a common law system, whereby rules are created by precedent-setting cases, but can be 0ver-ruled by the legislature, providing that the legislature's intervention is in the nature of general rules applying to all, rather than interference in individual cases. We cannot answer all the questions in advance, but at least we can answer the question of how we go about answering the other questions. We cannot simply leave structure and procedure to be developed by judicial precedent from scratch, since judicial precedent will not get the chance to develop if there is not already a fixed and clear structure within which it can do so. That structure, just like the substantive law that it is there to interpret and enforce, is inherently complex, and a system that answers the complex questions before they arise is a simpler system in practice than one that leaves those qustions unanswered. Those questions inherently arise out of the subject-matter of the law: they do not go away if people do not think about them.

That is why real-world legal systems are invariably highly complex (if complexity were merely optional, one would expect that some real-world legal systems would be complex, and others not), and that is why our legal system needs to be complex to an extent (although a lesser extent than real-world law in relation to many things, because there are fewer subject-matters: we cannot have a law of personal injury in SecondLife, for example).

Nonetheless, advocating simplicity and clarity in law is not a wholly pointless exercise: although there is an irreducible minimum complexity that law on any given topic has to have in order to be workable (that minimum being often quite high), it is certainly possible to have law that is more complex than it need be. A good real-life example of that is the law of trusts, whose historical creation (through the unnecessarily complex old English system, abolished in 1873, of having two separate types of courts (the courts of Chancery and the common-law courts) for the same jurisdiction and the same subject-matter) owed much to a failure to understand the essentially simple but very important analysis of the nature of legal rules proposed by Hohfeld, with the consequence that the ultimate effect of the rules is channelled through entirely redundant layers of abstraction that bear little relation to the underlying realities of how the law on the matter ends up operating.

Thus, there are two kinds of legal complexity: laws that are complex because they need to provide for, and only in so far as they need to provide for, the complexities inherent in the thing about which they are laws, and laws that introduce thier own, wholly needless complexity, either in substance (as in the law of trusts) or in expression (as in many a badly drafted contract of years past). It seems that some people in this discussion are confusing the two kinds of complexity, or, worse, not even realising that they are distinct.

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Post by Oni Jiutai »

If anyone's taking a straw poll, I broadly agree with Ash.

A few additional comments. The current procedural rules anticipate that parties and the Judge will create new procedural rules at the beginning of each case. I'm afraid the idea of attempting to recreate a procedural system in every case, with two parties that are presumably not very happy with each other, fills me with a terrible sense of gloom. It just seems an enormous amount of work to repeat each time. Not to mention the possibility of appeals, followed by repeated efforts to agree the procedure.

I think we need also to consider the impact of having an international citizenry. If the forums show nothing else, it's that we don't share all the assumptions about legal systems that judges, lawyers and litigants from the same country do. So it's important to have things written down precisely enough that we can reach a common understanding.

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Post by Beathan »

Oni --

I am reminded of a joke that was apparently told by Abraham Lincoln in closing arguments. Little Johnny comes running in to see his Pa. "Pa," he says, "come quick -- Mary-Lou is in the barn with the new farm hand, and she's hiking up her dress, and he's taking down his pants -- hurry, they're about the piss all over the hay." "Son," Pa says, "you have your facts right, but you've come to entirely the wrong conclusion."

I agree with Oni's broad strokes. However, my experience of setting agreed procedures in arbitrations is that it is not only hard -- it makes good common sense and has the effect of investing the opponents in the process, as something they share and participate in, which has the effect of erecting a barrier between the arbitrator and the litigants such that hostility is not transferred to the arbitrator even when the arbitrator rules against a party. This is bright -- not at all gloomy.

Second, I think that the international nature of out citizenry is exactly why we need procedural flexibility. We need to adapt to our differences as those differences are presented in each case -- rather than force fitting our citizens to an uncomfortable and unfamiliar norm imported from some country other than their own.

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Post by Justice Soothsayer »

[quote="Oni Jiutai":437lfg52]If anyone's taking a straw poll, I broadly agree with Ash.[/quote:437lfg52]
Someone is taking a straw poll. The RA established a Special Commission to do just that; when the revised bill becomes final either by SC approval or passage of 48 hours, the Commission will be soliciting much public input. Please join in!

[quote:437lfg52]A few additional comments. The current procedural rules anticipate that parties and the Judge will create new procedural rules at the beginning of each case. I'm afraid the idea of attempting to recreate a procedural system in every case, with two parties that are presumably not very happy with each other, fills me with a terrible sense of gloom. It just seems an enormous amount of work to repeat each time. Not to mention the possibility of appeals, followed by repeated efforts to agree the procedure.

I think we need also to consider the impact of having an international citizenry. If the forums show nothing else, it's that we don't share all the assumptions about legal systems that judges, lawyers and litigants from the same country do. So it's important to have things written down precisely enough that we can reach a common understanding.[/quote:437lfg52]
Most RL trial judges I know or have practiced before have a standard pretrial order, which is modified to fit the circumstances of a particular case as needed. There is no need to reinvent the wheel each time, only to adjust the extent to which the tire is inflated. :D

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Post by Ashcroft Burnham »

[quote="Justice Soothsayer":ezvtpe2g]Most RL trial judges I know or have practiced before have a standard pretrial order, which is modified to fit the circumstances of a particular case as needed. There is no need to reinvent the wheel each time, only to adjust the extent to which the tire is inflated. :D[/quote:ezvtpe2g]

That's why the original code of procedure gave judges a great deal of discretion.

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Post by Dexter Leopold »

[quote:osrgoa5e]my experience of setting agreed procedures in arbitrations is that it is not only hard -- it makes good common sense and has the effect of investing the opponents in the process, as something they share and participate in, which has the effect of erecting a barrier between the arbitrator and the litigants such that hostility is not transferred to the arbitrator even when the arbitrator rules against a party. [/quote:osrgoa5e]

In my humble opinion, litigants who are before the court where property (including currency) or participation in CDS are at stake will already be "invested" in the process. Plus, I also see such a system as opening up the door to endless debate/argument over what procedures will even guide the resolution process, and this would be prior to the arguments about the actual issues of the claim even being discussed! Furthermore, what is our concern about particpants directing their "hostility" towards the arbitrator and/or judge? Are we saying that the decision-makers goal should be to be liked by the parties? I believe that reaching a correct legal decision, regardless of the parties opinions/feelings about the decision, should be the number one priority here. There is no room for popularity contests in the legal process, and fairness and consistency should rule the day. Of course, I could employ other commentors arguments and simply state that I fail to see the relevance of your real world experiences in this discussion (jk).

[quote:osrgoa5e]I think that the international nature of out citizenry is exactly why we need procedural flexibility. We need to adapt to our differences as those differences are presented in each case -- rather than force fitting our citizens to an uncomfortable and unfamiliar norm imported from some country other than their own. [/quote:osrgoa5e]

Not surprisingly, I would have to echo Oni's views regarding the preference for clear procedural rules when considering our international citizenry. Ash's Code was not "some country's" norm, it was to be the standard for the CDS. His procedures clearly were not based on one country's procedures, but were rather a mix of aspects of many countries current RL systems, while further injecting completely original aspects as well. So what "norm's" are litigants to follow? What if we have opposing parties from different countries? Whose "norm" rules the day in those situations? We should also consider what happens if parties from different countries, with varying degrees of familiarity with, let's say, the English language, seem to agree on a procedure through their own personal understanding of what some would consider common meanings of common words, and later find out that their understanding was not that of their opponents at all after the procedure has been agreed upon? What if they don't realize this until the proceedings are already underway? Do we then halt proceedings for an appeal? Does that party just have to "deal" with the fact that he/she/it was misguided?

To further continue the broken record that is me, firmly established procedural guidelines put all parties on notice of how the process will operate, and ensures that "that party" will be treated as fairly as the party before or after.

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Post by Ashcroft Burnham »

[quote="Dexter Leopold":24qz3w6f]Plus, I also see such a system as opening up the door to endless debate/argument over what procedures will even guide the resolution process, and this would be prior to the arguments about the actual issues of the claim even being discussed![/quote:24qz3w6f]

This was exactly the experience of the StarFleet trial, on which our citizen reporter Ludo Merit wrote a critical article for the November edition of the SecondLife Business Magazine.

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Post by Dexter Leopold »

I would urge everyone who is interested in this debate to read the article Ash has referred to in the SLBM. While we continue to argue "what if's" in our debate here, the StarFleet trial provides an all too real example of the dangers posed by not having very clear and specific procedural rules.

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Post by Flyingroc Chung »

[quote="Ashcroft Burnham":2fhr78ec]The underlying principle that [i:2fhr78ec]does[/i:2fhr78ec] entail that all legal systems are necessarily unavoidably complex is the principle that applying any rule to govern something that is mind-bogglingly complicated will itself be even more mind-bogglingly complicated. Human behaviour is the mind-bogglingly complicated thing to which law, by its nature, seeks to apply rules.[/quote:2fhr78ec]

I still don't see it: why can't simple rules govern complicated behavior? I am quite saddened by this singular lack of vision. There could be many different models for building a legal system that we could try -- what about a "lego"-like system? Simple building blocks that you could put together quickly to handle simple problems; same building blocks that you could use to handle large complex problems.

I don't know if such a system is possible or workable, but why not try it? Something new, something different, something *exciting*?

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Post by Gxeremio Dimsum »

[quote="Dexter Leopold":4nj8lugk]I would urge everyone who is interested in this debate to read the article Ash has referred to in the SLBM. While we continue to argue "what if's" in our debate here, the StarFleet trial provides an all too real example of the dangers posed by not having very clear and specific procedural rules.[/quote:4nj8lugk]

I think the article is more of a warning about not having people go into a trial knowing what to expect (which can be accomplished through pretrial discussions) and the failure of the judge to have control of the courtroom, including giving directions to the jury.

This article is also a warning about trying to have a complicated system in SL. Imagine if the rules which Ashcroft wanted had been in play. How long might the trial have been when 3 hours was already considered too much by most participants.

I do note that as far as I know we don't have any rules akin to the 5th amendment in the US which allow a person not to incriminate themselves during a trial.

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Post by Beathan »

Flyingroc --

Hallelujah!!!! That's exactly the point. Legos -- even the right image.

Personally, I don't see that we could not construct an entire common law of contract based on Ash's two simple principles. More, I think that that is actually exactly what occurred iRL.

The two main points: 1. We are in SL, not RL; 2. we can do better than RL because we have the benefit of hindsight.

One of the biggest mistakes of RL legal systems is that they have become far, far too complex and professionalized. We can and should do better. If we do -- we will have done something new, something different, something exciting, something sublime. If we just reinvent the wheel, trying to force fit SL life to RL ideas -- and multicultural people to culturally embedded concepts -- we harm ourselves, our project, our state, and Justice itself.

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Post by Dexter Leopold »

I certainly disagree with Gxeremio's interpretation of the article, though fully recognize that my comments are nothing but an interpretation as well.

Wouldn't pretrial discussions have to include such discussions regarding judge control, instructions regarding the jury, witnesses, evidence, etc.? And the list goes on and on. It would seem to me then that every claim would require going through the same lengthy set of issues in order for everyone to know what to expect from that particular proceeding. A clear and comprehensive set of procedures would eliminate those discussions because all of those issues are clearly set out. All parties would know what to expect without having to revisit all of those issues over and over again.

I interpret the problems raised in the article as evidence of how things can quickly meltdown where there is a simple system thrown together without sufficent forethought. If the parties knew the procedure that was in effect, I would argue that the trial would have been shorter because some of the issues raised during trial, which no doubt consumed much of trial, would have already been established through a detailed code. While Ash's Code is undoubtedly longer and more intricate then which was in play for that trial, many of the rules deal with procedures relating to how things are to be handled outside the trial itself.

A poorly organized, content-lacking code of procedure just allows for more and more questions that must be raised and addressed due to its inherent uncertainty. As a result, more and more time consumed prior to even getting to the heart of the case. Even worse, that lengthy process must be repeated over and over again for each case.

I know as an advocate, I'm going to want to be 100% certain of all issues and potential issues that will affect the proceeding I'm involved in. Will I be heard on such issues? Is my client going to be at a disadvantage for employing the assistance of professional counsel? I would certainly hope that would not be the case.

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