Goals of the judicial structure

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Gxeremio Dimsum
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Goals of the judicial structure

Post by Gxeremio Dimsum »

In the midst of some hot and heavy debate over the technicalities of the JA, I thought it might be nice to step back for a minute and talk about our goals in having a judiciary at all. Then we have something to compare the possible systems against, as opposed to building and tearing down sandcastles without much regard for their purpose. Here are some goals I think any candidate system should meet:

First and foremost, it should be a system people will want to use, since it is entirely by choice that people will use it. There is very little that the CDS can do to force people to use a system they don't like. Even repossessing lands is a small threat, when RL monetary amounts are considered. Banning is probably the strongest threat, but contact with anyone is still possible elsewhere on the grid and by IM.

It should be easy and fast enough to use that people can fit it around their real lives, especially for those who don't spend more than a few hours a week inworld.

It should be as international as possible. It should work well with people who aren't fluent in English legalspeak (and that included many English speakers!).

It should be democratic and support the continued emergence of democratic government in SL.

It should be fair. Real appeal should be possible, and the people involved should be accountable to the public for their actions in the sense that they must observe high standards of behavior and avoid conflicts of interest.

It should be scalable, including scaling down until we are large enough to sustain a larger judiciary.

Its benefit to citizens should be equal to or greater than its drain on resources.

It should if possible be cool and impressive, to garner attention and draw in new citizens beyond those who want to work in it.

Any other ideas for goals?

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Samantha Fuller
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Differing objectives mean differing goals

Post by Samantha Fuller »

The folowing thoughts started in another thread and drifted in this direction, not quite the same yet but close hope its drifting in your way and i'm not hijacking the thread.

From Differing Objectives thread in Genral Discusion
Ashcroft wrote
[quote:2i5cxuxp]
[quote:2i5cxuxp]Samantha Fuller wrote:
Ash this is where you are wrong and one reason why your real life adapted procedures will fail. Every sort of fraud in RL is posible in SL plus quite a few.

It is even posible to defraud the tenuous physics of this world. While it is true a few types of fraud are more dificult, many more types of fraud are much much easer. Also those types that are somewhat dificult can become realy easy literly overnight (that was what the recent copybot flap was all about).
[/quote:2i5cxuxp]
How can one add "quite a few" to "every sort"? In any event, it is simply untrue that "every sort" of fraud is impossible: one cannot, for example, set an object for sale but have it not deliver to the person's inventory after money is paid. Similarly with land sales. One can defraud renters of land, and, using CopyBot, make copyright-infringing copies of objects and avatars. Some sorts of fraud are possible, others are not. In any event, that does not tell us anything about whether or not detailed legal procedures are workable in SecondLife: what it does tell us, however, is that a legal system is very much necessary to deal with such fraud.
[/quote:2i5cxuxp]
There are some types of fraud that are imposible or extreemly difucult in the RW but are easy on the internet a tall person pretending to be short for example. If you have been out of the CDS you might have noticed that most items in SL are sold through vendors, vendors can be coded (or more comonly be miscoded) to take your money and give nothing back and i haven't met a avatar yet that refuses to buy stuff from vendors because the might not get the items. As for indivudal items a simple die on rez script woud effectively do the same. Regarding land, land can be advertized or listed for sale that realy isen't for sale and the unwary can be defrauded by people who promise to sell then don't. If you think CopyBot is required to make copyright-infringing copies of objects and avatar acesories, and textures you realy haven't been paying attention, CopyBot merely made the process a little bit easer and the flap died down to a smoldering ember when it became aperent that it diden't make the process that much easer. Yes these mean that SL dose need a [u:2i5cxuxp]afordable functioning legal system[/u:2i5cxuxp] badly but it will stagger along without one.

Ashcroft wrote
[quote:2i5cxuxp]
[quote:2i5cxuxp]Many customs and ways of dealing with problems of resedents come from MMOGs as well as from the blogasphere, chat rooms, forums , MyPlace, E-bay and simlar venues. These customs were developed to cope with the easy fraud, increadbly diverse cultures, and sexual permisivness of the internet. Not to mention the somewhat false sense of anontmty that encorages flaming and other social phenomen.
[/quote:2i5cxuxp]
None of this means that these methods are inherently superior to a formally-constituted legal system: just as, in real life soceities, vendettas and feuds preceeded formal legal systems, and trial by ordeal preceeded trial by jury, so, too, in virtual communities do primative ways preceed sophisticated legal systems.
[/quote:2i5cxuxp]
What i was trying to say isen't that these customs are so much primitive as adapted to the fraudprone, nobodys clear jurisdiction, few body clues enviroment of the internet

Using the example of service of documents the brute force methoud of causing problems woud be to return an acknolagment doc along with severl hundred extranious docs or objects posibly from one ore more alts IMs are even mose subject to abuse and some people have them regualry caped, a more sofisticated aproch woud to be to simply claim the document failed to rez and was lost by LL.

The point isen't that good leagal system and clear procedures aren't usful its that they are not the be all do all, and are genraly only usful if most everyone understands and respects them.

The usual way for RL judges to deal with trouble makers once it becomes clear they are troublemaking or gaming the system is to simply to declare someone in contempt of court, but you don't have that kind of finely tuned coresive ability and with the current suspision and lack of regard for your judicary i find it hard to belive that eather the SC or RA woud grant it even if they were able. :)

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Re: Goals of the judicial structure

Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":184872pz]First and foremost, it should be a system people will want to use, since it is entirely by choice that people will use it. There is very little that the CDS can do to force people to use a system they don't like. Even repossessing lands is a small threat, when RL monetary amounts are considered. Banning is probably the strongest threat, but contact with anyone is still possible elsewhere on the grid and by IM.[/quote:184872pz]

As I stated in a commission meeting in some length, and you seem to have ignored entirely, this superficially attractive goal is actually seriously flawed. If people are going to court, it means, unless they are lawyers, judges or court staff, that something has gone seriously wrong for them. They do not go to court because they like going to court: they go to court in an attempt to resolve a serious problem. Nobody is going to want to go to court because that will mean that something is wrong: anyone other than a lawyer who positiviely desires to go to court should be viewed with deep suspicion as overly litigious. Indeed, there are good reasons not to make courts too welcoming, since it is likely to encourage frivolous litigation. People should think of court as a plce to go when they have a serious problem that they cannot otherwise resolve, and think of court proceedings as a serious way of getting a fair resolution to that problem, not as an amusing distraction from cooking dinner. The priority on the courts is therefore on being fair and effective, not on being fun to use.

[quote:184872pz]It should be easy and fast enough to use that people can fit it around their real lives, especially for those who don't spend more than a few hours a week inworld.[/quote:184872pz]

My original code of procedure was designed to do just that: to minimise preliminary hearings, and have final hearings only resolving the specific disputes disclosed in writing in advance by the praties. The current rules mandate a lengthy "pre-trial" hearing in [i:184872pz]every single case[/i:184872pz] to work out the procedures, and do not require the parties to put in writing everything upon which they rely (which makes the writing part harder and longer, but the hearings reciprocally easier and shorter), so the current rules fall well short of this goal.

[quote:184872pz]It should be as international as possible. It should work well with people who aren't fluent in English legalspeak (and that included many English speakers!).[/quote:184872pz]

I do not know exactly what you mean by "international" as a goal; as to the second point, that is exactly why we need an easy guide to our procedures.

[quote:184872pz]It should be democratic and support the continued emergence of democratic government in SL.[/quote:184872pz]

It is unclear what you think that it means for a judicial system to be democratic. In my view, it is democratic enough if the courts are bound to follow the laws passed by the democratic legislature. Anything further dangerously undermines judicial independence and impartiality.

[quote:184872pz]It should be fair. Real appeal should be possible, and the people involved should be accountable to the public for their actions in the sense that they must observe high standards of behavior and avoid conflicts of interest.[/quote:184872pz]

Agreed. All this is either a current or a planned part of the existing judicial system.

[quote:184872pz]It should be scalable, including scaling down until we are large enough to sustain a larger judiciary.[/quote:184872pz]

Nobody is going to disagree that the judiciary should be the right size for what it seeks to do: the question is how exactly one calibrates that size. It may be worthy of note that I had designed the system originally to take no more than two people (one judge and one clerk), but other people have since insisted that we need more. That is not a problem, since we have a ready supply of skilled lawyers and potential judges.

[quote:184872pz]Its benefit to citizens should be equal to or greater than its drain on resources.[/quote:184872pz]

Agreed: the proposal for an unending series of committees will undoubtedly be a huge drain on resources wholly unjustified by any outcome. The scrutiny of the judiciary should therefore be left to the body designed for such a purpose: the Public Judiciary Scrutiny Panel. As far as judges' time is concerned, that is something that the community cannot redistribute to other areas, so it is effectively free. As far as litigants' time is concerned, the procedural rules that I had written were designed to minimise the time required for hearings; the present, dangeroulsy vague rules, imagine endless pre-trial hearings in every case to invent the procedures all over again.

[quote:184872pz]It should if possible be cool and impressive, to garner attention and draw in new citizens beyond those who want to work in it.[/quote:184872pz]

It has already done that: Ludo Merit is an example of a citizen who joined because she found our judicial system impressive - her goal certainly has not been to work in it. But why "beyond people who want to work in it"? We have built a thriving community of skilled lawyers, many of whom contribute substantially to the community in other ways, too. A very large number of people indeed, taken all together, a tenth of our population, are here because they have been attracted by our judicial system. In terms of attracting citizens, it is undoubtedly one of the most successful single projects in the history of the CDS, with the possible exception of Colonia Nova.

[quote:184872pz]Any other ideas for goals?[/quote:184872pz]

How about:

* It should be efficient, effective, and just
* It should prevent conflict in advance by the clarity of its rules, as well as resolving it as it arises
* It should be a strong reason for people to enfranchulate with us
* It should attract legal academics and journalists to write about us (whether or not they become citizens)
* It should inspire Linden Lab to make it easier for everyone to have a local government
* It should prove to its critics that it is a workable and fair system after all.

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Re: Goals of the judicial structure

Post by Aliasi Stonebender »

[quote="Ashcroft Burnham":2b88m6hh]
As I stated in a commission meeting in some length, and you seem to have ignored entirely, this superficially attractive goal is actually seriously flawed. If people are going to court, it means, unless they are lawyers, judges or court staff, that something has gone seriously wrong for them. They do not go to court because they like going to court: they go to court in an attempt to resolve a serious problem. Nobody is going to want to go to court because that will mean that something is wrong: anyone other than a lawyer who positiviely desires to go to court should be viewed with deep suspicion as overly litigious. Indeed, there are good reasons not to make courts too welcoming, since it is likely to encourage frivolous litigation. People should think of court as a plce to go when they have a serious problem that they cannot otherwise resolve, and think of court proceedings as a serious way of getting a fair resolution to that (problem, not as an amusing distraction from cooking dinner. The priority on the courts is therefore on being fair and effective, not on being fun to use.
[/quote:2b88m6hh]

However, you have a misstep in your reasoning, Ashcroft. The judiciary is not the only option in resolving conflicts and problems., this is true. Yet, in the wild frontier of Second Life it is [i:2b88m6hh]because[/i:2b88m6hh] we believe these other options to be inferior that we support a judicial system. This is not a decision between arbitration and a court of law; this is a decision between a court of law and having a "sim mafia" grief and harass the other party, or between a court of law and arbitrarily banning anyone who is "problematic". Just as we are "selling" democracy, so must we "sell" justice - sell the concept of fairly settling disputes in a lawful fashion.

If someone who would otherwise become a citizen, or agree to settle a case in our courts and pay a fee, looks at our judiciary and says "Wow, this looks really stupid", we fail in this. The abstract correctness, 'judicial independence', etc, etc, simply won't matter; like franculates it will be pretty language that is ignored and unused. The disuse of our judicial system would be a wonderful thing indeed if this meant all affairs were being conducted in a harmonous and peaceful fashion. As I have yet to hear of Hell putting in an order for skis and snowboards, the more likely scenario is that people who might use our system to settle a dispute will instead choose the (inefficent, arbitrary, and unfair) methods that already exist.

I have said that, from a real-life perspective, our judiciary is effectively an ADR system. Perhaps I should have specified that Second Life is also quite real, and we must approach things in that light.

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Re: Differing objectives mean differing goals

Post by Ashcroft Burnham »

[quote="Samantha Fuller":35gq6vr9]Yes these mean that SL dose need a [u:35gq6vr9]afordable functioning legal system[/u:35gq6vr9] badly but it will stagger along without one.[/quote:35gq6vr9]

I have never suggested anything to the contrary: SL does indeed struggle along without a legal system, but would be much better off with one.

[quote:35gq6vr9]What i was trying to say isen't that these customs are so much primitive as adapted to the fraudprone, nobodys clear jurisdiction, few body clues enviroment of the internet[/quote:35gq6vr9]

I'm sorry, I do not understand the syntax of the above sentence. Please restate?

[quote:35gq6vr9]Using the example of service of documents the brute force methoud of causing problems woud be to return an acknolagment doc along with severl hundred extranious docs or objects posibly from one ore more alts IMs are even mose subject to abuse and some people have them regualry caped, a more sofisticated aproch woud to be to simply claim the document failed to rez and was lost by LL.[/quote:35gq6vr9]

Neither of these methods are unique to SL: a person can do exactly the same thing in real life with paper documents, sending in vast numbers of letters, or merely claiming that the thing was lost in the post. Real-world legal systems have ways of dealing with that, too (rules of deemed service, for instance, which our original code of procedure had). Of course, in SecondLife, it is rather easier in relation to the lost in the post example, since one gets an automatic acknowledgement if an inventory offer is either accepted or declined.

[quote:35gq6vr9]The point isen't that good leagal system and clear procedures aren't usful its that they are not the be all do all, and are genraly only usful if most everyone understands and respects them.[/quote:35gq6vr9]

That is why it is important that people write guides to the procedurs, and that people start respecting them.

[quote:35gq6vr9]The usual way for RL judges to deal with trouble makers once it becomes clear they are troublemaking or gaming the system is to simply to declare someone in contempt of court, but you don't have that kind of finely tuned coresive ability and with the current suspision and lack of regard for your judicary i find it hard to belive that eather the SC or RA woud grant it even if they were able. :)[/quote:35gq6vr9]

The court certainly does have the power to declare people in contempt and banish them, but, actually, a far more useful (and less draconian) power is simply to strike out a party's case if that party is in breach of the rules, which means that that party loses by default. Provision for that was made in the original rules, but was done away with when the irresponsible Soothsayer rules were introduced.

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Re: Goals of the judicial structure

Post by Ashcroft Burnham »

[quote="Aliasi Stonebender":8zemglq3]However, you have a misstep in your reasoning, Ashcroft. The judiciary is not the only option in resolving conflicts and problems., this is true. Yet, in the wild frontier of Second Life it is [i:8zemglq3]because[/i:8zemglq3] we believe these other options to be inferior that we support a judicial system. This is not a decision between arbitration and a court of law; this is a decision between a court of law and having a "sim mafia" grief and harass the other party, or between a court of law and arbitrarily banning anyone who is "problematic". Just as we are "selling" democracy, so must we "sell" justice - sell the concept of fairly settling disputes in a lawful fashion.

If someone who would otherwise become a citizen, or agree to settle a case in our courts and pay a fee, looks at our judiciary and says "Wow, this looks really stupid", we fail in this. The abstract correctness, 'judicial independence', etc, etc, simply won't matter; like franculates it will be pretty language that is ignored and unused. The disuse of our judicial system would be a wonderful thing indeed if this meant all affairs were being conducted in a harmonous and peaceful fashion. As I have yet to hear of Hell putting in an order for skis and snowboards, the more likely scenario is that people who might use our system to settle a dispute will instead choose the (inefficent, arbitrary, and unfair) methods that already exist.

I have said that, from a real-life perspective, our judiciary is effectively an ADR system. Perhaps I should have specified that Second Life is also quite real, and we must approach things in that light.[/quote:8zemglq3]

How does any of this disclose a mis-step in the reasoning? We do not attract people (perhaps other than lawyers) to the CDS by saying, "Look what fun you could have suing people or being sued!". We attract people to the CDS on the basis, "We very much hope that you do not get into any legal disputes here, but if you do, then, reast assured, they will be settled fairly and expeditiously".

The distinction that I was drawing was between what Gxeremio was suggesting (a system whose purpose it is to be fun to use), and a system that is used, not out of joy, but out of necessity, but addresses that necessity in the best and most effective possible way.

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Re: Goals of the judicial structure

Post by Gxeremio Dimsum »

[quote="Ashcroft Burnham":ny1fxku8]How does any of this disclose a mis-step in the reasoning? We do not attract people (perhaps other than lawyers) to the CDS by saying, "Look what fun you could have suing people or being sued!". We attract people to the CDS on the basis, "We very much hope that you do not get into any legal disputes here, but if you do, then, reast assured, they will be settled fairly and expeditiously".

The distinction that I was drawing was between what Gxeremio was suggesting (a system whose purpose it is to be fun to use), and a system that is used, not out of joy, but out of necessity, but addresses that necessity in the best and most effective possible way.[/quote:ny1fxku8]

Are you intentionally mischaracterizing my position, or simply misunderstanding my repeated statements? I have never once used the word "fun." I have said the benefit of using it needs to be greater than the cost of using it, for both parties, in every case. This does not mean it is "fun." When I contact LL with an abuse report, it is not "fun." But it is often my best option for recourse. If the judiciary will be used, it must be LIKED (not ENJOYED) by all concerned parties as the best option out of many options, including those which Aliasi outlined above. Otherwise, people simply will not use it, or only one party of the two will want to use it. And then what good is your beautiful sandcastle of a system?

By the way, just as it is would be silly to say "Look what fun it is to sue and be sued!", which again I never said, it is also silly to say, "Look how much money you can make from those who are suing and being sued!" when no one is willing to pay high monetary costs for such a system. So perhaps you should change your tactics for recruiting lawyers to the CDS.

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Re: Goals of the judicial structure

Post by Aliasi Stonebender »

[quote="Ashcroft Burnham":1ko22c7v]
How does any of this disclose a mis-step in the reasoning? We do not attract people (perhaps other than lawyers) to the CDS by saying, "Look what fun you could have suing people or being sued!". We attract people to the CDS on the basis, "We very much hope that you do not get into any legal disputes here, but if you do, then, reast assured, they will be settled fairly and expeditiously".

The distinction that I was drawing was between what Gxeremio was suggesting (a system whose purpose it is to be fun to use), and a system that is used, not out of joy, but out of necessity, but addresses that necessity in the best and most effective possible way.[/quote:1ko22c7v]

Ash, are you deliberately being obtuse, or just stupid?

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Re: Goals of the judicial structure

Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":2ruibo63]Are you intentionally mischaracterizing my position, or simply misunderstanding my repeated statements? I have never once used the word "fun." I have said the benefit of using it needs to be greater than the cost of using it, for both parties, in every case. This does not mean it is "fun." When I contact LL with an abuse report, it is not "fun." But it is often my best option for recourse. If the judiciary will be used, it must be LIKED (not ENJOYED) by all concerned parties as the best option out of many options, including those which Aliasi outlined above. Otherwise, people simply will not use it, or only one party of the two will want to use it. And then what good is your beautiful sandcastle of a system?

By the way, just as it is would be silly to say "Look what fun it is to sue and be sued!", which again I never said, it is also silly to say, "Look how much money you can make from those who are suing and being sued!" when no one is willing to pay high monetary costs for such a system. So perhaps you should change your tactics for recruiting lawyers to the CDS.[/quote:2ruibo63]

Perhaps I have misunderstood you to some extent, but there is still a flaw in what you claim: it does not make any sense to think of a judicial system that people want to use. Nobody wants to have to use the courts because using the courts means that something has gone wrong. What people do want is that, when they have to use the courts, proper attention is given to their case, and that the systems and procedures are efficient and fair, and produce just results. That is only possible with an independent judiciary, skilled judges, and detailed, carefully-considered procedural rules.

A judiciary is not, however, a popularity contest, nor must it ever be. Whoever loses a case is almost always going to be mistrustful of a judicial system, whether that mistrust is well placed or not. Nonetheless, there are many people who bring cases or against whom cases are brought who most certainly do deserve to lose. Judges should never, ever be afraid of delivering the just result because it would make the court unpopular with the losing party.

As to why people would use our judicial system, people would use it because only it could achieve particular things that the people wanted to achieve, such as having somebody banished, or resisting an attempt to be banished, or seeking enforcable compensation from a CDS citizen. People use the judiciary for the results, not the process: the process must therefore be designed to deliver the most just results expeditiously, not merely for its own sake, or the sake of experimentation.

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