Of Pendulums and Rules

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Oni Jiutai
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Post by Oni Jiutai »

[quote:1on54ew9]As a community of many people from many countries, we will have lawyers, judges and litigants who have very different experiences, instincts and beliefs about such things.[/quote:1on54ew9]

Which, puts very precisely why I feel we should aim to settle such things in advance and why it's important for the procedures to be ultimately endorsed by the RA.

Otherwise, each case risks turning into a tangle of conflicting views of what the process should be as the parties and judge attempt to do exactly the same thing that we're having such trouble with. If the judge cuts that gordian knot, he's just imposed his own - doubtless imperialist and ethnocentrist - view on the parties.

It seems to me that the only way out of that loop is for the community - through the democratic process - to agree how they want the system to be conducted.

I also really don't think that making those choices means that we cut out future change. It seems to me that, in practice, it's easier to try one thing, see if works and, if it doesn't, try another thing, than it is to try an infinity of things at the same time and hope a front runner will emerge.

For example, there's been quite a bit of talk about juries. Some are pro, some - including me and Beathan - think they won't work in SL. I think we should make a decision, then see how it works. If we don't have juries we may find that people are fundamentally unhappy with judges doing fact finding in certain cases - and then we can bring juries in to do that. If we do have juries, we may find that it's very difficult to get people to serve, that they cause long delays in bring cases to a hearing - and then we can move to judicial fact finding.

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Post by Gxeremio Dimsum »

[quote="Ashcroft Burnham":19jtg0mr]Why can we not say "[i:19jtg0mr]This is a vritual nation. We have our own, singlular culture here. That is based on what we believe works. It may be inspired from real-life cultures in some respects, but only because they provide valuable insights sometimes. We never accept or reject anything merely because of its cultural origin. If you want to be a part of our community, you will need to adapt to our own, unique culture: don't think that you can bring your first-life culture with you wholesale and expect everybody else to share it or accomodate you in doing so[/i:19jtg0mr]"?[/quote:19jtg0mr]

And what if someone said this to you as an argument against your cultural biases and your "it works in England!" stance?

You've mentioned this argument before; what singular culture do you think we have, exactly? What are its characteristics? Is it the same culture as 6 months ago, before you or I arrived? Will it be the same 6 months from now?

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Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":p9m62ewq][quote="Ashcroft Burnham":p9m62ewq]Why can we not say "[i:p9m62ewq]This is a vritual nation. We have our own, singlular culture here. That is based on what we believe works. It may be inspired from real-life cultures in some respects, but only because they provide valuable insights sometimes. We never accept or reject anything merely because of its cultural origin. If you want to be a part of our community, you will need to adapt to our own, unique culture: don't think that you can bring your first-life culture with you wholesale and expect everybody else to share it or accomodate you in doing so[/i:p9m62ewq]"?[/quote:p9m62ewq]

And what if someone said this to you as an argument against your cultural biases and your "it works in England!" stance?[/quote:p9m62ewq]

I should reply by referring to the following passage of the above:

[quote:p9m62ewq]It may be inspired from real-life cultures in some respects, but only because they provide valuable insights sometimes,[/quote:p9m62ewq]

and pointing out that this is one of the circumstnaces where a real-life culture provides valuable insights, and then citing all the reasons as to why that way of doing things is, independent of any culture, an inherently good way of doing things.

[quote:p9m62ewq]You've mentioned this argument before; what singular culture do you think we have, exactly? What are its characteristics? Is it the same culture as 6 months ago, before you or I arrived? Will it be the same 6 months from now?[/quote:p9m62ewq]

I am not an anthropologist: I cannot tell you all the details of our culture. It is indeed emerging, and no doubt developing. Gwyn is good with cultural insights: she posted some time ago about the "in-wallies" and "out-wallies" in Neufreistadt.

Our culture seems to include a preference for the intellectual and cultured, a love of good, consistent aesthetics, successful commerce, knowledge and education, and community cohesion. In our culture there are also inherent tensions, between those who want to experiment and those who want to organise, between those who want to involve people for the sake of involvement, and those who want whatever system works the best at performing the functions that such a system exists in the first place to perform.

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Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":2aujgavn][quote="Ashcroft Burnham":2aujgavn]Why can we not say "[i:2aujgavn]This is a vritual nation. We have our own, singlular culture here. That is based on what we believe works. It may be inspired from real-life cultures in some respects, but only because they provide valuable insights sometimes. We never accept or reject anything merely because of its cultural origin. If you want to be a part of our community, you will need to adapt to our own, unique culture: don't think that you can bring your first-life culture with you wholesale and expect everybody else to share it or accomodate you in doing so[/i:2aujgavn]"?[/quote:2aujgavn]

And what if someone said this to you as an argument against your cultural biases and your "it works in England!" stance?[/quote:2aujgavn]

I should reply by referring to the following passage of the above:

[quote:2aujgavn]It may be inspired from real-life cultures in some respects, but only because they provide valuable insights sometimes,[/quote:2aujgavn]

and pointing out that this is one of the circumstnaces where a real-life culture provides valuable insights, and then citing all the reasons as to why that way of doing things is, independent of any culture, an inherently good way of doing things.

[quote:2aujgavn]You've mentioned this argument before; what singular culture do you think we have, exactly? What are its characteristics? Is it the same culture as 6 months ago, before you or I arrived? Will it be the same 6 months from now?[/quote:2aujgavn]

I am not an anthropologist: I cannot tell you all the details of our culture. It is indeed emerging, and no doubt developing. Gwyn is good with cultural insights: she posted some time ago about the "in-wallies" and "out-wallies" in Neufreistadt.

Our culture seems to include a preference for the intellectual and cultured, a love of good, consistent aesthetics, successful commerce, knowledge and education, and community cohesion. In our culture there are also inherent tensions, between those who want to experiment and those who want to organise, between those who want to involve people for the sake of involvement, and those who want whatever system works the best at performing the functions that such a system exists in the first place to perform. I cannot tell whether it will be the same six months from now: it will probably have evolved to some extent, but remained in large part the same. What parts will change and what parts will stay the same is anybody's guess.

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Post by Gxeremio Dimsum »

[quote="Ashcroft Burnham":f0zscc0i]and pointing out that this is one of the circumstnaces where a real-life culture provides valuable insights, and then citing all the reasons as to why that way of doing things is, independent of any culture, an inherently good way of doing things.[/quote:f0zscc0i]

Well, that's where you and many others (including I) part ways. You often seem to believe the English way is "inherently" good (and thus needs no defense before being adopted), while others see that other options are just as good or better.

[quote:f0zscc0i]I am not an anthropologist: I cannot tell you all the details of our culture. It is indeed emerging, and no doubt developing. Gwyn is good with cultural insights: she posted some time ago about the "in-wallies" and "out-wallies" in Neufreistadt.

Our culture seems to include a preference for the intellectual and cultured, a love of good, consistent aesthetics, successful commerce, knowledge and education, and community cohesion. In our culture there are also inherent tensions, between those who want to experiment and those who want to organise, between those who want to involve people for the sake of involvement, and those who want whatever system works the best at performing the functions that such a system exists in the first place to perform.[/quote:f0zscc0i]

Putting aside your ridiculous assertion that we want to involve people sheerly to waste their and our time, and again your rather discredited experimenter/organizer monikers, I would say that I agree with your assessment of our "culture." However, none of the things you describe are untrue of any of the national cultures which we bring to Nstadt, so those descriptors aren't helpful at all in excluding new proposals based on "well, we have our own culture." It seems, rather, that the whole point of your posts above is to defend the implementation of your personal druthers behind a wall of "CDS culture." Kind of a "love it or leave it" brand of politics that, I'm afraid, will cause many more to leave than to love, including some who are just as foundational as you are in this community, if not moreso.

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Post by Beathan »

Oni wrote, quoting and responding to me,[quote:3mh2jxic]Quote:
"As a community of many people from many countries, we will have lawyers, judges and litigants who have very different experiences, instincts and beliefs about such things."

Which, puts very precisely why I feel we should aim to settle such things in advance and why it's important for the procedures to be ultimately endorsed by the RA.
[/quote:3mh2jxic]

I think that this does frame the critical difference between my position and yours. We both see cultural differences, and we both see that such differences will complicate dispute resolution. However, while you want to funnel those differences through a standardized process to minimize them and their effects, I want to explore them in practice to see if they reveal any ideas or systems that would be worth trying in SL. If so, I think we should try the idea to see how it works. Further, I think that by giving the court system flexibility to mold itself to fit the litigants, rather than force-fit the litigants to the system, we give greater respect to the litigants, making our system more attractive.

I acknowledge that this requires that we rely a lot on the imagination, flexibility, hard-work, and good-will of our judges -- which requires that our judges be exceptional people. For that reason, I emphasize the personal and character traits that would indicate that the judge is such person over their professional resumes, which indicate merely that they know about RL law. I would rather have an anthropologist judge than a barrister judge -- and, as Ash ackowledges, we don't have an anthropologist judge at the moment. (At a minimum, I would like to see an anthropologist consultant to a justice system -- to every justice system, RL or SL. A justice system that is not sensitive to the human distinctiveness, human values, human feelings (the general humanity) of the people who come before the bench is not just, no matter how systematized it is. Many American courts have such consultants -- and have had the equivalent of such consultants, at least when dealing with Native American people, for more than 100 years -- and our courts are far better off for it.)

It might be unfair -- and I have been hostile to attempts to divide our community into theoretical camps before -- but I think we can divide our community into those who think the justice system is about process, and those who think the justice system is about people. No matter how effective and efficient and predictable a process we have, if people feel demeaned or misunderstood or short-changed by the process, we have a bad process. A less efficient or less predictable process, provided it leaves people with faith that they were heard and respected as people, would be a better one. I don't think that we can have a fully-detailed process (at the outset, at least) without setting details for very bad reasons (such as "it works in England") and disrepecting people as a result. (As we learn about ourselves and SL disputes through our use of the system, we will come to have good reasons to set certain details -- but it is premature and harmful to set the details too early just because we want detail. I, at least, don't want detail that much. I want to get things right, even if that requires that we start with an extremely general and simplistic system because we don't know, and can't yet know, what details will be right.)

I hear Ash's retort already "It's not about people; it's about the law. We want rule of law, not rule of people." This response gets things wrong. Again, we want substantive law to govern our behavior -- protecting us from personal rule. However, we want all law, and all things, to respect our persons -- that is a basic human rights issue. The danger of a process-oriented justice system (especially one that fetishizes process to the extent Ash's does) is that it tends to make the essential nature of persons disappear. I am struck by the image of Charlie Chaplin driven through the cogs of a huge machine in [i:3mh2jxic]Modern Times.[/i:3mh2jxic] Something that was an apt cautionary tale in 1936 remains one today -- we must never forget that everything we do as human beings is about, and must ultimately respect as a matter of final concern, our own humanity and the humanity of those around us. The big problem of machine justice is that it forgets this critical thing -- and we all lose as a result.

Having laws and processes that respect us as persons is not contrary to rule of law -- it is exactly what makes for good law and provides for rule of good law. Rule of bad law is not good; and bad process makes even rule of good substantive law less perfect than it would be, even to the point of tainting our law beyond redemption. This is what the opponents of the JA are fighting so hard against. This is exactly the issue that Ash is obtusely ignoring, despite increasing number of posts.

Beathan

Last edited by Beathan on Fri Dec 22, 2006 11:31 am, edited 2 times in total.
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Post by Ashcroft Burnham »

[quote="Gxeremio Dimsum":1cn0ihv1]Well, that's where you and many others (including I) part ways. You often seem to believe the English way is "inherently" good (and thus needs no defense before being adopted), while others see that other options are just as good or better.[/quote:1cn0ihv1]

You misunderstand my arguments... again. I have never claimed that a way of doing things is good because, and only because, it is done that way in any given culture or nation (including England). The point is (1) one can get good ideas about what might work by looking at particular first-life systems; but (2) one must examine the independent merits of such ideas concluding that they are good in themselves. Part of that process can involve examining how those rules work in first-life systems. One can also examine the particular rule against individual alternatives to see whether the proposed alternatives make more or less sense. What one is examining is the effectiveness and efficiency of the rule at performing the function that the rule is there to perform, not whether it happens to be more or less consistent with any given culture, which is irrelevant.

[quote:1cn0ihv1]Putting aside your ridiculous assertion that we want to involve people sheerly to waste their and our time...[/quote:1cn0ihv1]

I thought that it was ridiculous, too, until it became evident that that is exactly what some people are intent on doing.

[quote:1cn0ihv1]...and again your rather discredited experimenter/organizer monikers[/quote:1cn0ihv1]

Something is not "discredited" merely because Beathan disagrees with it.

[quote:1cn0ihv1]...I would say that I agree with your assessment of our "culture." However, none of the things you describe are untrue of any of the national cultures which we bring to Nstadt, so those descriptors aren't helpful at all in excluding new proposals based on "well, we have our own culture."[/quote:1cn0ihv1]

You misunderstand my arguments once again. I do not seek to exclude any given rule because it is not in conformity with CDS culture: the point is that it does not make any sense to say that any given rule should be rejected because it is not in conformity with some national culture of any of our citizens' first lives, which is exactly the (absurd) reason that Beathan insists that all detailed rules should be rejected.

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Post by Ashcroft Burnham »

[quote="Beathan":2fxy4y0s]I think that this does frame the critical difference between my position and yours. We both see cultural differences, and we both see that such differences will complicate dispute resolution. However, while you want to funnel those differences through a standardized process to minimize them and their effects, I want to explore them in practice to see if they reveal any ideas or systems that would be worth trying in SL. If so, I think we should try the idea to see how it works.[/quote:2fxy4y0s]

Surely, you being an advocate of simplicity would jump on any chance to minimise the complicating effects of anything?

In any event, this does not give any reason to prefer your particular model of testing, which is by having extreme rule vagueness and having judges and parties randomly try out rules in each and every case by having to start from scratch in every one. How do you address the point that this gives [i:2fxy4y0s]none[/i:2fxy4y0s] of the potential rule-sets a fair test?

In any event, if you think that this way of doing things should be tried out, why not try it out in arbitration, and leave the serious disputes in real courts to the tried and trusted method of having detailed rules?

[quote:2fxy4y0s]Further, I think that by giving the court system flexibility to mold itself to fit the litigants, rather than force-fit the litigants to the system, we give greater respect to the litigants, making our system more attractive.[/quote:2fxy4y0s]

Explain your concept of "respect" here. Why is it disrespectful of anyone to require conformity to rules with which those people disagree? Indeed, is your propsal, which entails a rule that there should be few rules or that the rules should vary in each case, not, by the same measure, grossly disrespectful of all those who come from cultures that have one standard set of rules (i.e., everyone)? Do you not see that you argument is absurd and contradictory?

[quote:2fxy4y0s]I acknowledge that this requires that we rely a lot on the imagination, flexibility, hard-work, and good-will of our judges -- which requires that our judges be exceptional people. For that reason, I emphasize the personal and character traits that would indicate that the judge is such person over their professional resumes, which indicate merely that they know about RL law. I would rather have an anthropologist judge than a barrister judge -- and, as Ash ackowledges, we don't have an anthropologist judge at the moment.[/quote:2fxy4y0s]

You are assuming that, even with these things in place, it could possibly work. I have yet to see the evidence. Why should people rely on your mere assertions that it will work? Do you hold yourself out as infallible, or somebody whose views should be accepted unquestioningly?

[quote:2fxy4y0s](At a minimum, I would like to see an anthropologist consultant to a justice system -- to every justice system, RL or SL. A justice system that is not sensitive to the human distinctiveness, human values, human feelings (the general humanity) of the people who come before the bench is not just, no matter how systematized it is. Many American courts have such consultants -- and have had the equivalent of such consultants, at least when dealing with Native American people, for more than 100 years -- and our courts are far better off for it.)[/quote:2fxy4y0s]

Again, this is just your assertion: do you have any independent way of showing this, or do you, again, expect people to accept what you claim unquestioningly? Precisely what [i:2fxy4y0s]kind[/i:2fxy4y0s] of "sensitivity to human distinctiveness" do you think ought manifest in a justice system, in precisely what sort of way?

[quote:2fxy4y0s]It might be unfair -- and I have been hostile to attempts to divide our community into theoretical camps before -- but I think we can divide our community into those who think the justice system is about process, and those who think the justice system is about people. No matter how effective and efficient and predictable a process we have, if people feel demeaned or misunderstood or short-changed by the process, we have a bad process. A less efficient or less predictable process, provided it leaves people with faith that they were heard and respected as people, would be a better one. I don't think that we can have a fully-detailed process (at the outset, at least) without setting details for very bad reasons (such as "it works in England") and disrepecting people as a result.[/quote:2fxy4y0s]

This is an incoherent distinction because "process" and "people" are not exclusive facets or functions of a justice system. It is absurd and disingenuous to claim that anybody believes that a judicial system is "all about process" in the sense that the process is part of its function: it is not. Process is a means to an end. People are, of course, part of that end, as all ends relevant to people necessarily are, so your second pole is so vague as to be meaningless. Everybody agrees that a judicial system (1) should do useful things for people; and (2) should have a process that serves those ends well. The question (which is merely begged by your meaningless distinction) is what kind of process serves the (necessarily) people-related ends that a justice system exists to serve.

Do you accept, by what you write above, that having detailed rules is more efficient, and more predictable than not having detailed rules? If you do, it necessarily follows that you also accept that a system that has detailed rules does, at least in two significant senses, serves the (people-related) ends that a judicial system inherently seeks to serve better than what you propose. You seem to be claiming that at least some people will dislike any given set of rules despite the fact that they are inherently superior to having no or few rules, because those rules are not consonent with those people's first-life cultures, and that, in consequence of that disliking, will, somehow, cause the judicial system to serve less well those ends that a judicial system inherently seeks to serve; yet you provide no evidence to substantiate this. You merely guess. Why should people disrespect a system because it has rules that, although they work very well indeed, happen to be different from the rules that prevail in that person's own culture? Indeed, if that were so, would it not mean that [i:2fxy4y0s]everybody[/i:2fxy4y0s] would strongly disrespect and disregard the system that you propose, which is vastly different to [i:2fxy4y0s]any[/i:2fxy4y0s] given rule-set from any given legal culture?

[quote:2fxy4y0s](As we learn about ourselves and SL disputes through our use of the system, we will come to have good reasons to set certain details -- but it is premature and harmful to set the details too early just because we want detail. I, at least, don't want detail that much. I want to get things right, even if that requires that we start with an extremely general and simplistic system because we don't know, and can't yet know, what details will be right.)[/quote:2fxy4y0s]

Why do you claim that we cannot know what details will work? What stops us from knowing what will work as to rules on admissibility of evidence, the burden and standard of proof, pre-trial disclosure, legal professional privilege, and leave to appeal? What, precisely, is so different about people who interacting through the medium of SecondLife to people interacting through other media, including in person, that means that the rules on those things that work or make sense in the first life do not in SecondLife?

Last edited by Ashcroft Burnham on Fri Dec 22, 2006 11:35 am, edited 1 time in total.
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Post by Oni Jiutai »

[quote:1rlo0myx]However, while you want to funnel those differences through a standardized process to minimize them and their effects,[/quote:1rlo0myx]

Say rather that I want us all to try to reach a consensus on what elements of everybody's culture can be combined with entirely new ideas into a single system.

[quote:1rlo0myx]I acknowledge that this requires that we rely a lot on the imagination, flexibility, hard-work, and good-will of our judges -- which requires that our judges be exceptional people.[/quote:1rlo0myx]

I think such a system would also require exceptional litigants, moreover litigants who were at least as interested in exploring judicial models as they were in resolving their actual disputes.

I don't think any system - particularly not any judicial system - can rely on everybody who encounters it being exceptional and of good-will. A judicial system certainly shouldn't rely on litigants being interested in the development of the system itself. Why should they be?

[quote:1rlo0myx]I think we can divide our community into those who think the justice system is about process, and those who think the justice system is about people.[/quote:1rlo0myx]

I wouldn't want to speak for anyone else, but I think any system is about designing the best process for the people. In a justice system one of the things that people want is for it to be efficient and predictable - although these are obviously not the only important things.[/quote]

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Post by Ashcroft Burnham »

[quote="Oni Jiutai":1sa24obp]Say rather that I want us all to try to reach a consensus on what elements of everybody's culture can be combined with entirely new ideas into a single system.[/quote:1sa24obp]

I rather think that any consensus about a judicial system is hopelessly optimisitc. Even in nations where that share a single legal culture, a very large number of aspects of the rules are unendingly controversial. What is required is not the impossible end of universal agreement, but an effective means of breaking the tie in choosing which is best, and then sticking with it unless it goes horribly wrong or needs minor refinement.

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Post by Oni Jiutai »

[quote:3jepqev8]I rather think that any consensus about a judicial system is hopelessly optimisitc. Even in nations where that share a single legal culture, a very large number of aspects of the rules are unendingly controversial. What is required is not the impossible end of universal agreement, but an effective means of breaking the tie in choosing which is best, and then sticking with it unless it goes horribly wrong or needs minor refinement.[/quote:3jepqev8]

I can't disagree with any of that. :D

I should have said, sufficient consensus for something to be implemented and the cycle of test / discovery / change to being.

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Post by Ashcroft Burnham »

[quote="Beathan":1av4t9vr]I hear Ash's retort already "It's not about people; it's about the law. We want rule of law, not rule of people." This response gets things wrong.[/quote:1av4t9vr]

The straw-man nature of this argument is shown up very well by comparing this with my actual response, written before I read your addendum.

[quote:1av4t9vr]The danger of a process-oriented justice system (especially one that fetishizes process to the extent Ash's does) is that it tends to make the essential nature of persons disappear.[/quote:1av4t9vr]

Firstly, it is incoherent to concieve of a justice system that is "oriented" towards process, whatever that means. As I explain above, process is no more than a means to an end. Unless your position is very bizarre indeed, all that we are disagreeing about is what process best serves that end.

Secondly, are you seriously suggesting that having a detailed set of legal procedural rules is conceptually capable of "mak[ing] the essential nature of persons disappear"? How, exactly, do you concieve of rules about things such as the admissibility of evidence, the burden and standard of proof, disclosure of evidence and grounds for appealing as being meaningfully capable, in and of themselves, of making anything about anyone disappear? People are still people, and their characteristics undiminished, when they abide by legal procedural rules for the relatively short time (unless they are lawyers) that they are engaging with a court process. What these people inherently want by going to court at all is an exepditious and fair resolution of their case. The process that should be chosen, therefore, is the process that most tends to give that outcome.

[quote:1av4t9vr]Having laws and processes that respect us as persons is not contrary to rule of law -- it is exactly what makes for good law and provides for rule of good law. Rule of bad law is not good; and bad process makes even rule of good substantive law less perfect than it would be, even to the point of tainting our law beyond redemption. This is what the opponents of the JA are fighting so hard against. This is exactly the issue that Ash is obtusely ignoring, despite increasing number of posts.[/quote:1av4t9vr]

Beathan, it is positively dishonest of you to claim that I am ignoring the fact that the anti-judiciary activists are claiming that the original code of procedure is a bad thing, and it is absurd to suggest that I do not agree that it is bad to have bad procedure. What I disagree with, on principle, for good reason, that I, unlike you, have spelt out in detail many times, is your contention that good procedure entails extreme vagueness, rather than detail.

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Post by Samantha Fuller »

Sounds like we need a recomended set or sets of detailed procedures with options to modify them to fit cirmstances. 8)

By the way has anybody asked Gwyn which procedures were worked out for the other trial or was it such a disaster that the only real pressident in CDS history must be ignored? Is a transcript avalible, woud a transcript be a violation of TOS or is that a job for the as of yet to be filled SC Archivist? :roll:

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Post by Ashcroft Burnham »

[quote="Samantha Fuller":1c8dgvp8]Sounds like we need a recomended set or sets of detailed procedures with options to modify them to fit cirmstances. 8)[/quote:1c8dgvp8]

Which is exactly what we had with the original Code of Procedure: the judge was given a considerable discretion in many respects as to the application of the rules, which discretion was bounded by factors that the judge must take into consideration when exercising it. That provided exactly the right balance between predictability and flexibility.

[quote:1c8dgvp8]By the way has anybody asked Gwyn which procedures were worked out for the other trial or was it such a disaster that the only real pressident in CDS history must be ignored?[/quote:1c8dgvp8]

Undoubtedly the latter. As Gwyn pointed out at the commission hearing, most of the time (twenty hours or so) was spent trying to work out what the rules should be.

[quote:1c8dgvp8]Is a transcript avalible, woud a transcript be a violation of TOS or is that a job for the as of yet to be filled SC Archivist? :roll:[/quote:1c8dgvp8]

A transcript is available on the Wiki.

Ashcroft Burnham

Where reason fails, all hope is lost.
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