Ash asks me if I am serious about consensus at the start of the case being a possible basis for procedures used in the case. I am. I achieve such consensus in most of my arbitrations. In most of these cases, the consensus is materially different from, rather than exactly tracking, the rules of civil procedure in place in my jurisdiction. I see no reason why this process, which works iRL, will not work here.
Further, my proposal handles the case of failure to participate, late participation, or failure to achieve consensus. To me, default and appeals are the only mechanisms we need.
Ash then claims that my arbitrations are only meaningful against a real process that allows for enforcement and appeals. Well, actually, in my jurisdiction, arbitration decisions are not appeallable. I personally have a problem with that being the general rule, but no problem with it if the parties agree. I do agree that enforcement is required -- but I see no special benefits in this regard from Ash's proposal over mine. The enforcement mechanism will be the same. In fact, by proceeding by consensus when possible, enforcement of decisions made under my system will be easier.
Ash then accused me of not believing in the importance of oral hearings. Far from it. I believe that oral hearings are extremely important. I just don't think that, given the unique features of SL, in person hearings will be possible in all cases. They should occur where possible -- but surely we should not halt the administration of justice in cases in which in person hearings are impossible, nor should we deeply prejudice one or both parties by setting the hearing at horrible times given their RL timezone.
As for rules of evidence, presumption, privilege, etc. -- these were all worked out over time from RL experience, and are still being so worked out. At my arbitrations, I tend to relax the rules of evidence from the standard court rules unless a party objects to the relaxation. Most parties prefer the more relaxed rules. I think that rules of evidence, like most things, can be appropriately worked out on a case-by-case basis with consensus of the parties. When disagreements occur, the judge can impose his own rules. In my experience, that is what happens anyway -- even when there are detailed statements of the rules. Judges often commit intentional error by ruling against the side they think is winning because such error is most likely to be considered "harmless" on appeal. Further, I have yet to meet a piece of "evidence" -- no matter how lousy -- that could not be appropriately dealt with through the mechanism of evidentiary weight rather than the mechanism of admissibility.
Secrets and privilege might be different. To that, I think that every avatar should have the right to stay silent on a point -- although the judge should have the right to find that silence meaningful. This is analogous to the way the exercise of the right of a person not to incriminate himself is handled in civil (but not criminal) trials in the U.S.
The problem with fashioning a system based on RL justice systems is that this is not RL, this is SL. SL involves many unique problems that don't come up when all the parties are located in Greenwich Mean Time, speak English, share cultural understandings and expectations, etc. In fact, no nation on earth has ever had to deal with all these problems, while at the same time having fewer than 100 citizens. Even when the sun never set on the British Empire, it certainly set on individual litigants, judges and courthouses. Fortunately, there was talent on the spot, in the time zone, to administer justice to parties who were also present on the spot.
Our problems here are both more simple than and different from RL problems. We need specially crafted solutions to these problems. We need real imagination of a kind that has been lacking in the Judiciary Act and its implementation, but that is present now through Justice's proposal.
I can already hear the criticism that this description violates the rule of law, but I have yet to see an analysis of the rule of law explaining why this is so. We have equality before the law. We have substantive consistency in law. What we do not have is a one-size-fits-all imposed procedure, but so what? Why do we want any such straight-jacket in the first place?
Beathan