Public consultation: judicial qualification requirements

[Diderot Mirabeau]

Beathan I sympathise with your brainstorming of alternative ideas for the selection of judges. Upon further ponderance it seems to me I would have to agree with Fernando's observation, which I presume to be along the lines of implying that the qualifications test is overly demanding and may well deter a few candidates, which would otherwise make good judges.

As I believe it falls upon the position of chief judge to decide which judge gets to sit on which case it seems to me that this degree of differentation makes it unnecessary to erect such high barriers to admission for the profession as the aptitude test could be said to constitute. Not all cases are of equal complexity and if the chief judge is of the impression that some judges are of less seniority and experience than others he may well factor this into his handing of cases to judges.

Let us not forget we are choosing judges on the basis of a talent pool of maybe 50 - 60 people from which we also need to derive a significant number of candidates for PJSP, juries and what have we not. The admission test would be worthy of a final examination from some British universities for example and they must be said to have had a far greater pool of talent from which to draw.

Personally I would prefer an admission procedure that is more tolerant of diversity in terms of professional and cultural background and experience and pays more emphasis on progression and learning on the job. It seems to me that approaches hinted at by both Beathan and Publius could be a step in that direction.

[Ashcroft Burnham]

[quote="Beathan":pxgd214p]Ordinarily, I oppose the popular election of judges. My State elects judges, and has many other populist institutions arising from the fact that our Constitution was written at the height of the American populist movement. Election of judges is problematic.

However, I think that popular election of judges -- and a requirement that judges stand for periodic reelection -- would work well with this democratic experiment of ours. The office of judge is potentially very dangerous and easily abused. It needs to be checked -- and elections do check it.

Alternatively, I would propose using a system like we have for selecting Federal judges. Federal judges would be proposed by the SC and confirmed by the RA. The RA would be free to ask whatever questions of the judge candidates that they believe to be appropriate at the time.[/quote:pxgd214p]

The way in which judges were appointed was the most hotly debated part of the whole judiciary proposal. The present system was arrived at as a compromise after a vast amount of very intensive debate, after it was recognised by the legislature that (1) that popular election of judges is extremely dangerous; (2) judges must have sufficient skill; and (3) that existing judges are the best placed to determine that skill. It would be wholly wrong to change it now, especially since the process of appointments has not taken its full course, and the dust has hardly settled on the Judiciary Act itself.

Furthermore, it is unclear why you think that judges being qualified ("proposed") by the Scientific Council and appointed ("confirmed") by the Representative Assembly is any better in your view than judges being qualified by the existing judiciary and appointed by the Public Judiciary Scrutiny Panel (or the Representative Assembly if there is no functional PJSP). Why is the Scientific Council in a better position to determine who is qulified for judicial office than the existing judiciary?

[quote:pxgd214p]Both these proposals seem far superior to me than the qualification crucible proposed by Ashcroft. First, these proposals are both simple but highly functional. Second, both proposals provide for flexibility in selection so that the requirements of selection comport with the needs at the time (rather than trying to anticipate all possible needs and building in many requirements that may be entirely superfluous to the actual performance of the office).[/quote:pxgd214p]

Which of the requirements listed in my set of qualification requirements do you think has any prospect of being truly superfluous to judicial office?

[quote:pxgd214p] Finally, both these proposals are functional and doable. The Ashcroft proposal strikes me as being more calculated to discourage others from applying for the position of judge than they are calculated to ensure qualified people fill those offices. [/quote:pxgd214p]

That is utterly unfounded and quite unfair. The system that I have put in place (it is not a mere proposal) is designed to ensure the highest possible quality of judicial applicants. Indeed, far from discouraging applicants to judicial office, I have done, and am continuing to do, all that I can to ensure that as many suitably qualified people as possible apply. I very much hope that you will be one of them. (I think that you would probably make an excellent judge). I certainly do not want to be the only judge for longer than necessary: it would be of great benefit to our system (and my workload!) to have multiple judges. However, I am extremely disturbed by the suggestion of any improper motive in compiling a thorough questionairre, especially since it is both untrue and not supported by any real evidence.

[quote:pxgd214p]These burdens might well be counterproductive, as the most qualified candidate might well be too busy in real life to complete the rather Herculean task set out.[/quote:pxgd214p]

That is why I have expressly permitted those who seek judicial office but have insufficient time to complete the questionairre in advance to apply for an extension of time. I hope that you will do this if you cannot complete the questionairre in time. Bear in mind also what is written at the beginning of the test about the word limits not necessarily being targets.

[quote:pxgd214p]I am also concerned about the bias in the questionaire. It calls for discussion of many concepts not current in American law. This might indicate a bias in favor of British applicants (assuming the concepts are active concepts in British jurisprudence). Such a bias is probably not appropriate for our community.[/quote:pxgd214p]

I am very concerned that there might be any bias towards applicants from one common law jurisdiciton over another. Can you tell me which questions that you think deal with concepts that you think are British-specific? Bear in mind, however, that one of the essential requirements of judicial office in an emergant legal system in a virtual world unconstrainted by national boundaries is the ability to work effectively with, pick up quickly, and sometimes even invent, hitherto wholly unfamilliar concepts. Much of the legal system as it stands now is quite different to [i:pxgd214p]any[/i:pxgd214p] real-world legal system (if it mirrored any one real-world legal system too closely, that itself would create a bias in favour not just of judges, but of litigants as and lawyers as well who come from that country).

[quote:pxgd214p]I would rather see judges appointed who have the dignitas and gravitas to do the job of judging without creating resentment in the parties to the case being decided. Frankly, this is more important for the social order and preservation of law and justice than any particular result is. In other words, I would rather have a judge who is wrong but even-keeled with good judicial affect and the kind of personality that inspires respect despite disagreement than a judge who always gets the correct result while alienating the litigants in the process. I'm not sure that the justice system could survive such justice.[/quote:pxgd214p]

Please look at the list of qualification requirements again. You will see, expressly set out under "fairness" and "clarity of expression" requirements that judges have just these qualities. (In my view, both the intellectual and tempremental qualifications are of equal importance, and that is how I will treat them). Those qualities are, of course, hard to assess in a written test. Bear in mind, however, that the qualification process is only one of two stages by which judges are appointed; the second is selection by either the Public Judiciary Scrutiny Panel, or the Representative Assembly. Unlike the Board of the Judiciary Commission, these bodies are not bound to appoint candidates by a set of written standards, and can, for example, interview the candidates, or subject them to an exercise involving a mock trial. Remember also that the point of the two-stage process was that the existing judiciary would judge judicial [i:pxgd214p]skill[/i:pxgd214p], and that the second stage of the process would filter applicants further. It is, therefore, perhaps only natural that the qualification stage should focus on the intellectual rather than the tempremental aspect of the ability to be a judge, leaving at least some of the selection on the latter basis to the final appointment stage (the point being that anybody with good judgment and common sense can judge the tempremental aspects, whereas the intellectual and specifically legal aspects need to be judged by those who have a specific connexion to law)

[quote:pxgd214p]Again, the Ashcroft proposal might well result in judges who have exceptionable ability to make correct decisions -- but it will exclude fine candidates at the outset and it does not seem reasonably calculated to select candidates who can judge well as well as judge correctly.[/quote:pxgd214p]

Both kinds of judgment are of equal importance. The original idea behind the current system was that the judiciary would judge the first, and the PJSP (or RA if there is no PJSP) the second. I have included what I can in relation to the second in the questionairre, but the PJSP/RA will still be in a position to judge those aspects for themselves when the qualified candidates are put before them for appointment (or not, as the case may be).

[Ashcroft Burnham]

[quote="Diderot Mirabeau":c9rzh24h]Beathan I sympathise with your brainstorming of alternative ideas for the selection of judges. Upon further ponderance it seems to me I would have to agree with Fernando's observation, which I presume to be along the lines of implying that the qualifications test is overly demanding and may well deter a few candidates, which would otherwise make good judges.[/quote:c9rzh24h]

Can you name a single part of the published qualification requirements that does not mean that the person possessing such a quality would make a better judge than a person not possessing that quality?

[quote:c9rzh24h]As I believe it falls upon the position of chief judge to decide which judge gets to sit on which case it seems to me that this degree of differentation makes it unnecessary to erect such high barriers to admission for the profession as the aptitude test could be said to constitute. Not all cases are of equal complexity and if the chief judge is of the impression that some judges are of less seniority and experience than others he may well factor this into his handing of cases to judges.[/quote:c9rzh24h]

As I have explained, because this is an emergant system, all judges sitting on any cases are likely to have to forge new precedents in ways that, in many cases, will be quite unpredictable at the stage that cases are allocated to judges. Our judges need to be [i:c9rzh24h]more[/i:c9rzh24h] qualified, intellectually, at least (although not as much in experience, especially since there has not [i:c9rzh24h]been[/i:c9rzh24h] very much in the way of our legal system [i:c9rzh24h]to[/i:c9rzh24h] experience), than many junior judges in real-life jurisdictions for this reason.

[quote:c9rzh24h]Let us not forget we are choosing judges on the basis of a talent pool of maybe 50 - 60 people from which we also need to derive a significant number of candidates for PJSP, juries and what have we not. The admission test would be worthy of a final examination from some British universities for example and they must be said to have had a far greater pool of talent from which to draw.[/quote:c9rzh24h]

This would only be a valid criticism if it turned out that fewer than two people ended up being qualified, and therefore meant that the qualification requirements might have been set too high to have the number of people we need. However, we will not know whether or not that is the case until the qualification process is complete. It is therefore wholly premature to make a criticism of this kind at this stage.

[quote:c9rzh24h]Personally I would prefer an admission procedure that is more tolerant of diversity in terms of professional and cultural background and experience and pays more emphasis on progression and learning on the job. It seems to me that approaches hinted at by both Beathan and Publius could be a step in that direction.[/quote:c9rzh24h]

Learning on the job is important, too, and I certainly plan to have ongoing training for judges, but, given what I have explained about the need for an emergent system to create many new precedents fast, it is also important that new judges hit the ground running. Also, whilst some things (legal knowledge, in particular) can be learnt, intellect, which is equally important, cannot. Furthermore, a judge must be expected to know the law, and therefore be able to research of her or his own initiative what the law is on any given point. That is part of what is being tested by this questionairre.

Finally, it is unclear precisely what you mean by being "tolerant of diversity". It is not intolerant of anybody to hold the position that some skills are necessary for being a good judge, even though not everybody has those skills. There is no intolerance involved in concluding that a given person would be unsuitable to be a judge because, for example, he or she does not have sufficient ability to parse the legal propositions from our legal texts. The great majority of people in general (both those in our community and otherwise) are not cut out to be judges (or accountants or doctors or scientists or teachers, etc.), but does not mean that they are any less valued and respected members of their community. We all have different skills: I, for example, would be a hopeless accountant and a third-rate architect because I lack mathematical and spacial skills. Is it really a meaningful criticism to make of an body or institution, whether in our virutal community or otherwise, that decides that I should not be appointed to an important public post involving architecture or accountancy that the appointment process lacks tolerance of people like me?

[Justice Soothsayer]

I share the concerns about the application process being too onerous for our small community, but I'm willing to wait to see if anyone applies. If the process doesn't work, I would certainly entertain the notion of changing it before the judiciary dies of its own weight.

[Diderot Mirabeau]

[quote="Diderot Mirabeau":bst6170i]Beathan I sympathise with your brainstorming of alternative ideas for the selection of judges. Upon further ponderance it seems to me I would have to agree with Fernando's observation, which I presume to be along the lines of implying that the qualifications test is overly demanding and may well deter a few candidates, which would otherwise make good judges.[/quote:bst6170i]

[quote="Ashcroft Burnham":bst6170i]Can you name a single part of the published qualification requirements that does not mean that the person possessing such a quality would make a better judge than a person not possessing that quality?[/quote:bst6170i]

That's not really the point here and your question seems to me to be better placed in the context of a trial lawyer's proceedings than in a civil, constructive discussion among fellow citizens of a community so why don't you reserve it for such occasions?

The point is that once again you aim for full-blown perfection in the first step rather than opting for learning on the go in direct contravention of your own stated conservative philosophy of stability and taking one step at the time. You furthermore believe it to be legitimate to brush off any criticism by using the rhetorical tactic of "we cannot know whether your criticism of my approach will be legitimate as we have not allowed my approach to work yet":

[quote:bst6170i]This would only be a valid criticism if it turned out that fewer than two people ended up being qualified, and therefore meant that the qualification requirements might have been set too high to have the number of people we need. However, we will not know whether or not that is the case until the qualification process is complete. It is therefore wholly premature to make a criticism of this kind at this stage.[/quote:bst6170i]

In fact your approach to selecting judges is based on the unwarranted assumption that there will be a great number of candidates with qualifications better than RL novice judges flocking at our doors to volunteer as judges presiding over cases to confirm the 427th banning of John R. Griefer at a monthly salary of 1,000L$ and that the challenge will be to sift the best from those who are only good.

I submit that the challenge will be much more along the lines of being open to interested citizens from the community that we have, involving them as judges and henceforth nurturing and fostering talent among them.

It would be truly a disaster if once your approach has been shown to yield not a single candidate sufficiently qualified a position will then be adopted that we really need to get this system running and there is no more time to try alternative approaches to recruiting candidates, which is why we must proceed with only one judge - who did not qualify through this method - sitting.

[quote="Ashcroft Burnham":bst6170i]As I have explained, because this is an emergant (sic) system, all judges sitting on any cases are likely to have to forge new precedents in ways that, in many cases, will be quite unpredictable at the stage that cases are allocated to judges.

Our judges need to be [i:bst6170i]more[/i:bst6170i] qualified, intellectually, at least (although not as much in experience, especially since there has not [i:bst6170i]been[/i:bst6170i] very much in the way of our legal system [i:bst6170i]to[/i:bst6170i] experience), than many junior judges in real-life jurisdictions for this reason. [/quote:bst6170i]

Let me answer this by citing your own words slightly paraphrased: We will not know whether or not that is the case until the qualification process is complete. It is therefore wholly premature to make an assumption of this kind at this stage.

There seems to be an inconsistency in your stance towards whether we can make qualified assumptions at this stage about future events? Or is it perhaps the case that you trust yourself to make such assumptions but not others?

[quote="Diderot Mirabeau":bst6170i]Personally I would prefer an admission procedure that is more tolerant of diversity in terms of professional and cultural background and experience and pays more emphasis on progression and learning on the job. It seems to me that approaches hinted at by both Beathan and Publius could be a step in that direction.[/quote:bst6170i]

[quote="Ashcroft Burnham":bst6170i]Learning on the job is important, too, and I certainly plan to have ongoing training for judges, but, given what I have explained about the need for an emergent system to create many new precedents fast, it is also important that new judges hit the ground running.[/quote:bst6170i]

You seem to want to persist with your assumptions about the requirements of judges to be able to handle altogether new and complicated cases even if at this stage we can know [i:bst6170i]even less[/i:bst6170i] about the nature of the cases that will arise than we can know about the available pool of talent of which I am making a qualified, comparative assessment.

[quote="Ashcroft Burnham":bst6170i]There is no intolerance involved in concluding that a given person would be unsuitable to be a judge because, for example, he or she does not have sufficient ability to parse the legal propositions from our legal texts.[/quote:bst6170i]

This statement is - like so many others - based on the assumption that there is some objectively verifiable standard of being able to parse legal propositions from legal texts.

I submit that deduction and inference of the implications and propositions of a legal text and the precedence of its enactment is subject to legalistic interpretation, which is a hermeneutic exercise in which the relevance of particular claims and evidence is weighed and determined on a backdrop of judicial tradition, norms and schools of thought.

The parsing of legal propositions does not take place in a vacuum as the result of an objective, analytical exercise but rather is shaped by the individual's participation in formal and informal fora where norms and standards are developed and debated. There is thus not an objective standard for the assessment of anyone's skills in legalistic interpretation but rather a larger community of diverse opinion, which can nevertheless most often form a critical mass of "current majority opinion" on the basis of an inter-subjective understanding.

If all lawyers reached the same decision upon being exposed to the same evidence and relevant portion of law then how would it be possible to have lawyers representing both sides in a case - it would by such logic be assumed that at least one of them must be lying to himself?

By selecting our judges now we are in the middle of the process of debating who should be the prime movers in creating such a forum for debate on legalistic interpretation. I claim that for a community such as ours opinions on this topic may well be valuable even if they are not based on a strict knowledge of judicial procedure, terminology or precedence, since a small community needs more someone who is skillful in closing conflicts in a way that will not be divisive or alienating to the community than one, who is an expert in reaching his verdicts through the application of strictly formal judicial method and in the process alienating or seperating the parties to the case even further.

[quote="Ashcroft Burnham":bst6170i]Is it really a meaningful criticism to make of an body or institution, whether in our virutal community or otherwise, that decides that I should not be appointed to an important public post involving architecture or accountancy that the appointment process lacks tolerance of people like me?[/quote:bst6170i]

I have just submitted that the legal profession to a higher degree than the professions you mention as examples deals with administering a community's current understanding of justice in the interpretation of the evidence of a case in relation to the claims made by the parties to the dispute. Justice is a concept which to a larger extent than company accounts and building construction allows for the incorporation of the wisdom of laymen and public opinion in its manifestation. For example a society may well try to decide that only one pillar is needed to hold a cathedral but the cathedral will implode regardless of public opinion. A similar critical dependance on ontological reality is not evident in the question of whether the concept of justice entails administering the death penalty for certain types of offenses for example or in deciding whether evidence obtained in violation of certain codes of formalia can be admitted before the court. Different opinions on this can both be encompassed within the concept of justice and I submit that his holds true in a broader sense which is why it is mistaken to claim that people applying to become a judge should approach the concept of justice purely from the viewpoint of being "better qualified than an RL junior judge".

[Fernando Book]

[quote="Ashcroft Burnham":10lnn5rq]Are you trying to make a point? If so, what is it?[/quote:10lnn5rq]
Since these forums are the nearest thing to a free press we have (with all my respect to [i:10lnn5rq]The democrat[/i:10lnn5rq]) I thought it would be a good thing to separate the facts from the opinion and to let people know the general tone of the questionnaire.

Now, these are my points.

Answering the questionnaire would take around 7,000 words (using, and I know these are arbitrary figures, the 50% of the target in short answers, and 75% of the target in the long ones). This is a very long essay, the same length of our [url=http://www.aliasi.us/nburgwiki/tiki-ind ... 1:10lnn5rq]Judiciary Act.[/url:10lnn5rq]
In a sim that doesn't know the meaning of 'simple', the questionnaire is of a unusual complexity, and it lacks any proportionality to the foreseeable tasks the judiciary will perform. What our Chief Judge is doing with the judiciary qualifications is something similar as requiring the in-world builders to have some degree to ensure their buildings are not going to collapse.
We can ask ourselves, and answer in a honest way: how many money am I going to risk in a in-world judiciary instead of going to the real world police and judges? One hundred euros/dollars? Two hundred?
So I don't see any of our judges solving those "significant commercial cases" Justice Soothsayer writes about and that will need, if we keep this pace, professional judges, lawyers, [i:10lnn5rq]amicus curiae[/i:10lnn5rq], juries, ushers, stenotypists and a wig hairdresser. I'm quite sure that we won't receive cases in which their monetary amount balances the costs for the state. Because, remember, we are going to found citizens eager to play without compensation or at a minimum cost any of this parts, but only as long it is fun.
I can imagine our judiciary solving in-CDS political or parapolitical cases (say, about the interpretation of the citizenship requirements or the right to vote) and cases concerning to the application of our covenants and related laws. In the breaches of contract cases that are the hope of the judiciary, our judiciary will work as an alternative dispute resolution in the real world, and I suppose that, in the most part, in consumer related cases of the type "this animation doesn't move my avatar the way it's supposed to do". In RL would we consider it as a breach of contract or a consumer complaint?
Will it be enough, following again Justices Soothsayer's post, a "tribal chieftain sitting on a stool in the middle of the Forum"? Well, the image of a kind of [i:10lnn5rq]Lord of the flies[/i:10lnn5rq] in [i:10lnn5rq]lederhosen[/i:10lnn5rq] or togas is very attractive and I think that will be enough to most of our cases.

[quote="Ashcroft Burnham":10lnn5rq]Why is the Scientific Council in a better position to determine who is qulified for judicial office than the existing judiciary? [/quote:10lnn5rq]
At this moment, and having you recognized that one friend of yours is going to be an applicant (as you have announced it is a sign you have nothing to hide), I see the SC in a better position to evaluate the candidates. The anonymisation of the questionnaires doesn't prevent you from knowing, as you read the forms, who is American, who is British and who hasn't English as mother tongue, or even who is a determined person, if you know how he or she writes.

[quote="Ashcroft Burnham":10lnn5rq]I am very concerned that there might be any bias towards applicants from one common law jurisdiciton over another.[/quote:10lnn5rq]
So you can imagine how am I concerned about a bias towards applicants from common law jurisdictions over civil law jurisdictions.

One of the better things of living in a democracy is that it provides you some protection about people trying to fulfil their utopias. Aren't we going to set up some kind of judicial utopia in the CDS?

[Ashcroft Burnham]

[quote="Fernando Book":p96wn6x1]Answering the questionnaire would take around 7,000 words (using, and I know these are arbitrary figures, the 50% of the target in short answers, and 75% of the target in the long ones). This is a very long essay, the same length of our [url=http://www.aliasi.us/nburgwiki/tiki-ind ... 1:p96wn6x1]Judiciary Act.[/url:p96wn6x1]
In a sim that doesn't know the meaning of 'simple', the questionnaire is of a unusual complexity, and it lacks any proportionality to the foreseeable tasks the judiciary will perform. What our Chief Judge is doing with the judiciary qualifications is something similar as requiring the in-world builders to have some degree to ensure their buildings are not going to collapse.[/quote:p96wn6x1]

This is a seriously flawed metaphor. Architecture in SecondLife is vastly different (and vastly easier) to architecture in real life. In SecondLife, there is no concept of structure: the buildings [i:p96wn6x1]cannot[/i:p96wn6x1] fall down. As long as they are the right shape and have the right textures, they suffice. There is no need to consider the types of building materials, the kinds of joints used, the sort of stress that tall buildings might have in the wind, how the building will withstand rain, how the plumbing should be organised, and so forth. It requires some artistic and design skill, and ability to work with the SecondLife interface, and perhaps some understanding of how people interact with spaces in SecondLife to do well, but, overall, thetask is inherently radically different, and far easier than real-life architecture.

That is not so with a judicial system. There is nothing about the fact that it is a judicial system for SecondLife that makes the functions that a judicial system inherently seeks to perform radically simpler. Whilst there are fewer kinds of things to have legal disputes about, the remaining sorts of things (harassment, breach of contract, intellectual property, real property, etc.) raise just as many complex and intellectually challenging issues as they do in the first life.

Law is about the application of rules to govern human behaviour. The complexity comes from the inherent complexity of human behaviour, and the inherent complexity of the interface between that behaviour and rules that can be parsed by humans. The fact that humans are interacting through a virtual world on a bank of servers somewhere in California does not make the slightest difference to those factors.

[quote:p96wn6x1]We can ask ourselves, and answer in a honest way: how many money am I going to risk in a in-world judiciary instead of going to the real world police and judges? One hundred euros/dollars? Two hundred?
So I don't see any of our judges solving those "significant commercial cases" Justice Soothsayer writes about and that will need, if we keep this pace, professional judges, lawyers, [i:p96wn6x1]amicus curiae[/i:p96wn6x1], juries, ushers, stenotypists and a wig hairdresser. I'm quite sure that we won't receive cases in which their monetary amount balances the costs for the state. Because, remember, we are going to found citizens eager to play without compensation or at a minimum cost any of this parts, but only as long it is fun.
I can imagine our judiciary solving in-CDS political or parapolitical cases (say, about the interpretation of the citizenship requirements or the right to vote) and cases concerning to the application of our covenants and related laws. In the breaches of contract cases that are the hope of the judiciary, our judiciary will work as an alternative dispute resolution in the real world, and I suppose that, in the most part, in consumer related cases of the type "this animation doesn't move my avatar the way it's supposed to do". In RL would we consider it as a breach of contract or a consumer complaint?
Will it be enough, following again Justices Soothsayer's post, a "tribal chieftain sitting on a stool in the middle of the Forum"? Well, the image of a kind of [i:p96wn6x1]Lord of the flies[/i:p96wn6x1] in [i:p96wn6x1]lederhosen[/i:p96wn6x1] or togas is very attractive and I think that will be enough to most of our cases.[/quote:p96wn6x1]

All of this is mere speculation, and quite unfounded. The judiciary that was designed very carefully, and debated at great length before being implimented, was designed to be far more than a tribal chieften dispensing rough justice to unsophisticated tribespeople about where their virtual goats may graze. It was designed to regulate the affairs of an entire and expanding virtual nation, which hopes to be able to bring enforcable contracts to SecondLife, among other things. The latest entry in [url=http://gwynethllewelyn.net:p96wn6x1]Gwyneth's 'blog[/url:p96wn6x1] suggests that it may also be very useful in the future in dealing with intellectual property violations.

The reality is that enforcement is exceptionally difficult between parties in SecondLife. If one can find them at all, and work out which legal system applies to a transaction, and then work out how to use that most probably foreign jurisdiction, and then find a way of enforcing its judgments, one will be very lucky indeed, and the cost of attempting to do so is likely to be thousands of times greater than the value of all but the most extremely high-value commercial transactions. All of this was remarked upon by Professor David Post, whose interview on BBC Radio 4's Law in Action [url=http://news.bbc.co.uk/1/hi/programmes/l ... m:p96wn6x1]programme[/url:p96wn6x1] a few weeks ago, in which he commented that he expected there to be legal systems developing in SecondLife very soon, lead to me being interviewed in the following week's programme about our legal system.

In a state of uncertainty (we cannot be sure exactly who will be using our legal system, and for what), it is always better to do as the Victorian civil engineers did, and over-engineer, rather than under-engineer. Why should our legal system not more resemble the Maidenhead viaduct than the first Tay bridge? It is far better that a legal system (or, indeed, [i:p96wn6x1]any[/i:p96wn6x1] system) exceeds present needs than that it transpires to be inadequate.

In any event, provided that there are, in fact, enough sufficiently skilled judges to fulfil the number of available vacancies, what complaint could possibly properly be made that the requirements are too stringent? As things stand, it looks like we have some very talented people interested in applying.

Finally, you write that being a judge needs to be "fun". "Fun" suggests something that is frivolous and lighthearted, but there are many more ways in which things can be rewarding than by being fun. Working as a judge in a judicial system of a virtual world will definitely be rewarding, in an intellectual sense, but not in a frivolous and light-hearted way. That does not mean, however, that those who are judges will not also be able to have fun engaging in other community activities in the CDS that are in part made possible by the stability created by a well-ordered and properly functioning judicial system.

[quote:p96wn6x1]At this moment, and having you recognized that one friend of yours is going to be an applicant (as you have announced it is a sign you have nothing to hide), I see the SC in a better position to evaluate the candidates. The anonymisation of the questionnaires doesn't prevent you from knowing, as you read the forms, who is American, who is British and who hasn't English as mother tongue, or even who is a determined person, if you know how he or she writes.[/quote:p96wn6x1]

That is why I have specifically asked the Scientific Council to replace all instances of US English spellings on the completed applications with international English spellings. This is easily done with a spell checker. As to people whose first language is not English, I have already addressed that issue in response to a post by Chicago above. What is ultimately a speculative possibility of me finding out, despite rigorous anonymisation, which of the questionairres has been submitted by the person whom I know in real life is a wholly insufficient basis upon which to make a radical change to the constitutional structure for the recruitment of the judiciary.

[quote:p96wn6x1]So you can imagine how am I concerned about a bias towards applicants from common law jurisdictions over civil law jurisdictions.[/quote:p96wn6x1]

I have explained before that, since the CDS [i:p96wn6x1]is[/i:p96wn6x1] a common law jurisdiction, by deliberate choice, for good, practical reasons, an understanding of how common law systems work is not a mindless prejudice, but a genuine qualification requirement. Of course, it is perfectly possible for a person who lives in a civil law country to learn how common law systems work, so a person is not precluded from being a judge in our nation by the mere fact of her or his country of origin.

[quote:p96wn6x1]One of the better things of living in a democracy is that it provides you some protection about people trying to fulfil their utopias. Aren't we going to set up some kind of judicial utopia in the CDS?[/quote:p96wn6x1]

We are trying to set up a working judiciary. A working judiciary is one in which the judges are sufficiently skilled. A nation whose judiciary is presided over by incompetent judges is positively dystopic.

[Fernando Book]

[quote="Fernando Book":pkjchs70]What our Chief Judge is doing with the judiciary qualifications is something similar as requiring the in-world builders to have some degree to ensure their buildings are not going to collapse.[/quote:pkjchs70]

[quote="Ashcroft Burnham":pkjchs70] This is a seriously flawed metaphor. Architecture in SecondLife is vastly different (and vastly easier) to architecture in real life. In SecondLife, there is no concept of structure: the buildings cannot fall down. (...)Law is about the application of rules to govern human behaviour. The complexity comes from the inherent complexity of human behaviour, and the inherent complexity of the interface between that behaviour and rules that can be parsed by humans. The fact that humans are interacting through a virtual world on a bank of servers somewhere in California does not make the slightest difference to those factors.
[/quote:pkjchs70]

Seeing the law as a way to govern human behavior is a pretty interventionist way of defining the law. Law has nothing to do with anyone's behavior, but with the relationships between persons. And relationships are quite different in SL and RL. Anonymity, lack of responsibility, sense of playing instead of living (and we must remember we are playing, maybe like inside a game, maybe like inside a stage play) are not here, as in real life, exceptional situations, but the nature of the world.

[quote="Fernando Book":pkjchs70]We can ask ourselves, and answer in a honest way: how many money am I going to risk in a in-world judiciary instead of going to the real world police and judges? One hundred euros/dollars? Two hundred?
So I don't see any of our judges solving those "significant commercial cases" Justice Soothsayer writes about and that will need, if we keep this pace, professional judges, lawyers, amicus curiae, juries, ushers, stenotypists and a wig hairdresser. (..) I can imagine our judiciary solving in-CDS political or parapolitical cases (say, about the interpretation of the citizenship requirements or the right to vote) and cases concerning to the application of our covenants and related laws. In the breaches of contract cases that are the hope of the judiciary, our judiciary will work as an alternative dispute resolution in the real world, and I suppose that, in the most part, in consumer related cases (...)
Will it be enough, following again Justices Soothsayer's post, a "tribal chieftain sitting on a stool in the middle of the Forum"? Well, the image of a kind of Lord of the flies in lederhosen or togas is very attractive and I think that will be enough to most of our cases.[/quote:pkjchs70]

[quote="Ashcroft Burnham":pkjchs70]All of this is mere speculation, and quite unfounded. The judiciary that was designed very carefully, and debated at great length before being implimented, was designed to be far more than a tribal chieften dispensing rough justice to unsophisticated tribespeople about where their virtual goats may graze. It was designed to regulate the affairs of an entire and expanding virtual nation, which hopes to be able to bring enforcable contracts to SecondLife, among other things. (...)
The reality is that [real life] enforcement is exceptionally difficult between parties in SecondLife. (...)
In a state of uncertainty (we cannot be sure exactly who will be using our legal system, and for what), it is always better to do as the Victorian civil engineers did, and over-engineer, rather than under-engineer. Why should our legal system not more resemble the Maidenhead viaduct than the first Tay bridge? It is far better that a legal system (or, indeed, any system) exceeds present needs than that it transpires to be inadequate.

In any event, provided that there are, in fact, enough sufficiently skilled judges to fulfil the number of available vacancies, what complaint could possibly properly be made that the requirements are too stringent? As things stand, it looks like we have some very talented people interested in applying.
[/quote:pkjchs70]

Yes, this is unfounded speculation, as unfounded and as speculative as any other prediction about our future.

One problem is that the judiciary we have designed will be prone (in order to justify its existence) to treat the virtual goats cases as a Toyota vs. Reuters case.

Yes, real life enforcement of Second Life conflicts is "exceptionally difficult", but, to-day, is not more difficult than second life enforcement. We will be able to judge only those who want to be judged, and we will be able only to settle differences of opinion: a virtual criminal or fraudster (even a 1,000 L$ one) has enough means to fly our jurisdiction without leaving anything to us.

Over-engineering can be a good practice given you have a good design and enough iron and concrete to spare. Have we enough material to over-engineer our judiciary? If you have seen how the weight of trains increases in the past years is reasonable to foresee that tendency will continue, and design a bridge for the future trains. But building a highway without knowing if the automobile is going to be invented, and if invented, are they going to use our highway is, using Sartre's words a "useless passion".

[quote="Ashcroft Burnham":pkjchs70]Finally, you write that being a judge needs to be "fun". "Fun" suggests something that is frivolous and lighthearted, but there are many more ways in which things can be rewarding than by being fun. [/quote:pkjchs70]

The opposite to fun is not seriousness, but boredom. And I didn't write only about judges, I wrote about anyone participating in the process (except, obviously, the litigants). Everyone must enjoy his role.

[quote="Ashcroft Burnham":pkjchs70]What is ultimately a speculative possibility of me finding out, despite rigorous anonymisation, which of the questionairres has been submitted by the person whom I know in real life is a wholly insufficient basis upon which to make a radical change to the constitutional structure for the recruitment of the judiciary. [/quote:pkjchs70]

Th SC is going to anonymise a 7,000 words essay, not a 100 questions test with fixed answers. Anonymisation, despite the SC efforts, is, at least, questionable. Second, if there's only one application form, and it's that of your friend, his identity will be revealed. Third, the mere fact of a friendship is a good ground for recusation or abstention in any selection process for the Civil Service anywhere. That's the reason selection committees are usually composed of several members.

And finally, an observation. We are requiring 28 days of residence before a citizen can cast his vote, but we don't have any problem to give a lifetime job as judge to a resident who comes into the CDS to get the job.

[Ashcroft Burnham]

[quote="Fernando Book":3rtucure] Seeing the law as a way to govern human behavior is a pretty interventionist way of defining the law. Law has nothing to do with anyone's behavior, but with the relationships between persons. And relationships are quite different in SL and RL. Anonymity, lack of responsibility, sense of playing instead of living (and we must remember we are playing, maybe like inside a game, maybe like inside a stage play) are not here, as in real life, exceptional situations, but the nature of the world.[/quote:3rtucure]

Your understanding of the nature of law is seriously flawed. Law is, by [url=http://plato.stanford.edu/entries/legal ... /:3rtucure]its nature[/url:3rtucure], a set of rules governing human behaviour. I also note that nowhere in what you write above do you provide any specific reasoning to support the proposition that the particular differences (which you do not specify) between first and SecondLife relationships mean that law is capable of being anything other than vastly complex. Without such reasoning, your argument is wholly unfounded.

[quote:3rtucure]Yes, this is unfounded speculation, as unfounded and as speculative as any other prediction about our future.[/quote:3rtucure]

So, you are criticising what I am doing on what you admit is no basis at all? How is that honest?

[quote:3rtucure]One problem is that the judiciary we have designed will be prone (in order to justify its existence) to treat the virtual goats cases as a Toyota vs. Reuters case.[/quote:3rtucure]

More vague and unfounded speculation. If you have genuine arguments, why do you need to make bad points like this? If you have no genuine arguments, why are you posting at all?

[quote:3rtucure]Yes, real life enforcement of Second Life conflicts is "exceptionally difficult", but, to-day, is not more difficult than second life enforcement. We will be able to judge only those who want to be judged, and we will be able only to settle differences of opinion: a virtual criminal or fraudster (even a 1,000 L$ one) has enough means to fly our jurisdiction without leaving anything to us.[/quote:3rtucure]

I have already explained in detail on many occasions how enforcement works here. A vague and unsubstantiated assertion to the contrary is, without more, a non-argument.

[quote:3rtucure]Over-engineering can be a good practice given you have a good design and enough iron and concrete to spare. Have we enough material to over-engineer our judiciary? If you have seen how the weight of trains increases in the past years is reasonable to foresee that tendency will continue, and design a bridge for the future trains. But building a highway without knowing if the automobile is going to be invented, and if invented, are they going to use our highway is, using Sartre's words a "useless passion".[/quote:3rtucure]

You have conflated two quite distinct points, and in doing so have entirely missed the point that I was making in the first place. The Victorians over-engineered their bridges not because they had any specific reason to believe that the trains were going to get any heavier, but because they had no reliable way of knowing what the weakest structure was that could safely perform the functions that any given structure needed to perform was (because their engineering was not sophisticated enough), and so had to approach their structural design with a wide margin of error. You are assuming that our judiciary is over-engineered, and yet you have already admitted that you have no way of measuring what degree of engineering is required. The point always has been that, since we do not know for sure what our judiciary will need to do, it is always better, in the absence of further infromation, to give it a wide margin of error, and work on the assumption that it may have to deal with a great deal, since it is far better to have a system with too much capacity than with too little, especially since we most certainly [i:3rtucure]do[/i:3rtucure] have the "spare steel and concrete" in the form of numerous talented people who are interested in being judges and lawyers in our jurisdiction.

[quote="Ashcroft Burnham":3rtucure]The opposite to fun is not seriousness, but boredom. And I didn't write only about judges, I wrote about anyone participating in the process (except, obviously, the litigants). Everyone must enjoy his role.[/quote:3rtucure]

My point was that "fun" is not the only form of enjoyment. One can enjoy something by virtue of its being rewarding other than by being frivolous and lighthearted. If your state of being is such that, at any given moment, you are either bored or having fun, then your experience of life is sadly lacking.

[quote="Ashcroft Burnham":3rtucure]Th SC is going to anonymise a 7,000 words essay, not a 100 questions test with fixed answers. Anonymisation, despite the SC efforts, is, at least, questionable.[/quote:3rtucure]

More arbitrary speculation.

[quote:3rtucure]Second, if there's only one application form, and it's that of your friend, his identity will be revealed.[/quote:3rtucure]

I am expecting at the very least two people to apply. If I have only one form, it will mean that one of the people whom I am expecting to apply has not applied. It would be no less likely that the person whom I know in real-life was the person who did not apply than some of the other people here.

[quote:3rtucure]Third, the mere fact of a friendship is a good ground for recusation or abstention in any selection process for the Civil Service anywhere. That's the reason selection committees are usually composed of several members.[/quote:3rtucure]

You must not forget that what I am undertaking is a qualification process, not a selection process. I do not select who shall be a judge: I select who is qualified to be a judge. The PJSP selects who shall be a judge from the list of qualified candidates. When determining who is qualified, I qualify all those who pass a fixed standard, not just the best two. Anonomysation is considered sufficient for university examinations, and there is no reason why this should be any different.

[quote:3rtucure]And finally, an observation. We are requiring 28 days of residence before a citizen can cast his vote, but we don't have any problem to give a lifetime job as judge to a resident who comes into the CDS to get the job.[/quote:3rtucure]

That is true of all state positions: our current Public Information Officer, for instance, became a citizen specifically in order to be the PIO, and was somebody known personally to Aliasi, our chancellor. The 28 day rule on voting is to prevent electoral corruption by influx of citizens; that is an irrelevant consideration when determining who shall fill state offices.

[Justice Soothsayer]

[quote="Ashcroft Burnham":qmt0ve44]The 28 day rule on voting is to prevent electoral corruption by influx of citizens; that is an irrelevant consideration when determining who shall fill state offices.[/quote:qmt0ve44]

I voted in favor of the rule requiring one to be a citizen not just because it is a tool to deter "electoral corruption", but also because it makes sense to me to require citizenship for sufficient time to absorb our unique governmental systems before voting. I'd also support a citizenship requirement for our public officials, and would think long and hard before voting to confirm a lifetime (even Second Lifetime) appointee who has only just joined our community.

[Ashcroft Burnham]

[quote="Justice Soothsayer":10zl1uwn]I voted in favor of the rule requiring one to be a citizen not just because it is a tool to deter "electoral corruption", but also because it makes sense to me to require citizenship for sufficient time to absorb our unique governmental systems before voting. I'd also support a citizenship requirement for our public officials, and would think long and hard before voting to confirm a lifetime (even Second Lifetime) appointee who has only just joined our community.[/quote:10zl1uwn]

As far as I am aware, none of the people interested in applying for judicial positions have been citizens for at least 28 days. One good reason not to have the 28 day rule for holders of public office is that, otherwise, many public offices for which there are willing and able candidates might go unfilled, either for up to 28 days, or permanently if the willing and able candidates lost interest in the meantime.

[Ashcroft Burnham]

Technical error lead to double post.

[Aliasi Stonebender]

[quote="Ashcroft Burnham":w1m0x1lc]
Your understanding of the nature of law is seriously flawed. Law is, by [url=http://plato.stanford.edu/entries/legal ... /:w1m0x1lc]its nature[/url:w1m0x1lc], a set of rules governing human behaviour. I also note that nowhere in what you write above do you provide any specific reasoning to support the proposition that the particular differences (which you do not specify) between first and SecondLife relationships mean that law is capable of being anything other than vastly complex. Without such reasoning, your argument is wholly unfounded.
[/quote:w1m0x1lc]

I see your legal positivism and raise with [url=http://en.wikipedia.org/wiki/Natural_law:w1m0x1lc]natural law theory[/url:w1m0x1lc].

Sorry, not a direct reply, simply being frivolous.

[Beathan]

I am interested in applying for one of these positions. However, I have not yet made up my mind and I am still evaluating the qualification materials. Elsewhere, I have expressed my concerns about them.

I see that there is a concern about the 28-day rule, which many people want to see applied to judicial applicants. This concern is a sound and proper one. However, I think this concern can be easily handled.

Ashcroft's proposal is to qualify, not appoint, applicants. I see no reason not to qualify applicants who do not yet meet the 28-day rule for full citizens. Such candidates, who have been pre-qualified, can then be appointed after they have been fully enfranchised.

Beathan[/quote]

[Ashcroft Burnham]

[quote="Beathan":2ghkbfov]Ashcroft's proposal is to qualify, not appoint, applicants. [/quote:2ghkbfov]

Function, surely, not proposal? It is what I am doing, not just what I propose to do.