Re: DIS: Proto: Formalized Precedent

[Aris Merchant]

On Wed, Apr 4, 2018 at 11:36 PM Gaelan Steele  wrote:

> Wow, thanks for taking the time to write this—it’s really interesting and
> I think you have a lot of valid points. (Side note: interesting to see it
> from a British perspective. My understanding of American law is that we
> still operate under the “precedent is perfect” idea, which may have
> influenced my thinking in this proposal.) I’m still of the opinion is that
> precedents aren’t a good long-term solution, though. One of my early ideas
> for this was just giving each judgment a free Official Proposal (with a
> SHOULD) to fix the hole, but I think I was worried that would lead to a
> bloated ruleset; maybe that would be a good middle ground.


Sure, you're welcome. I don't think the American system is actually that
different from the British one in this regard. We are very reluctant to
overturn a case, but that's true in Britain too. It's because both systems
are common law (the precedent is part of the body of the law, and is in
itself binding) rather than civil law (judicial cases merely interpret
laws, and have no precedential value). Stare decis is highly respected, but
old cases are occasionally overturned (e.g. Brown vs. Board of Education
overturned Plessy vs. Ferguson; Obergefell v. Hodges overturned Baker v.
Nelson). I think your free official proposal idea is worth a shot. If used
carefully, it shouldn't bloat the ruleset too much. I'd suggest allowing
the judge to use it on someone else's proposal as well if it resolves the
issue of the case or related ambiguities/bugs, so that if someone else
rights up a clarification they don't have to pend it. For most cases
though, an annotation is probably sufficient.

>
> I guess I’m still not sure what the answer is. I don’t like
> non-binding-but-probably-not-going-to-change precedent, but I’m not sure
> codifying everything is better.


I know the feeling. Case-by-case codification of good or long-accepted
precedents is probably the way to go though.


> (Interesting side note: I don’t think this would work for Agora, but
> BlogNomic’s CfJs are literally just proposals that fix the rules and clean
> stuff up—I guess they just leave the original ambiguity unresolved and fix
> it going forward? It’s a weird concept for me.)


That seems confusing to me too. It does make a lot more sense for
BlogNomic, which is more gameplay-focused and dynamic, than Agora, which is
more meta-focused and static.

You didn't comment on my proposed annotation model. As a former Rulekeepor,
do you think it would work?

-Aris

>
> > On Apr 4, 2018, at 9:58 PM, Aris Merchant <
> thoughtsoflifeandligh...@gmail.com> wrote:
> >
> > Gaelan, first, thanks for the interesting proposal. I disagree with it
> > for several reasons:
> >
> > First, there are some minor (fixable) technical problems in the
> > proposal itself. An instrument doesn't nessicarily do anything, except
> > perhaps alter or create a rule, and even that is kind of uncertain
> > because of ambiguities in the phrasing of the relevant rules. You
> > really want it to be a textual entity with certain powers.
> >
> > Second, there are systemic problems with the idea behind the proposal.
> > The first one is the textual expression of the Clarifications. Because
> > they need to be self-contained, unlike an annotation, the judge might
> > be forced to write a rather long explanatory segment in the
> > clarification. This could greatly increase the length of FLR. The
> > Rulekeepor would also be unable to make edits to the Clarifications,
> > since they would have the force of law.
> >
> > Most importantly, I'm concerned that this would limit the development
> > of our precedents. Currently, old precedent can be forgotten or
> > changed. Judges can easily innovate and rule that longstanding
> > precedents are no longer relevant, or need to be revised in light of
> > changed practice or context. This law reminds me of the House of
> > Lords' ruling in London Tramways Co. v London County Council, where
> > they declared previous precedent absolutely binding, even if it
> > created "injustice" and "unduly restrict[ed] the proper development of
> > the law". They overruled that precedent by fiat in the Practice
> > Statement, because they realized that it meant that a bunch of bad and
> > outdated rulings stayed around, and that they were generally trying to
> > pretend that they were infallible, which they were not. [1] I know
> > that we can always pass a proposal to overturn a ruling, but we are
> > unlikely to do so most of the time. This stops judges from revising
> > past ideas to create new precedent, and in that way takes a lot of the
> > fun out of the judicial system. We simply don't have a problem where
> > people routinely ignore rulings they disagree with, without seeking a
> > new ruling or attempting to change the rules.
> >
> > The CFJ is system is an accepted part of the meta-game, where it does
> > its job flexibly and well. 

Re: DIS: Proto: Formalized Precedent

[Kerim Aydin]

On Wed, 4 Apr 2018, Aris Merchant wrote:
> I might favor some
> carefully implemented system of injunctions or judicial orders that
> allowed judges to remedy the short term harm caused by a
> misunderstanding or rule violation...

It took an incredibly complex (read: "very carefully implemented"
system to implement it and almost every time it was used it caused
cascading CFJs about the validity of the judicial orders, if you're
interested, check out the section on Orders in this ancient ruleset:

https://mailman.agoranomic.org/cgi-bin/mailman/private/agora-official/2002-November/57.html

Re: DIS: Proto: Formalized Precedent

[Gaelan Steele]

Wow, thanks for taking the time to write this—it’s really interesting and I 
think you have a lot of valid points. (Side note: interesting to see it from a 
British perspective. My understanding of American law is that we still operate 
under the “precedent is perfect” idea, which may have influenced my thinking in 
this proposal.) I’m still of the opinion is that precedents aren’t a good 
long-term solution, though. One of my early ideas for this was just giving each 
judgment a free Official Proposal (with a SHOULD) to fix the hole, but I think 
I was worried that would lead to a bloated ruleset; maybe that would be a good 
middle ground.

I guess I’m still not sure what the answer is. I don’t like 
non-binding-but-probably-not-going-to-change precedent, but I’m not sure 
codifying everything is better.

Gaelan

(Interesting side note: I don’t think this would work for Agora, but 
BlogNomic’s CfJs are literally just proposals that fix the rules and clean 
stuff up—I guess they just leave the original ambiguity unresolved and fix it 
going forward? It’s a weird concept for me.)

> On Apr 4, 2018, at 9:58 PM, Aris Merchant 
>  wrote:
> 
> Gaelan, first, thanks for the interesting proposal. I disagree with it
> for several reasons:
> 
> First, there are some minor (fixable) technical problems in the
> proposal itself. An instrument doesn't nessicarily do anything, except
> perhaps alter or create a rule, and even that is kind of uncertain
> because of ambiguities in the phrasing of the relevant rules. You
> really want it to be a textual entity with certain powers.
> 
> Second, there are systemic problems with the idea behind the proposal.
> The first one is the textual expression of the Clarifications. Because
> they need to be self-contained, unlike an annotation, the judge might
> be forced to write a rather long explanatory segment in the
> clarification. This could greatly increase the length of FLR. The
> Rulekeepor would also be unable to make edits to the Clarifications,
> since they would have the force of law.
> 
> Most importantly, I'm concerned that this would limit the development
> of our precedents. Currently, old precedent can be forgotten or
> changed. Judges can easily innovate and rule that longstanding
> precedents are no longer relevant, or need to be revised in light of
> changed practice or context. This law reminds me of the House of
> Lords' ruling in London Tramways Co. v London County Council, where
> they declared previous precedent absolutely binding, even if it
> created "injustice" and "unduly restrict[ed] the proper development of
> the law". They overruled that precedent by fiat in the Practice
> Statement, because they realized that it meant that a bunch of bad and
> outdated rulings stayed around, and that they were generally trying to
> pretend that they were infallible, which they were not. [1] I know
> that we can always pass a proposal to overturn a ruling, but we are
> unlikely to do so most of the time. This stops judges from revising
> past ideas to create new precedent, and in that way takes a lot of the
> fun out of the judicial system. We simply don't have a problem where
> people routinely ignore rulings they disagree with, without seeking a
> new ruling or attempting to change the rules.
> 
> The CFJ is system is an accepted part of the meta-game, where it does
> its job flexibly and well. This proposal formalizes rulings at the
> level of the game, which is something I might be okay with if done
> properly (it has been done in the past). But this formalizes the part
> of the opinions least in need of formalization, their meta-game
> precedential value. The reason we trust our judicial system is,
> paradoxically, that its rulings don't do anything. No one has a reason
> to falsify a ruling, because they know that the ruling relies on the
> acceptance of the players for its implementation. I might favor some
> carefully implemented system of injunctions or judicial orders that
> allowed judges to remedy the short term harm caused by a
> misunderstanding or rule violation, but I cannot approve of an
> iron-clad formalization of the value of precedent that doesn't solve
> an existing problem and creates new ones by limiting the ability of
> judges to change past precedent. I understand (and appreciate) that
> what you're trying to do with this proposal is to formalize something
> that is currently fluffy and non-binding, but there are some aspects
> of the meta-game which work precisely because they are in the
> meta-game, rather than the game itself, and which thus must not be
> formalized. This is one of them.
> 
> However, I agree that their should be some requirement for the
> Rulekeepor to track annotations. What I would suggest instead that
> Rulekeepor, as part of eir weekly duties (monthly if that's more
> convenient), be required to publicly make a statement on any
> annotations submitted to em. E could either reject 

Re: DIS: Proto: Formalized Precedent

[Aris Merchant]

Gaelan, first, thanks for the interesting proposal. I disagree with it
for several reasons:

First, there are some minor (fixable) technical problems in the
proposal itself. An instrument doesn't nessicarily do anything, except
perhaps alter or create a rule, and even that is kind of uncertain
because of ambiguities in the phrasing of the relevant rules. You
really want it to be a textual entity with certain powers.

Second, there are systemic problems with the idea behind the proposal.
The first one is the textual expression of the Clarifications. Because
they need to be self-contained, unlike an annotation, the judge might
be forced to write a rather long explanatory segment in the
clarification. This could greatly increase the length of FLR. The
Rulekeepor would also be unable to make edits to the Clarifications,
since they would have the force of law.

Most importantly, I'm concerned that this would limit the development
of our precedents. Currently, old precedent can be forgotten or
changed. Judges can easily innovate and rule that longstanding
precedents are no longer relevant, or need to be revised in light of
changed practice or context. This law reminds me of the House of
Lords' ruling in London Tramways Co. v London County Council, where
they declared previous precedent absolutely binding, even if it
created "injustice" and "unduly restrict[ed] the proper development of
the law". They overruled that precedent by fiat in the Practice
Statement, because they realized that it meant that a bunch of bad and
outdated rulings stayed around, and that they were generally trying to
pretend that they were infallible, which they were not. [1] I know
that we can always pass a proposal to overturn a ruling, but we are
unlikely to do so most of the time. This stops judges from revising
past ideas to create new precedent, and in that way takes a lot of the
fun out of the judicial system. We simply don't have a problem where
people routinely ignore rulings they disagree with, without seeking a
new ruling or attempting to change the rules.

The CFJ is system is an accepted part of the meta-game, where it does
its job flexibly and well. This proposal formalizes rulings at the
level of the game, which is something I might be okay with if done
properly (it has been done in the past). But this formalizes the part
of the opinions least in need of formalization, their meta-game
precedential value. The reason we trust our judicial system is,
paradoxically, that its rulings don't do anything. No one has a reason
to falsify a ruling, because they know that the ruling relies on the
acceptance of the players for its implementation. I might favor some
carefully implemented system of injunctions or judicial orders that
allowed judges to remedy the short term harm caused by a
misunderstanding or rule violation, but I cannot approve of an
iron-clad formalization of the value of precedent that doesn't solve
an existing problem and creates new ones by limiting the ability of
judges to change past precedent. I understand (and appreciate) that
what you're trying to do with this proposal is to formalize something
that is currently fluffy and non-binding, but there are some aspects
of the meta-game which work precisely because they are in the
meta-game, rather than the game itself, and which thus must not be
formalized. This is one of them.

However, I agree that their should be some requirement for the
Rulekeepor to track annotations. What I would suggest instead that
Rulekeepor, as part of eir weekly duties (monthly if that's more
convenient), be required to publicly make a statement on any
annotations submitted to em. E could either reject the proposed
annotation as unnecessary and explain why, accept it, or (and this may
not need to be an option other than accept) make changes to it and
then accept it. Then we could put in place a requirement that the
Rulekeepor "SHALL make a reasonable attempt to maintain relevant
judicial annotations in the FLR", or something to that effect. The
idea would be that the Rulekeepor could drop or edit an annotation
whenever it seemed appropriate, but could not, say, refuse to put any
annotations in the FLR.

Again, thank you for the proposal. It was quite thought provoking.

-Aris

[1] My source for all of this is
https://en.wikipedia.org/wiki/Practice_Statement

On Tue, Apr 3, 2018 at 12:00 AM, Gaelan Steele  wrote:
> Proto:
>
> A Clarification is a type of instrument that always has 0.1 power. A 
> clarification may only clarify existing rules, and may not have any 
> functionality not already provided by a reasonably plausible interpretation 
> of a rules; any other functionality is INEFFECTIVE. [Maybe: remove this 
> sentence to avoid crazy meta-CFJs, letting the Moot system handle bad 
> Clarifications?] The Rulekeepor SHALL include the text of all Clarifications 
> in the Full Logical Ruleset, and SHOULD list them near relevant rules.
>
> When submitting a nontrivial 

DIS: Proto: Formalized Precedent

[Gaelan Steele]

Proto:

A Clarification is a type of instrument that always has 0.1 power. A 
clarification may only clarify existing rules, and may not have any 
functionality not already provided by a reasonably plausible interpretation of 
a rules; any other functionality is INEFFECTIVE. [Maybe: remove this sentence 
to avoid crazy meta-CFJs, letting the Moot system handle bad Clarifications?] 
The Rulekeepor SHALL include the text of all Clarifications in the Full Logical 
Ruleset, and SHOULD list them near relevant rules.

When submitting a nontrivial judgment of TRUE, FALSE or PARADOXICAL, a judge 
CAN and SHOULD propose the text for one or more Clarifications. Once a 
Judgement has been in place for more than seven days without being entered into 
Moot, or has been entered into Moot with a result of AFFIRM or FAILED QUORUM, 
Clarifications are created with the specified text.

Any player may destroy a Clarification Without Objection, and SHOULD do so if 
it becomes irrelevant.

—

This is pretty similar to the annotations we already had on old FLRs, but given 
force and a legal requirement for the Rulekeepor to keep track of them. After 
this is in effect for a while, it might be worth getting rid of the current 
informal precedent system (in the form of a suggestion of how to judge CFJs).

Gaelan