Idea: Create a Rules-defined "notice and comment" process for judgements.
Since I became active, there have been two judgements in CFJs about minor scams I attempted (3728 and 3833). The first one I had a minor quibble with, so I moved for reconsideration, but nobody bothered to support it. I think there's a bit of a stigma against supporting reconsideration, perhaps because it seems to suggest that the judge did a bad job. Adding to that is apathy: deciding whether to support reconsideration requires taking time to examine the original judgement and the counterargument, while ignoring it is free. Perhaps some people did examine my quibble and just decided it was bogus, but if so, nobody cared enough to make the point in writing. In the second one, as it turns out, I found every point to be completely reasonable and well-justified. Indeed, if someone else had tried the scam and I had been the judge, I might have reasoned similarly, though probably not as elegantly. (I wouldn't have attempted the scam if I didn't think it had a decent chance of being upheld as valid, but that's a lower standard than thinking it definitely should be.) Yet while I was reading the judgement, it occurred to me that it was making quite a lot of points that were now in some sense "set in stone" – deciding the case itself as well as setting precedent – without anyone having had the chance to critique them first. Of course, if I had had any objections I could have moved for reconsideration again, but the same stigma/apathy combo as before would likely be an obstacle, especially if my objections were minor. Which makes me wonder if we could change the rules to make judgements a bit more of an interactive process. Something like: - The judge files a proto-judgement; - There is a week (or maybe four days?) during which any other player can file a formal counterargument; - When the week passes, if there are no counterarguments then the judgement becomes final. If there are counterarguments, the judge has another week to publish an updated judgement which must briefly address each of them. There's no pressure for em to change eir outcome or reasoning if e doesn't find them compelling, but e should briefly explain why e disagrees. Comparing to the U.S. judicial system, judges do typically file written opinions without first circulating drafts, and they're free to include novel theories in those opinions which none of the parties had a chance to address. But in my understanding, they usually don't, largely because of a few differences: First, every real-world case has at least two parties who file thorough briefs arguing for their side and responding to the other side's arguments; collectively, the briefs tend to explore the issue thoroughly. In Agora, thanks to apathy (and the pay scale), CFJs often have only brief comments from the caller, or sometimes no arguments at all, by the time they get to a judge to rule on. Now, that's not the judge's fault. It's arguably the responsibility of all parties with a vested interest in a CFJ's outcome to file arguments in advance of judgement; personally, I'm not proud of neglecting to submit any arguments regarding either of the CFJs I mentioned before. Yet even when there is a decent amount of argument, it rarely gets anywhere close to the level of thoroughness with which lawyers address the issues in real-world cases, so it's inevitable that judges end up having to come up with more theories on their own. Second, real-world cases (at least the interesting ones) typically have oral argument before getting to the point of a written opinion. Especially in appellate court, but also in trial court when there are questions of law (rather than fact), this tends to involve the judge frequently interrupting the lawyers' arguments to ask questions, often pointed questions which amount to "how do you respond to argument X?". This effectively gives the judge an opportunity to try out eir reasoning on the lawyers before incorporating it into a written opinion. We don't have any equivalent of that. Third, binding precedents are only set by appellate court rulings, which are always decided by a panel of multiple judges, not just one. Fourth, since the real-world legal system has orders of magnitude more precedent, there just aren't many cases in the first place where the judge is expected to come up with a legal framework out of whole cloth, as opposed to deciding which of multiple competing precedents is most applicable to the circumstances, or how to apply a precedent to circumstances that are slightly different. So there's more of a roadmap as to what issues the judge is going to address. Anyway, I realized that while my idea is unlike the U.S. *judicial* system, it does resemble how notice and comment works in federal rulemaking. An agency first publishes a proposed rule; this starts a 30 to 180 day period during which interested parties can formally submit comments. When the period is up, the agency can publish a final version of the rule, accompanied by an analysis which is required to "respond in a reasoned manner to the comments received, explain how the agency resolved any significant problems raised by such comments, and to show how that resolution led the agency to the ultimate rule". [1] It need not address each comment individually (which may be infeasible, especially in rare cases like the FCC's net neutrality rules that received millions of comments!), but just go through the significant points raised by them. My outline above *does* require judges to address each counterargument individually(-ish), which is a bit different; I could change that, but on the other hand, such a requirement is much less burdensome in an Agoran context where having, say, 3 different players submit formal counterarguments would already be an extraordinary case. Oh, and... my proposed process would probably replace motions to reconsider, since it's more or less a motion to reconsider which anyone can file by announcement, but with more structure and hopefully less stigma. The Moot process would probably remain unchanged. Any thoughts? [1] https://administrativelaw.uslegal.com/administrative-agency-rulemaking/response-to-comment/
