Policy-Discussion

[Philipp Dunkel <p.dunkel AT cacert.org>]

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Philipp Dunkel
philipp AT dunkel.org
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Your reality and mine may not entirely coincide. Therefore you may not  
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On May 29, 2009, at 5:28, Kyle Hamilton 
<aerowolf AT gmail.com>
 wrote:

> On Thu, May 28, 2009 at 5:12 PM, Werner Dworak <werner AT wombaz.de>  
> wrote:
> > Hello Kyle,
> >
> > > In the US, at least, Congress absolutely refuses to take up any
> > > legislation on a topic if there is a court currently hearing it.
> >
> > I cannot imagine that this works. There are thousands of courts, so  
> > any
> > topic is allways pendig with some court and therefore this topic can
> > never be brought before the congress until doomsday.
>
> I just looked over my notes, and I misstated the case.  Congress will
> not address a topic that is currently before the Supreme Court (such
> as the recent case with California's medical marijuana laws and the
> constitutionality of federal searches/seizures of dispensaries
> operating under state law -- they don't want to waste their time with
> figuring out new regulations if the SC decides they can't regulate
> whatever it is anyway), but it might address issues related to cases
> in lower Federal courts (for instance, the publication of
> cryptographic code as a fundamental right of free speech on the
> Internet by Dr Bernstein -- which case was eventually "mooted", or
> "rendered moot", due to changes in the export laws).
>
> In CAcert's instance, if we looked at the policies as a bunch of
> written/legislated laws and the Arbitrators as the equivalent of the
> Supreme Court (since they are the ultimate Arbiters of disputes),
> we're still in the situation where juris prudence -- the ability of
> the judges to figure things out before they're rendered moot --
> demands that we let the Arbitrator make his decision on the current
> case before doing anything.
>
> (However: in the US, we also have the concept of 'open court', where
> barring entry to the proceedings or filings is not allowed except by
> order of the judge.  This allows people external to the issue to file
> amicus briefs -- briefs of possible wide-ranging effects that relate
> to them, as friends of the court --
Well isn't that what we are sort of doing here? Also I would not see a  
problem if someone decided to file an amicus brief to an arbitration.
> even when they're not actually
> involved in the litigation.  Since there are bylaws that state that
> future revisions of the policies must take Arbitrator decisions into
> account, we essentially have a situation where the crowd is proposing
> changes but a small number of Arbitrators will end up molding the
> system into what they want it to be.)
Not quite. The arbitrators are bound to policy as well. Also the  
policy list can pass a new policy that goes directly contrary to a  
prior arbitration.
Arbitrators should interpret the policies thereby refining them. They  
should not create policy.
Also if the community changes its collective mind about an issue it  
can change policy and ignore a previous arbitration.
> > And if with much luck a topic is pending nowhere, the Congress had to
> > pounce on it like a hawk before another court deals with it. But  
> > mostly
> > the Congress cannot be that fast, since it is occupied with other  
> > topics.
> >
> > So how does it work?
> >
> > In Germany there is no problem with changing laws. In civil cases,
> > allways the laws and treaties at time of deed rules. And in criminal
> > cases either the law at time of deed or at time of judgement rules,
> > dependig which is more favourable for the accused.
>
> "No ex-post facto law shall be passed."  It's a clause in the US
> Constitution, which means that no law that comes into effect later can
> modify the effect of the law at the time of the deed.
Actually afaik that only goes for criminal law.
> -Kyle H