Index ← 2382 CFJ 2383a 2383 → text
============================  Appeal 2383a  ============================


Panelist:                               woggle
Decision:                               OVERRULE/NOT GUILTY


Panelist:                               omd
Decision:                               AFFIRM


Panelist:                               G.
Decision:                               AFFIRM

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History:

Appeal initiated:                       25 Feb 2009 21:15:31 GMT
Assigned to woggle (panelist):          26 Feb 2009 18:21:14 GMT
Assigned to omd (panelist):             26 Feb 2009 18:21:14 GMT
Assigned to G. (panelist):              26 Feb 2009 18:21:14 GMT
G. moves to AFFIRM:                     26 Feb 2009 19:12:34 GMT
omd moves to AFFIRM:                    26 Feb 2009 19:59:53 GMT
Final decision (AFFIRM):                26 Feb 2009 20:19:58 GMT
woggle moves to OVERRULE/NOT GUILTY:    26 Feb 2009 20:19:58 GMT

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Gratuitous Arguments by G.:

Guilt here is admitted.  The defendant and prosecution
didn't give extenuating circumstances for higher or lower punishments.
The reformation of the sentencing rules generally implies that Silence
is the default (although this isn't set by precedent one way or the
other).  Also, while precedent holds that you can generally not pay
much too much attention to a SHOULD, it's uncertain whether you can
recklessly, knowingly, and flagrantly disregard a SHOULD without
breaching the Rules.  -G.

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Panelist G.'s Arguments:

I move to AFFIRM.  At issue is the precedent of what SHOULD means. Let me
make this clear:  In the absence of a confession, it is correct to always
assume reasonable doubt, and assume that a player gave some reasonable
thought to ignoring a SHOULD.  However, (a) for the SHOULD language to
have any meaning at all, it is reasonable to consider complete, utter
and knowing reckless disregard for a SHOULD as a breach and (b) it is
appropriate to take a defendant's confession of reckless disregard at
face value; we do not need to protect players from themselves.  -Goethe

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Gratuitous Arguments by G.:

On Thu, 26 Feb 2009, Ed Murphy wrote:
> Goethe wrote:
>
>> [Note: (not part of judgement) I assume we are judging on the
>> culpability rather than the sentencing here?]
>
> Correct, I explicitly appealed culpability.

Ok I certainly stand by Affirm then;  the place to take into
account Sgeo being silly is in sentencing or a sentence appeal
(e.g. considering discharge).  -g.

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Gratuitous Arguments by ais523:

If SHOULD as defined leads to an infinite regress, this does not mean
it's impossible to breach. To be legal, Sgeo would have had to read the
ruleset, or thought about reading the ruleset and decided not to, or
thought about thinking about reading the ruleset and deciding not to and
deciding not to, etc.. This is an infinite regress, but note that the
higher elements in it are so ridiculously convoluted that I'm not
certain humans are even capable of that level of indirected thinking. In
any case, even if there are an infinite number of ways to not break the
rule, that doesn't mean Sgeo didn't break the rule, if he met none of
those conditions. (Compare the Metagoracontractian Metareligion; the
whole concept of "contracts all the way down" was ridiculous, and ehird
was rightly seen not to have been obligated by the infinite chain.
Likewise, Sgeo cannot rely on an infinite chain of alternative
obligations here; in order to meet the SHOULD, then he either has to do
the task, or the rule-defined alternative, or the rule-defined
alternative to the rule-defined alternative, etc. It is not the case
that Sgeo platonically fulfils some sort of "obligation at infinity",
just as it was not the case with ehird's contracts.)

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Panelist omd's Arguments:

I move to AFFIRM.  I have not carefully weighed the full implications
of my failure to include arguments.

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Panelist woggle's Arguments:

I move to OVERRULE to NOT GUILTY. The definition of SHOULD in R2152 is
either recursive or uses the ordinary language "should" itself to
refer to the actual act of omission which the defendent has omitted.
The present-day ordinary language 'should' does not usually express a
requirement and is usually thus distinguished from 'shall'. The rules
use of 'ENCOURAGED' and 'RECCOMMENDED' as synonymous for 'SHOULD'
further suggests this interpretation. Indeed, the use of the word
'should' seems to be a deliberate weakening of the same language in
BCP 14 from which MMI is apparently derived ("the full implications
_must_ be understood...." [emphasis added]). In light of this, it is
not appropriate to interpret SHOULD as proscribing anything.

And even if the above were not the better interpretation, surely the
ambiguity on this matter would be sufficient to fail to satisfy
R1504's condition (d) "the Accused could have reasonably believed that
the alleged act did not violate the specified rule".

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Gratuitous Arguments by G.:

My issue here is that the defendant specifically and directly confessed
to it.  If e'd provided either a defense like yours or complete silence,
that would be fine - or at least enough for (d).  I think we need to
take such confessions at face value, or do you think it's a judge's
burden to decide when a defendant really "meant it"?  (And if so, isn't
that a matter for sentencing anyway?)  We generally accept, prima facie,
that what people say about unconfirmable matters (e.g. what they were
thinking at the time) is true.  And people should have the right to say
what they want, even self-damaging things; it's more harmful to the game
to say "I know you confessed, but we're going to ignore that".  -G.

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Gratuitous Arguments by woggle:

(d) deliberately does not care about what the defendent actually
thinks, only what e could have thought. Therefore, there is no reason
to consider the defendent's admission in deciding whether it is
acceptable.

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Gratuitous Arguments by G.:

Um, IIRC I wrote (d), and I beg to differ on it what it deliberately
cares about.  -G.

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Gratuitous Arguments by Murphy:

I agree that Sgeo did not meet any of the conditions, but the rules
don't clearly define failure to meet any of the conditions as being a
violation.  "SHOULD" is defined by Rule 2152, which also defines some
things that clearly pertain to violations (sections 2, 5, and 6) and
some other things that clearly don't (sections 1 and 4).  "should" is
loosely defined by Rule 2152, giving Rule 754 an opportunity to get
involved; ordinary-language definitions seem to run about 70% flat-out
obligation and 30% "obligation, propriety, or expediency" equally
weighted (except for order of appearance within a single clause).

Rule 2152 is based on RFC 2119, which defines SHOULD non-recursively
("the full implications must" etc.) and SHOULD NOT recursively ("the
full implications should" etc.).

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Gratuitous Evidence by Murphy:

http://www.merriam-webster.com/dictionary/should
http://dictionary.reference.com/browse/should

http://www.ietf.org/rfc/rfc2119.txt

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Gratuitous Arguments by Taral:

I noticed this too:

      6. MUST, SHALL, REQUIRED, MANDATORY:  Failing to perform the
         described action violates the rule in question.

      7. SHOULD, ENCOURAGED, RECOMMENDED:  Before failing to perform
         the described action, the full implications of failing to
         perform it should be understood and carefully weighed.

#6 explicitly says "violates the rule", and #7 makes no mention of
violating the rule. However, I interpreted this as a simple omission
-- a literal reading here results in a paragraph with no effect other
than on a meta-game level.

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Gratuitous Arguments by Murphy:

Which, as noted, is exactly how I intended #7 to operate.  (We have
other rules with even less significant effect.)  If the courts decide
otherwise, then so be it, but until then I'm not conceding the issue.

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Gratuitous Arguments by Taral:

The problem is that SHOULD is used for several important functions. I
read SHOULD as "should, unless you can justify yourself to a judge".

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Gratuitous Arguments by Sgeo:

As far as I remember, my confession was not that I violated a rule,
just that I failed to throughly consider the consequences of not
reading the ruleset during read the ruleset week.

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Gratuitous Arguments by omd:

This-- and e contested the NoV (as far as I can see, the only message
the defendant sent during the case!) with the following, which the
CotC probably should have included in the case history:

> I Contest this NoV on the basis that it is unclear whether it is
> possible to violate a SHOULD.

Whether or not someone confessing to breaking the rules should be
considered guilty prima facie, this isn't that case.  Goethe, if you
don't want the judge to have to look the case up, why did your proto
remove the pre-trial phase?

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