Due Process, Introduction To Voluntary Law (Book), Voluntary Law

Due Process and Judgments

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Due process is at the heart of any legal system. It is what differentiates the rule of law from the arbitrary exercise of power, requiring legal process as a precondition to all coercive actions to restore property, exact revenge or punish damnable behavior. Voluntary law shares this basic attribute with idealized statist legal systems. It differs from statist legal systems in how due process is defined. Lacking any central authority, definition of due process in voluntary law emerges out of the power and responsibility of each individual to publish their chosen law. Failures to apply due process are recognized by comparison to minimum standards that are defined by the participants in the voluntary system.

For most civil dispute resolution, and absent an undue amount of meddling by governments, due process is easy. As due process provided by government courts has often failed to meet public demands, for those litigants able to afford alternatives, numerous private organizations have sprung up to provide it. Such market-based arbitration services have created their own rules for due process, directed at resolving disputes using a form of legal process agreeable to their clients. At least for clients possessing comparable economic power in the market for arbitration services, such privately made and voluntarily accepted rules for legal process are deemed fair and efficient.

Disputants under voluntary law are no less free to select a particular resolution service or set of private rules in advance of a dispute arising, for example as part of a contract. In other cases, litigants may elect to submit non-contractual disputes to private process, for various reasons. Resources for private due process already exist in many places, which are capable of resolving disputes under voluntary law, and willing to do so, for a fee. Voluntary law members may make use of these existing resources. The rules under which a case is decided make no difference to a private arbitrator. The private judge is as happy to decide the case under the rules of Mickey Mouse as under California law. The California courts may treat a private judgment rendered under the law of Mickey Mouse differently from one purporting to comply with California law, or may regulate private judges, but these aspects concern coexistence with state law, and are subjects for a different chapter.

A bit of housekeeping: this book refers to a voluntary law judge (or in the broad sense, a panel of judges) as a “jurist,” and a state-regulated private judge (or panel of judges) as an “arbitrator.” These labels are a bit “arbitrary” – pardon the pun – and merely serve to make distinctions when necessary. There is nothing to prevent a jurist from also being an arbitrator, or an arbitrator from also being a jurist; but not always at the same time. In a thriving voluntary law ecosystem, a great many jurists will not be arbitrators; some may choose to be.

Jurists are by definition ruling only on the published choices of the litigants, outside of state-based laws, and may be assigned to different judicial tasks depending on the applicable due process rules. For example, some jurists may operate more like a common-law judge, overseeing courtroom procedure and leaving the development of evidence and legal theories to the competing parties or their advocates. Others may operate more like civil-law investigative judges. Still others may operate more as mediators or peacemakers. Some may resemble or act as members of a jury. There are no particular constraints beyond the choices and expectations of the participants and other stakeholders, economic factors in the marketplace for judicial services, and basic elements of due process. New and more efficient ways of fairly resolving disputes may be developed and flourish in the environment of freedom from central authority that voluntary law provides. On the other side of the coin, the lack of central authority and established laws governing due process creates risk at the early stages of voluntary law development that should be recognized and managed.

Whatever task they are performing, jurists operate under rules determined entirely by the community of voluntary law members whom the jurists serve, without deviating from voluntary law. Accordingly, a state or other authority can have no power to determine who may, or may not, act as a jurist, or what due process under voluntary law must consist of. When a jurist breaks voluntary law to comply with a state or other collectively-determined law, she is no longer acting as a jurist, but as an arbitrator. If the jurist is able to rule on a case while complying both with voluntary law and with applicable state laws, any distinction between arbitrator and jurist is without a difference.

When the defendant and claimant agree on the choice of jurist, and do not contest the propriety of the process used by the jurist to arrive at a judgment, due process is easy. The voluntary choices of competent litigants are simply respected, without question. Not every case will be so easy. Problems arise when the litigants do not agree on the selection of a jurist or legal process, either because of disagreement or some mental incompetency. This chapter suggests some solutions to these fundamental problems of jurisdiction, venue and conflict of due process rules, which are not inconsistent with the basic principles of voluntary law. Other problems arise when a litigant alleges that the jurist was not neutral, did not follow the agreed process or erred in application of the law, and therefore arrived at an improper judgment. These problems are treated in the next chapter on juristic quality and appeal. Some less fundamental aspects of due process, for example, justice for the poor and judgment on unopposed claims, are discussed in Chapter Six.

Due process in the context of voluntary law raises distinctly different issues than due process under territorial governments. Unlike territorial monopolies on governments, participants in voluntary law systems need not be unduly concerned with protection of litigants from the overwhelming monopoly power of the state. Instead of struggling over what the definitive, proper standard of due process should be for government, voluntary law societies must deal with the question of how to deal with conflicting standards for procedural due process, and members’ failure to specify a standard.

Much has been written about procedural due process under statist models. The present introduction can neither fairly cover that legal landscape, nor begin to fully develop the even richer possibilities under voluntary law. Within the more limited scope of this introduction, a list of procedural due process elements by a respected statist judge makes for a worthy comparison. Federal Judge Henry Friendly once provided such a list: a unbiased tribunal; a notice of proposed action and grounds asserted for it; an opportunity to present reasons why the proposed action should not be taken; the right to present evidence, including the right to call witnesses; the right to know opposing evidence; right to cross-examine opposing witnesses; the right to a decision based exclusively on the evidence presented; an opportunity to be represented by counsel; a record of the evidence presented, and written findings of fact and reasons for the decision, prepared by the tribunal; a right of appeal; and at least for criminal trials, a right of public attendance. Henry J. Friendly, “Some Kind of Hearing,” 123 U. Pa. L Rev. 1267, 1310-11 (1975). Whatever the merits of such lists, they depend on beliefs that state-organized tribunals acting on matters of state interest can be unbiased, and that a state monopoly over judicial process is either desirable or necessary.

That is, those who place trust in state sovereignty assume that the first item in the list – neutrality – can be provided by authority of the state, at least if made sufficiently responsive to public opinion. Statists therefore are prone to busy themselves with identifying and debating the factors that procedural due process entails, and which the state should purport to implement uniformly. Indeed it is not hard to think of other items to add to such a list, and debate the exact form such factors should take. For example, factors such as a right to a jury trial, statement of applicable law, a convenient forum, a source of law independent of the tribunal, might be added to Judge Friendly’s list, in some form or another. However long or detailed such a list becomes, in actual practice each item is tainted beyond repair by bias in the tribunal. If the tribunal is biased, all other factors become mere props in a theatrical display for providing an appearance of due process where it cannot possibly exist. Naturally, no mechanism is better suited for ensuring that bias is inserted into due process, than one in which all right and authority, including judicial authority, is centralized in a monopolistic actor. Such centralization and subjugation of judicial authority to a central power source guarantees that the judges thereby empowered will never rule against whatever source grants them their power. The more centralized state judicial power becomes, the less neutrality can possibly be exercised, and the more fruitless theoretical discussions of due process factors are rendered.

On the other hand, if the tribunal is truly unbiased, wise in the understanding of applicable law, and seeking to do justice according to it, the tribunal may be trusted to flexibly adopt whatever due process tools serve the interests of the case. In the hands of a competent and neutral jurist, lists of due process factors are merely items in a flexible toolset for quality control. The particular tools in the toolset may vary from case to case, depending on the preferences of the parties. Voluntary law imposes no particular requirements on due process other than that a publicly discoverable set of rules is defined for just resolution of conflicting laws in the context of any arbitrary dispute, based principally on the content of the laws that are in conflict, and the times at which adopted by the parties to the dispute. This law of conflict resolution applies to differences in standards for procedural due process, just as with substantive rights. Similar balancing principles, such as TROTWET, may be called into service, to deal with cases where the parties adhere to different rules of procedural due process. These principles are subject to a special precondition: just adjudication in every instance requires a neutral jurist competent to apply the applicable substantive and procedural laws, and determine what the evidence shows. The jurist cannot be biased or arbitrary. The law must be applied in a neutral and reasonable manner, or it is no law at all.

Fortunately, voluntary law maximizes the chances that adjudication will be both neutral and competent, by denying particular grants of judicial authority to any person or collective. Instead, any person desiring to be recognized as a jurist must earn a reputation for neutrality and competence in the application of law, by serving the needs of litigants in an open market. This open market is highly regulated by its openness to all providers, lack of entrenched market positions, and transparency provided by sharing of reputational information among law enforcers and litigants. Jurists who are unable to settle disputes efficiently and render durable judicial opinions are quickly flushed out by and replaced by more competent jurists. By definition, voluntary law prohibits any capture of the market for legal services, and by enforcing competition in the market for juristic services provides a reasonable basis for assuming, in the general theoretical case, that a sufficient supply of neutral and competent jurists will be available.

Therefore, the main due process issues in voluntary law arise out of conflicts between due process rules of disputants, and cases wherein one or both disputants fail to adopt any cognizable due process rule. To solve these problems logically, the significance of personal adoption of rules for legal process, in a legal system lacking central authority to establish due process rules, must first be understood. Consistent with personal sovereignty and voluntariness, a person adopting a particular set of due process procedures is telling other users of voluntary law what minimum process she will follow when prosecuting her own claims, and what she will likewise accept as sufficient if exercised against her. She cannot dictate to another what process must be followed when prosecuting a claim against her. Such dictatorial powers would undermine voluntariness, as expressed by the principle of Defendant’s Law introduced in the preceding chapter. The question for conflict of due process scenarios therefore boils down to this: what is the significance of judgment rendered after some due process that is less than acceptable to the defendant? What are the risks to persons enforcing such judgments? What difference does it make if the defendant has cooperated in the hearing of a case according to due process rules other than her own, without expressly waiving objections to the process used?

First and foremost, how can a claimant avoid all the uncertainty and headaches posed by these questions? Quite easily. Simply follow the defendant’s choice of due process rules, if she has made one prior to initiation of the action. If she has not made any choice, and if she will not agree to a reasonable process of law for resolving the dispute at hand, follow a standard set of rules that are conventional for persons in the circumstances of the defendant, based on the advice of a neutral and respected jurist. Do either of these, and avoid serious challenges to the desired judgment on due process grounds.
The defendant cannot hold others to a higher standard than he holds himself. That’s an expression of the No-Hypocrisy principle. Therefore any person who expects to ever find himself in the position of claimant will take care not to adopt overly-onerous due process rules. Even if restrictive due process rules are later abandoned in favor of a more liberal, prosecution-friendly set of rules, any hint of opportunism in the change will taint the changeling’s reputation and right to use the more liberal rules. If there has been any detrimental reliance by a defendant on a claimant’s prior adoption of stricter due process rules, the claimant cannot justly exploit any benefit of the more liberal rules against a defendant. In the usual case, there is no such benefit to be had from one’s own rules when pursuing a claim anyway, because it is defendant’s due process rules that receive priority consideration.

Moreover, a claimant who ignores his own stated due process rules to prosecute a case against another with more liberal due process rules blatantly commits a foul of hypocrisy, which will render any resulting judgment unenforceable. The principle of No-Hypocrisy cannot be ignored for due process rules without throwing the dispute resolution system into imbalance. These imbalances include encouraging any who are likely to be claimants and unlikely to be defendants to adopt overly restrictive process rules, at little personal risk. The imbalances further include requiring different process rules to be followed in cases involving cross-complaints where the parties have adopted different rules. If the No-Hypocrisy principle is applied, both the complaint and the counter-complaint will be decided under the more restrictive set of process rules, in a sort of TROTWET outcome. If the No-Hypocrisy principle is not applied, the claim and counter-claim are made subject to different and perhaps even conflicting process rules, raising difficult if not insoluble complexities for jurists, parties, and anyone who must evaluate the validity of the resulting judgments. These imbalances should be avoided.

Application of the No-Hypocrisy principle to due process rules does, however, raise the question of who should pay for the incremental cost of following a claimant’s more demanding due process rules, in cases where the defendant has adopted laxer rules. The answer is clearly and justly the defendant, because it is the defendant in this situation who holds the power to waive the claimant’s process rules and allow use of a less rigorous process. The defendant will make such waivers when she perceives the waiver to be in her own best interest. For example, if the stakes are not too high and the risks of losing are considerable, she may waive application of the No-Hypocrisy principle and allow a less expensive process to be followed, to reduce her exposure to litigation costs. Conversely, if the stakes are high and the risk of loss uncertain, and she therefore chooses to hold the claimant to claimant’s own higher standard, it is just to hold her responsible for resulting costs, if she loses despite the more rigorous process.

Voluntary law, resting as it does on recognition of the person as the sole and exclusive moral justification for sovereignty, demands foremost consideration to restitution over other forms of justice. Although restitution is not necessarily the exclusive principle of justice in voluntary law, an injured claimant cannot be restored to her original state without it. Nor can one negligently accused recover his losses unless the burden of legal process is shifted to the losing claimant. If only for the purposes of the present chapter, it may be assumed that in the general case, the loser will pay the process costs. More thorough treatment of “loser pays” has been done elsewhere and its application within voluntary law deserves more detailed consideration than can be given in an introductory book. It is mentioned here as a general principle of restitutionary justice that comes into play when considering balancing of conflicting due process rules. It is not presently proposed as an unbendable rule for all cases, whether or not such status is deserved. On the contrary, cost-shifting rules such as “loser pays” are well within the voluntary power of each person to choose.

Faced with the costs of overly protective due process rules as outlined above, the only reasonable people who will adopt extremely protective due process rules are those who know, or firmly believe, that they will never need to bring an action against another, nor will ever lose a suit brought by another and thereby be responsible for the costs of suit. Such persons will either be those who, for spiritual reasons, renounce all legal process and material possessions; or those whose extra-legal powers are so great that they see no need to follow any legal process, ever. Both such classes of persons will be outlaws by nature, and will not bother with the niceties imposed within voluntary legal systems, least of all subscribing to elaborate defensive process rules.

On the other hand, the voluntary law member who adopts overly non-protective due process rules is taking on risk with no commensurate benefit. Imagine, for example, a standard that appoints the claimant as sole jurist and requires submission by all defendants who cannot prove the falsity of the claim by verified video records. Such a person is declaring “open hunting season” on himself, at least by anyone with similarly lax process rules. In return, the only benefit received is the ability to pursue similarly litigious people in a sort of feeding frenzy. There may be a few people who enjoy this sort of high-adrenaline existence. If such people exist, their adoption of very loose standards will keep them well occupied litigating against each other. Their loose rules will provide them no benefit when bringing a claim or defending against a claim by another with more reasonable rules, under the principle of Defendant’s Rule.

There is, however, a great benefit to a person for adopting process rules that are efficient as well as just. Doing so will enable the person to waive more restrictive process when in the position of defendant it is prudent to do so, to avoid exposure to excessive litigation costs. Meanwhile, the efficient process is also available when pursuing a claim against others with similarly sensible rules. Care needs to be taken that justice is not sacrificed to efficiency, but voluntary systems will reward selection of just and efficient process rules, and allow development and discovery of such process rules through an environment of unrestricted innovation. This innovation will undoubtedly limit the ability of legal service providers to generate unnecessary fees. Such an outcome would be an unmitigated good. Economic and “game theory” pressures will tend to drive most people to adopt process rules that are believed just and efficient. These rules may be fairly sophisticated, and allow for different processes to be used for different types of cases – in a sort of analogy to distinctions between civil and criminal procedure in statist legal systems.

Selection of a jurist and forum for resolution of a dispute are aspects of due process rules. Voluntary law members will be discouraged from specifying overly narrow conditions for selection of a jurist and forum, lest they be held to those conditions when pursuing others, under the No-Hypocrisy rule. A further disincentive is provided by the same social pressures applicable to public adoption of substantive laws: members will not want to mark themselves as overly difficult to deal with. Overly lax requirements will likewise be avoided, for the same reasons as overly lax process rules. Exactly which requirements should apply to jurist and forum selection are unknown, and are free to develop and evolve under the same pressures favoring fairness and efficiency as other due process rules. Nonetheless, it is interesting to contemplate what transpires when claimant and defendant cannot agree on a selection of jurist or forum, whether or not the disagreement is reasonable. There are two basic situations: first, the claimant selects a jurist or forum that does not reasonably comply with the applicable process rules. A competent jurist will not willingly accept the case under such conditions, as it would sully the jurist’s reputation to render a judgment that is facially invalid. Second, the claimant selects a jurist or forum that does reasonably comply with the applicable process rules, and the defendant unreasonably objects. In the second case, a competent jurist will dispose of unreasonable objections, and preserve the validity of the process. In the first case, it may sometimes happen that no jurist or forum is available to hear a case. In such cases, the claimant may publish the claim and wait for the market to provide a suitable jurist and venue. There can be little doubt that current and prospective legal service providers would monitor published claims carefully, and rush to satisfy any substantial market demands.

Despite market pressure towards juristic economy, conflicts between process rules may nonetheless arise in the “great middle” between conflicting parties with different cultural or practical beliefs about what constitutes fair and efficient justice. The task of evaluating different process rules may therefore not infrequently fall to a voluntary law jurist. If defendant and claimant cannot otherwise agree on a set of due process rules to follow, the jurist must examine the different rules brought by each, and determine which of these is the more burdensome to claimant and more protective of defendant.

In many cases, protective burden may be directly correlated to economic cost. For example, three jurists are more protective than one, and about three times more expensive. Proof beyond a reasonable doubt is more protective than preponderance of the evidence, and more expensive to prove. Lengthy and complex discovery rules are more protective, and also more expensive. It is difficult to think of more protective practical rules that are less expensive than laxer counterparts. Consider some impractical counter-examples: suppose one rule states that three jurists be used, all of whom must be unpaid volunteers, and the conflicting rule requires only one jurist and is silent regarding payment. In that case, the rule specifying one jurist is less burdensome, even if payment is made, because the example as stated does not require that the jurist under the second rule be paid. Supposing the second rule requires a minimum payment to the jurist, the answer is less clear.

These are the sorts of questions that may be analyzed and argued by professors in the law schools of the future, if voluntary law is ever adopted in a widespread manner. Entire schools of thought may develop to resolve these questions. Or not; perhaps these problems in practice will be few and readily solved, due to social and economic pressures for adoption of reasonable due process rules, a tendency for parties in conflict to agree on ad hoc process rules in most cases, or for other reasons. Nonetheless, the basic approach of adding up and comparing the total economic costs of different due process rules has an appealing simplicity and practicality that may encourage its use to resolve conflicts in process rules. Detailed approaches can and perhaps should wait for actual cases, before being developed much further. Conflict of process rules is peculiar to voluntary law, and there are few or no close analogs in traditional systems, which consistently apply the process of the forum claiming jurisdiction over the dispute. Therefore, new approaches will need to be developed to satisfy the demands of voluntary law.

Having considered an overall scheme for resolving conflicts between process rules in some detail, let us revisit the questions posed earlier in the chapter. What is the significance of judgment rendered after some due process that is less than acceptable to the defendant? Under the rule of Defendant’s Law, such judgments are not valid, presuming that “less than acceptable” means “not compliant with defendant’s publicly adopted process rules.” What are the risks to persons enforcing such judgments? If the non-compliance is or should have been apparent to the enforcer, the enforcer will be liable for negligently or maliciously enforcing a facially invalid judgment. What difference does it make if the defendant has cooperated in the hearing of a case according to due process rules other than her own, without expressly waiving objections to the process used? If the defendant has had an opportunity to object to the process followed, and has not raised any objection, this might or might not be considered as equivalent to express waiver, depending on local juristic customs or the stated voluntary law of the defendant. If the customs or stated laws clearly require an express waiver of defendant’s process rules, the claimant who proceeds without obtaining such waiver does so at his own peril.

What about failures to adopt any due process rule?  If the defendant has neglected to specify any due process standard, it is much more difficult for her to reasonably complain about being subjected to a legal process not too her liking.  If both parties have neglected to adopt any due process rules, they will have to agree on a process for resolving the dispute at hand, or forgo access to a legal resolution.  Virtually everybody will adopt default process rules, once these realities are understood.  There is no reason not to.  If the failure is due to some mental disability, this is a special case.  Treatment of mentally disabled people is discussed in Chapter Six, but the solution lies along the lines of delegating legislative power for the disabled person to an advocate, such as a parent, spouse, guardian, or partner, capable of adopting an appropriate law on the disabled person’s behalf.

To summarize, the power to accept or reject due process rules remains within the sovereign power and responsibility of each person, under voluntary law. Expert jurists may sometimes develop and promote due process rules, and may even require their customers to accept their rules as a condition of hire in particular cases. Nonetheless, due process law remains within each individual’s sovereign power. This power, exercised in a decentralized unencumbered free exchange of laws and legal services, may be expected to lead to development of more just and efficient processes for administration of justice.

Standard
Conflict of Laws

Unopposed Claims and Legitimacy of Judgments

Kristin with Rat Small

A Claim With No Defendant

The conflict of law rules developed thus far depend mainly on the status of the parties as claimant (plaintiff) or defendant in determining which law to apply.  Usually, this approach works.  In every case, there is always somebody to request a judgment.  So if “claim” is defined broadly as “a request for judgment,” there is always a claimant.  And there is usually a defendant to oppose the claim.

However, some legal actions exist in which there is no person to oppose the claim.  Some examples include declarative actions such as adoption, conservatorship, guardianship, emancipation of a minor; the probating of a decedent’s will; and claims to confer title over unclaimed property.  Such claims may sometimes be opposed by someone other than the defendant; for example, a person acting in the the “public interest.”  In other cases, no opposition exists.  Absent some check, the ability to select the law applied in cases with no opposition would give claimants free rein.  Also, if there is an opponent but no identifiable defendant, should the opponent automatically be regarded as the defendant for purposes of choice of law?

In authoritarian legal systems, it is the responsibility of the designated authority to ensure that unopposed claims are well-regulated, and if necessary, opposed by a representative of the state.  In so regulating, state interest is paramount, typically followed by special interests and thirdly, public interest.  Lacking any imposed authority to oppose claims, must adjudicating forums in voluntary law societies grant all unopposed claims?

Clearly not, in a superficial sense.  If all unopposed claims must be granted, the adjudication would become a mere formality.  As such it would be unnecessary, and like all unnecessary expenses in a free society, avoided.  The more pertinent question is whether the forum must follow claimants’ law where no defendant exists. If all unopposed claims must be decided under claimant’s law, the adjudication still retains its judicial function.  However, the law that is applied will nearly always comply with the claimant’s selfish interests, which will tend to multiply up to the limit of provoking opposition.

Under the concept of legitimacy, opposition to unjust claims can and should come from the judges themselves, to preserve their hard-earned reputations.  In free systems such as voluntary law societies, judicial legitimacy must be earned, as there exists no authority to grant it.  In contrast, legitimacy in authoritarian legal systems is sometimes conferred partly by politics, always at least partly by exercise of coercive power, and usually partly by a claim to moral authority.  In other words, people grant legitimacy to judgments of government courts because of some mixture of (a) lack of effective power to oppose edicts of the courts; (b)  widespread beliefs that the courts usually do the right thing, coupled with rational ignorance or acceptance of judicial misdeeds; and (c) an assumed consent of a majority or powerful minority of the people to the power of the courts.  None of these factors applies in voluntary law societies, except (in a rather different sense) the last.

In voluntary law societies, people are initially skeptical of every adjudication forum, before its reputation is established.  Every forum must build its own reputation, and none can exercise coercive power in doing so.  Each forum can build its reputation in several ways.  For example, by performing high quality services (e.g., prompt, courteous, and accurate) and by issuing high quality judgments or settlements that are seldom or never successfully appealed (more on appeal in a subsequent post).  For further example, by issuing a lot of such high quality judgments and making a name for itself.  It may perhaps seek certification or approval from various consumer rating or certifying organizations, which must first establish their own reputations by not certifying or approving others too easily.  And so on.

An adjudicating forum that either is unproven or has a reputation for issuing poor quality or biased  judgments will find that its judgments are not respected.   And if its judgments are not respected, they will be much harder to enforce, if at all.  Because under voluntary law, there is no sovereign immunity.  Judges can be held liable for issuing non-neutral or negligent judgments, and law enforcers can be held personally liable for enforcing judgments that they knew or should have known were of poor quality.  Most neutral enforcers will therefore refuse to enforce any judgment that appears questionable or risky.  Claimants may attempt to self-enforce shoddy judgments issued by sham judges under their own influence, but not without risking liability both for their enforcement actions, and for improperly influencing the judges.

In voluntary law systems, the ability to hold law enforcers and judges accountable for their actions creates tremendous pressure for adjudicating forums to only produce opinions that will be widely regarded as legitimate under fundamental principles of voluntary law (non-aggression, equality of persons, and reciprocity).  Legitimacy will be supplied directly by acting in accordance with widely adopted moral and legal principles.

Some judges and enforcers may refuse to hear disputes or enforce judgements, without waivers of liability from one or more parties.  This possibility cannot resurrect anything remotely like sovereign immunity in a free and competitive marketplace for judicial and enforcement services, for several reasons.  First, claimants and especially defendants will refuse to grant liability waivers unless the judge or enforcer has gained their confidence, either by having an excellent reputation, and/or by some other means.  Second, competition for paying clients will put considerable pressure on those providing legal and enforcement services to provide suitable, insurable warranties as to the services provided.  If the quality of services are not good, and the service providers rely on waivers to avoid liability for the costs of correcting their own mistakes, business will go elsewhere.

Let’s see how legitimacy solves the problem of dealing with unopposed claims.  Take, for example, adoption.  Knowing that it can be held liable for allowing an adoption that is not in the interests of the person being adopted to proceed, the adjudicating forum will investigate  and refuse to render a judgment of adoption unless it found the request to be bona-fide and in the interests of the person being adopted.  But under which law?  After all, if there is no defendant, mustn’t the forum apply the law of the claimant, who might have adopted extremely lax standards for adoption?  In their present form, the universal conflict of law rules do not permit the hearing of a claim without any identifiable defendant.

We consider then a couple of alternatives.  First, if there is no defendant to the claim, judges of the adjudicating forum may be regarded as the defendant.  They are, after all, the parties whose reputations are at stake, as well as being potentially liable for negligent judgments.  This solution creates opportunities for forum shopping, subject to the constraints of legitimacy discussed above in that forum.  Judges applying laws widely viewed as violating the fundamental principles of voluntary law will find issuing such opinions to be much to their own detriment.  The constraints of legitimacy are powerful indeed.  This judge-based approach has the advantage of allowing every case lacking a defendant to be tried under voluntary law, if only a willing judge can be found.

In the alternative, the forum may look to the interests of the person who is most likely to be harmed by the claim, and apply the law of that person.  Consider, for example, an orphaned child.  A general rule may provide that, in the case of a minor who has not adopted any law because not yet gaining rational capacity, the law of the mother or some other party will be imputed.  It seems reasonable to look to the person most likely to be harmed, but this approach suffers from a few problems.  For example, it may be impossible or difficult to determine the person most likely to be harmed, such as in the case of a claim to previously unclaimed property.  In addition, even if such person can easily be identified, it may not be possible to determine that the person has ever adopted any voluntary law.  Therefore, difficulties arise both in determining which law to apply, and the necessity of turning some claimants away when no adoption of voluntary law by any person with a stake in the outcome of the judgment can be identified.

In another alternative, if there is an opponent to the claim that is not acting in the interests of an identifiable defendant, the forum could apply the law of the opponent.  This approach would not work in cases where no opponent steps forward.  Also, it would invite meritless opposition by opponents seeking to extort settlements from claimants, regardless of the merits of the claim or the opposition.  Merely predatory opponents are not restrained by any concern for maintaining legitimacy.  Also, applying the opponent’s law would be similar to applying defendant’s law for affirmative defenses, violating reciprocity and facilitating predatory behavior.

For these reasons, the judge or judges appointed to render a judgment should apply their own adopted law, but only in the limited case of claims not made against any person for which (a) it is not possible to identify any single person most likely to be affected by the judgment on the claim, or (b) if such person can be reliably identified and is incapable of adopting or refusing a voluntary law (e.g., an infant), it is not possible to ascribe adoption of any voluntary law to the person by any reasonable means (e.g., no family can be found).  It should be emphasized that this rule should not be applied when the claim is made against a specific non-disabled person who is unwilling to adopt any voluntary law.  Under the non-aggression principle, such non-adopters must be beyond the reach of voluntary law, and have the status of outlaws so far as recourse to voluntary law forums is concerned.

Let’s see how the judge-adopted rule would play out in another example:  A space miner wants to bring a claim for title to an unclaimed asteroid in a voluntary law forum.  The miner faces a choice.  The claim may be heard by Respectable Justice, who enforces rather strict requirements on asteroid claims, including proof of first discovery and use, and a diligent search for competing claims turning up empty.   Or, the claim may be heard by Dubious Justice, whose service motto is “No unopposed claim too audacious to grant!”  If the miner selects Dubious Justice, the claim is certain to be granted quickly and cheaply, but the resulting judgment will be invalid if there is any later challenge to first discovery or use.  If the miner selects Respectable Justice, the claim will require more time and money to obtain, but once granted is unlikely to be challenged due to Respectable’s reputation for diligence and fairness, and use of a law with more demanding requirements.

So which Justice will the miner choose?  If the miner is very confident in the legitimacy of the claim, Dubious Justice might be a rational choice because of its greater efficiency, in the absence of any significant risk that the judgment will be challenged.   If the miner is aware of competing claims or other legal challenges, it would be rational to select Respectable Justice, so that the matter is settled once and for all, and the investment in mining the asteroid can proceed without undue risk.  Actually, if the miner is funded by third party investors or lenders, or purchases insurance for any risk related to the claim of title on the asteroid, such parties may require the miner to use Respectable anyway, just to avoid any cloud on the veracity of the miner’s title.

So it is apparent that the need for an appropriate level of legitimacy imposes a discipline on claimants to select an appropriate forum for the matter at hand, without depriving claimants of cheap and fast judgments in easy cases.  There’s nothing at all wrong with cheap and easy justice for easy cases; in fact, it is greatly to be preferred to expensive and slow.  Applying the law of the judge is beneficial in these types of cases, where there is no identifiable defendant.  The claimant can pick an appropriate forum based on the level of risk involved, and the judge can manage the risks of hearing the case by adopting and applying appropriate laws, among other things.

What if the case is decided by a panel of judges?  Then the panel may apply any law that has been adopted by at least one member of the panel.   This can be left as a matter of agreement between the panel members.

Why require the judge to have adopted the law that is applied? To provide predictability for claimants in selection of forums.  In any event, the market would impel judges to advertise which law will be applied in cases for which no defendant exists.  Where the law pertains to claims lacking any defendant, there is little or no detriment to the judge in adopting a law that is advertised, because such law cannot be enforced against the judge personally.  Therefore, instead of making conflict of law rules more complex by introducing the new concept of “advertising a law,” it is expedient to keep these rules simple by specifying the adopted law of a judge as the law to be applied in cases lacking an identifiable defendant.

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