WEBVTT NOTE Community Norms for Punishment and Restitution 1 00:00:00.000 --> 00:00:06.120 Okay. Well, I need to start my presentation today with a disclaimer and an apology. The 2 00:00:06.120 --> 00:00:13.340 disclaimer is that the term co-author applied to me is rather generous. I'm really not a 3 00:00:13.340 --> 00:00:18.800 primary author on this paper. The two authors are Greg Grome, who's a practicing lawyer, 4 00:00:18.800 --> 00:00:26.040 and Gil Gillery, who is a private scholar. Greg Grome was originally supposed to present, 5 00:00:26.040 --> 00:00:55.040 So the apology is that I was pressed into service to present this just a couple days ago, only had a couple days to prepare, and I guess I won't be able to threaten you with the full 25-minute presentation. You'll probably have to think of this more as a commercial or a plea to go check out the real thing, the real paper. It's an excellent paper. 6 00:00:55.040 --> 00:01:18.040 So the title is Community Norms for Punishment and Restitution, a Call for Mediation Casebooks. 7 00:01:18.040 --> 00:01:36.700 A victim-offender mediation, using circles of support, is the paradigm case for observing 8 00:01:36.700 --> 00:01:43.680 community norms of justice, punishment, restitution and proportionality. Modern U.S. juridical 9 00:01:43.680 --> 00:01:48.480 Practical practice lacks effective means to assess and apply community norms. 10 00:01:48.480 --> 00:01:55.000 We therefore advocate the assembly and dissemination of mediation casebooks to guide judges, juries 11 00:01:55.000 --> 00:02:01.100 and private arbiters in setting terms of punishment and or restitution. 12 00:02:01.100 --> 00:02:05.560 Private arbitration has become more common over the last 50 years in the U.S., returning 13 00:02:05.560 --> 00:02:08.720 from historical obscurity. 14 00:02:08.720 --> 00:02:14.280 Resolution Projects have been launched in virtually all major U.S. cities. Arbitration 15 00:02:14.280 --> 00:02:20.320 is likely to keep growing in scope and number of cases. Notably, Guillory, in another paper, 16 00:02:20.320 --> 00:02:25.040 proposes a franchisable business model for subscription security which would provide 17 00:02:25.040 --> 00:02:30.420 private patrol and investigation of crimes, leading to the widespread use of mediation 18 00:02:30.420 --> 00:02:37.600 and or arbitration between victims and offenders to secure restitution for victims. We raise 19 00:02:37.600 --> 00:02:43.600 There is a concern that private victim offender arbitration is challenged to reflect community norms. 20 00:02:43.600 --> 00:02:49.600 The best answer, we think, that is to the modern system, lies in the creation of mediation case books. 21 00:02:49.600 --> 00:02:55.600 And that's what the paper deals with. 22 00:02:55.600 --> 00:03:03.600 So why worry about community norms? Well, there's an inherent problem in subjectivity in adjudication. 23 00:03:03.600 --> 00:03:10.600 In many cases, damages that are to be awarded can be very straightforward. In other cases, it's not so clear. 24 00:03:10.600 --> 00:03:23.600 And the question arises whether those awarding restitution really have a good grounding in anything other than just their own subjective ideas. 25 00:03:23.600 --> 00:03:31.600 The paper cites a case study that was done with two sets of juries and they were presented 26 00:03:31.600 --> 00:03:37.300 with the same arguments and in one case the plaintiff was asking for X number of dollars 27 00:03:37.300 --> 00:03:42.380 and in the other case the plaintiff was asking for 3X number of dollars and the latter juries 28 00:03:42.380 --> 00:03:47.600 consistently would award something like two and a half times what the other jury would 29 00:03:47.600 --> 00:03:52.560 award so clearly being influenced by things which don't have much to do with the facts 30 00:03:52.560 --> 00:03:55.560 So that's at hand just the arguments that are being made. 31 00:04:01.560 --> 00:04:07.560 So as I mentioned, mediation and community norms is a way of grounding the practice of law, 32 00:04:07.560 --> 00:04:16.560 the practice of restitution in practices which are agreed upon voluntarily, notably in mediation. 33 00:04:16.560 --> 00:04:20.560 And in collecting the data for mediation cases, 34 00:04:20.560 --> 00:04:50.560 So a modern victim-offender mediation looks something like this. There's a director of personnel and a facilitator. In this case, Julie is a victim of a sexual assault from Michael. Both Julie and Michael are able to bring in people for moral support, to help them face one another, to help them be able to air their grievances fully, and there are various officers and specialists who are there to facilitate the whole process. 35 00:04:50.560 --> 00:05:06.560 This paper argues that mediation is the optimal dispute resolution. All issues can be raised. There really aren't set procedures. Many things are negotiable in the process. All sanctions and terms are available. 36 00:05:06.560 --> 00:05:18.560 Mediators are often quite surprised at the creativity of the victim and the offender in coming to some kind of solution that works for both of them. 37 00:05:18.560 --> 00:05:24.560 It's also empowering for those involved in the process to be able to feel like justice has truly been served. 38 00:05:24.560 --> 00:05:32.560 All parties, of course, must agree or else you'll have to move it to an arbiter rather than a mediator. 39 00:05:32.560 --> 00:05:38.560 Once again, it draws on and it contributes to the expression of community norms. 40 00:05:38.560 --> 00:05:46.560 This is a diagram that illustrates the process from individual cases all the way to the norms, 41 00:05:46.560 --> 00:06:01.560 A large section of the paper deals with Greek and Roman models of mediation. 42 00:06:01.560 --> 00:06:14.560 In particular, it cites a scholar, Derek Roebuck, who wrote a couple of books that are kind of source texts in ancient Greek and Roman arbitration. 43 00:06:14.560 --> 00:06:18.560 and one passage of particular interest is the shield of Achilles. 44 00:06:18.560 --> 00:06:22.560 If you ask me what it is that's there on the shield of Achilles, I can only, 45 00:06:22.560 --> 00:06:25.560 it's probably easier for me to tell you what's not on the shield of Achilles. 46 00:06:25.560 --> 00:06:32.560 Hephaestus forges us four Achilles and it features a number of scenes from, really from civilization 47 00:06:32.560 --> 00:06:37.560 and many classicists have pointed out how this is contrasted to the war there at Troy. 48 00:06:37.560 --> 00:06:49.560 But among the scenes is actually an arbitration that's taking place, and I just want to read a short description of that. 49 00:06:49.560 --> 00:06:52.560 This is a description of what's on the shield, that is. 50 00:06:52.560 --> 00:07:01.560 Men were crowded together in an assembly. A dispute had been stirred up there, and two men were disputing about the reconciliation payment for a man who had been killed. 51 00:07:01.560 --> 00:07:31.560 One was pleading all to be yielded, pointing it out to citizens, the proposed payment, perhaps cattle, but the other refused to accept anything. Both men had put it to a knowing one to reach an end, and men supporters of each side were cheering on both of them, so marshals were restraining the crowd. The elders sat on polished stones in a sacred circle, and one after another took the speaking staff of the shouting marshals in their hand and adjudicated. Two gold talents 52 00:07:31.560 --> 00:07:36.560 to lay in the midst of them, to be given to the one among them who spoke the straightest judgment. 53 00:07:38.560 --> 00:07:43.560 So in ancient Greece, and this is something that's detailed in the paper, I can just kind of briefly look at it here, 54 00:07:43.560 --> 00:07:47.560 most cases were indeed decided by private mediation. 55 00:07:47.560 --> 00:07:52.560 Parties would appoint a koinos, common to both parties, someone known by both parties, 56 00:07:52.560 --> 00:07:59.560 and they might also bring arbitrators, people who could present their own case to the koinos, perhaps better than the parties themselves. 57 00:07:59.560 --> 00:08:06.560 There was a mediation, and so in the case of acceptance, the agreements were final and there was no appeal. 58 00:08:06.560 --> 00:08:12.560 And only relatively few cases, as you can see at the bottom, went to public arbitration. 59 00:08:12.560 --> 00:08:19.560 When that would happen, for example, in Athens, many jurors or judges, the Greek word is diecasts, 60 00:08:19.560 --> 00:08:25.560 up to over 500 were chosen by law from all citizens. It was considered a civic duty to go serve. 61 00:08:25.560 --> 00:08:31.560 DieCast made the final ruling. Socrates, for example, was tried in one of these situations. 62 00:08:31.560 --> 00:08:38.560 But most cases were indeed done by private mediation, even though these were the same people who might also serve on a jury. 63 00:08:43.560 --> 00:08:47.560 As a result of the length, the DieCasts were a direct expression of community norms. 64 00:08:47.560 --> 00:08:53.560 So the things that were done every day in common dispute resolutions would be expressed even in a jury. 65 00:08:55.560 --> 00:09:07.560 Ancient Romans would often make use of private mediation by a bonus weir that is a good man, again, someone known to both parties in many cases. 66 00:09:07.560 --> 00:09:17.560 The goal was settlement, mediation. If that didn't work, if parties couldn't come to an agreement, they'd, much like in the Greek model, would bring private arbitration before an arbiter. 67 00:09:17.560 --> 00:09:24.440 The arbiter was under the direction of the city praetor, so it was a little bit more 68 00:09:24.440 --> 00:09:28.840 involved with the civil law, the goal being equity in that case. 69 00:09:28.840 --> 00:09:33.160 And then finally, there are a few cases in which a case would make it up to public or 70 00:09:33.160 --> 00:09:42.360 private arbitration by EUDEX with the goal being justice. 71 00:09:42.360 --> 00:09:47.480 And in ancient Rome, those who were deciding on these laws were often professional jurors, 72 00:09:47.480 --> 00:10:03.480 Now, the modern system suffers from a cut-off of the virtuous transmission of community norms to judges and juries. 73 00:10:03.480 --> 00:10:14.480 Judges and juries are appointed by the state. In most cases, when a juror sits in his seat, it's the first time he's ever been asked in his life to wrestle with complex legal topics. 74 00:10:14.480 --> 00:10:17.480 No experience of mediation is required, 75 00:10:17.480 --> 00:10:20.480 unless... 76 00:10:30.480 --> 00:10:33.480 Just another slide stating a few bullet points. 77 00:10:37.480 --> 00:10:40.480 And so the solution proposed by the paper 78 00:10:40.480 --> 00:10:43.480 is because mediations are now currently going on all the time. 79 00:10:43.480 --> 00:11:02.480 and all the time. The idea is to take the mediations and consolidate them into some kind of norms and make them usable for judges, arbitrators, juries to be able to apply community norms to try and center judgments and awards, restitutions back in practice of communities. 80 00:11:02.480 --> 00:11:10.460 Here's a figure to demonstrate the problem. Both of these black circles are the black 81 00:11:10.460 --> 00:11:15.440 circles of justice, I call them. You can't actually see these. I mean, they're here for 82 00:11:15.440 --> 00:11:21.560 the purpose of illustrating, but in reality, what people are dealing with, they know this 83 00:11:21.560 --> 00:11:26.480 red boundary of legal guidelines. These are the legal boundaries in which I have to rule. 84 00:11:26.480 --> 00:11:31.120 I'd say that's a rather generous position relative to the black circle of justice. And 85 00:11:31.120 --> 00:11:46.120 Now on this side we have mediation cases, which are individual dots. Now since all of them are agreed to voluntarily, there is a much better idea of what it is, well, when justice is served through these agreements. 86 00:11:46.120 --> 00:11:57.120 So the question that's posed is, well, which job is easier? If all you could see was the red circle and the dots, which would be easier to figure out where justice was? 87 00:11:57.120 --> 00:12:22.120 Finally, there's an example casebook entry here, where they want to provide an example of how one might put together from a mediation a casebook and in putting enough of these together, again, it's not only drawing on community norms but contributing to them and can be something that could be applied in the courts. 88 00:12:22.120 --> 00:12:31.200 So once again, I implore you, if you're interested at all, to please seek out the paper and track 89 00:12:31.200 --> 00:12:32.200 down Gil Guillory. 90 00:12:32.200 --> 00:12:35.760 He'll be happy to answer all the questions that I think you would have. 91 00:12:36.760 --> 00:12:38.760 Thank you very much.