[svlug] Governance Discussion

[Christian Einfeldt]

hi

On Dec 6, 2007 11:45 PM, Andrew Fife <afife at untangle.com> wrote:

> I think Christian is on to something here...
>
> >That means that 120 minutes have been allocated for this meeting, and I
> am
> >counting 12 major bullet points listed below.  That means that if you
> want
> >to cover all of these topics, you will have 10 minutes per topic.
>
> I would also like to add, that transcribing the meetings would probably be
> a very good idea because writing things down will help ensure that
> discussions come to a conclusion, everyone is on the same page, minimize the
> need to rehash from meeting to meeting and allow the rest of SVLUG to
> understand the discussion.
>

I think that this is an awesome idea.

Also, IMHO, we might want to think of annotating whatever rules we develop,
in the same way that US courts interpret statutes.  Not to put down Europe's
civil law system, but one of the nice things about California's
implementation of the common law is that California has one of the most
well-interpreted bodies of law in the nation.  The primary reason for this
is a combination of our sheer population size and the fact that California's
Spanish heritage means that we took Europe's civil law system (extensive,
detailed statutes) and modified it with England's common law system
(judge-made law).  As a result, not only do we have detailed statutes (which
makes life easier for judges), but we also have judges sitting down to
interpret how those statutes apply in detail to real life.

The problem facing any legal system to stay flexible and adjust to changes
in society.  California's combination of the civil law and common law means
that it is both nimble and clear (relatively speaking, although of course
there are many statutes that suck and court cases likewise).

This group seems to like to have very clear rules for resolving conflict, as
opposed to some other LUGs of which I am a member, in which people sort of
wing it on a case-by-case basis and resolve issues more informally.  I have
never before seen a LUG list in which members wanted to make reference to
past decisions to decide the outcome of current disagreements.  So if we
write down our rules, and establish structures for interpreting those rules,
and then create a searchable database, we will be able to appeal to this
group's taste for written procedure.

Of course, the downside of this approach is that lawyers and people who
think like lawyers (I intend this as a compliment) understand that there is
no rule so clear that, given the facts of any given case, there is no room
for asking for an outcome which, at first glance, is not immediately
intuitive.  So we might actually find ourselves creating structures for
hearings and decisions enforceable in a court of, if that is our
preference.  I would urge caution when going down that road, because then
you have a mere contest of the wills, and almost inevitably, the wealthy
win, because they have the ability to enforce their will since a court of
law is nothing more than a gladiator's stadium in which the contestants
engage in wars of attrition, with the spoils going to the party that is left
standing after the other's resources have been depleted.

Such is the sorry state of our legal system today, and it is the reason that
I am leaving the practice of law after 14 years.  I am disgusted with it.
We are no longer a nation of laws; we are a nation of wills, in which mere
obstinance prevails, so long as a litigant has the means to bludgeon his
opponent into submission.

It was not always that way.  When I first started working in a law firm back
in 1986, it was actually possible for the little guy to get justice in
court, at least from the juries of San Francisco and Alameda, although the
juries of Contra Costa, Sonoma, Solano, Santa Clara, and Marin counties were
more conservative and therefore more likely to support the cause of the
wealthy.  But now even San Francisco county has increasingly gone the way of
the more conservative counties, and so here we are, with the court house
doors nominally being open but increasing less meaningful to those who don't
have the means to hire the best expert witnesses.  Note that I did not say
"the means to hire the best lawyers", because in today's world of
rent-an-opinion, even a really great lawyer needs to be able to throw lots
and lots of expert witness money at a case, and in smaller matters, the cost
of hiring enough lawyers easily exceeds the amount in controversy.  And so
the more wealthy party wins, because on a case-by-case basis, the wealthy
can always take the loss and mitigate their expenses by risking that their
expenses will be paid by their opponents after the case is done.

So this is the road that lies before us if we do not focus on collaboration,
but instead insist on seeing an outcome that we find favorable.  Of course,
this is only a LUG, and our group is not large enough nor the stakes high
enough for anyone to actually hire a lawyer, and that is not what I meant.
But I wanted to give you my perspective as someone who has spent nearly a
decade and a half fighting on behalf of low-income individuals against
billion-dollar institutions.  The courts were once thought of the avenue for
individuals to attain redress for their grievances, as opposed to the state,
which asserts its will via its police and military, or large corporations,
which buy their relief in the market.

The value of community is that it is the consensus of the community which
exerts upon individuals the pressure to do the right thing, rather than
engage in expensive protracted battles.  The reason that I am interested in
joining the world of you technologists is that I have found that your
relatively greater level of education has allowed you to create communities
where well-reasoned opinions matter, and people will bend their wills to the
greater good, even if it is not what they want at the moment, simply because
their acceptance by the group as a member in good standing is more important
to them than the outcome of any individual contest, in most cases.  To me,
that is the very image of an enlightened society.  Let's please keep that
image in mind as we move forward with this process.
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