============================  Appeal 2436a  ============================


Panelist:                               Murphy
Decision:                               REMAND


Panelist:                               Yally
Decision:                               REMAND


Panelist:                               scshunt
Decision:                               REMAND

========================================================================

History:

Appeal initiated:                       15 Apr 2009 12:41:41 GMT
Assigned to Murphy (panelist):          15 Apr 2009 14:54:42 GMT
Assigned to Yally (panelist):           15 Apr 2009 14:54:42 GMT
Assigned to scshunt (panelist):         15 Apr 2009 14:54:42 GMT
Murphy moves to REMAND:                 15 Apr 2009 15:13:52 GMT
scshunt moves to REMAND:                15 Apr 2009 16:51:12 GMT
Yally moves to REMAND:                  22 Apr 2009 14:54:42 GMT
Final decision (REMAND):                22 Apr 2009 14:54:42 GMT

========================================================================

Panelist Murphy's Arguments:

As noted by the appellant, clause 6 of the PNP contract is sufficient to
rebut the judge's arguments.

The appropriateness of the empty judgement is less clear.  Criminal
prosecution of comex failed (CFJ 2435), and prosecution of the PNP
and/or its parties would presumably fail on similar grounds (absent
repeated attempts that they willfully failed to prevent).  However,
the initial furor directly led to (1) the PNP being voted out as
Promotor and (2) a fresh attempt to repeal partnerships, and the PNP
parties could reasonably request punitive damages on those grounds.

========================================================================

Panelist scshunt's Arguments:

I opine REMAND for the same reasons.

========================================================================

Gratuitous Arguments by G.:

Comex's actions directly led me to change my vote in the
election from PNP to coppro; that was the last vote cast in the election
and that (plus those who endorsed my vote prior to that) swung the
outcome.  Also, the judge should not mistake "died down" for "patiently
awaiting for justice in the outcome (instead of blathering on) having
made one's case".  -Goethe

========================================================================

Gratuitous Arguments by G.:

Let me throw out an argument for a greater spirit of equity here.   [If this
fails, it is probably the last time I will ever believe that equity was
possible here or pitch for its use]:

It remains in the spirit of Partnerships, in being to consider that they are
granted rights as persons and in the fact that partnerships are natural shared
(or "devolved") responsibilities.  This is worth considering in two ways in
the current situation.

1.  It's not a metarule of the contract, but a metarule *and precedent* of
Agora, that Officers have a generally "greater" responsibility with respect to
their official conduct -- e.g. precedents which hold that an officer is less
able
to hide behind an "I wasn't aware that I wasn't doing a duty so I didn't break
that rule knowingly".

In part, this is enforced through elections; and the PNP itself was voted out
of office when it (as a partnership) "misbehaved" as an officer.  But in
accepting a position as an officer, the persons responsible for the contract
(the parties) were in essence accepting that collective greater
responsibility.
Without positive evidence that the purpose of the partnership's existence was
to violate that responsibility, it should be assumed that such violations were
not R2169 "events proceeding as envisioned".  For one party to break that
responsibility materially harms the partnership in a manner that can, and
should,
be dealt with through direct and specific adjustments through the equity
court;
at the very least covering salary lost to the PNP due to losing the position.

2. Moreover, if partnerships are defined as persons, we must ask, what
do persons have that is invaluable in Agora?  Reputation.  It's seen time and
time again that reputation matters materially; in making deals, in arguing
cases, in going along with votes or legislation.  I would argue that, unless
a partnership *explicitly and strongly permits and intends* it (e.g. with
clauses that say "we are a partnership of pirates that intend to exploit you
all, yargghh", if a member takes actions on behalf of the partnership that
damages said reputation, said damage is material, and the fact that such
damage is not "anticipated" by the contract (in the equity sense) is not some
metarule that should have been in the contract, but something that is
*inherently true* about any partnership or person that doesn't directly say
otherwise.  This is especially true and the damages are particularly severe
if,
before the actions in question, the partnership acted strongly in ways to
increase and maintain its reputation (e.g. acting as a responsible officer
for a long time).

Reputation is of high value and difficult to restore; it is reasonable to
suggest that said damage to reputation is only repairable if the persons
responsible are known to no longer be a part of the partnership in question,
or at the very least if a vote of the partnership excluding the alleged
perpetrator were held to ask whether the person should be removed.

========================================================================

Gratuitous Arguments by omd:

I think everyone's forgetting that the PNP is the projection into
Agora of a nomic-- a codenomic, no less, where traditionally, _any_
technically possible move is legal.  As the metarules show, PerlNomic
has strayed somewhat from that tradition and adopted the "here is a
permissive form, please don't abuse it" mentality.  But I highly doubt
the real reason for the uproar was some incorrect boilerplate text
which nobody reads anyway-- that was just an excuse to punish me for
the distribution, which people disliked: in part because I was lazy
and didn't make it a full distribution (this I apologize for), but
also because I was able to use the PNP to aid a scam by controlling
the time of the distribution.

The relatively loose controls on making distributions are quite
explicitly part of PerlNomic's "rules".  At least one of the authors
of the promotor system desired this in order to aid scams; and the
mechanisms of that system were voted on and enacted in a nomic by
majority consent.  Yes, I'm the one that pulled the trigger, but any
scamster, perhaps with a far more dangerous scam in mind, could have
done the same.  Being able to control the time of distribution is a
great advantage in several kinds of scams, especially the sort where
something needs to be done just before the close of voting, and the
PNP let me control it.  This fact is, at least in part, responsible
for whatever material damage the PNP has suffered, and I don't even
know Perl very well.

I'd also like to remind everyone that I believed that failing to fix
the loophole, or even letting word get out, would be very dangerous to
the game (because people might make all sorts of weird unrecorded
actions).  I was wrong, and I did fumble the execution of the whole
thing (really, I should have guessed the BlogNomicites would alert
Agora), but those were my intentions.

========================================================================

Gratuitous Arguments by G.:

I'll first say that I agree with you somewhat, I think it's incorrect to
go after you for the technicality of the boilerplate text.

Rather, I think that, given Agora's default assumptions about partnerships
and equity, it's acceptable to go after you for the scam itself in an
equity sense (damages from loss of salary and/or reputation of the
partnership as a person).

The internal mechanisms of PNP may be nomic, but the outcome is as an
agoran partnership with shared responsibilities - when the partnership steps
up to take an Agoran officer's responsibilities, Agora should see its
internal processes as secondary in the absence of a direct, expressed
"shared will to scam Agora".  In the absence of that expressed will, if a
preponderance of the evidence suggests that the actions of an individual's
will were outside the collective will of the contract intents as expected
by a sufficient number of members, equity might be assessed.

Or if you prefer, if the "purpose" of the PNP was to "nomic loophole scam",
then if the scam did not benefit the partnership as a whole, but used
partnership abilities hurt the partnership at the attempted profit of a
single member, there's potential unforeseen impropriety (not illegality)
right there, which could be similarly subject to equity.

> The relatively loose controls on making distributions are quite
> explicitly part of PerlNomic's "rules".  At least one of the authors
> of the promotor system desired this in order to aid scams; and the
> mechanisms of that system were voted on and enacted in a nomic by
> majority consent.  Yes, I'm the one that pulled the trigger, but any
> scamster, perhaps with a far more dangerous scam in mind, could have
> done the same.  Being able to control the time of distribution is a
> great advantage in several kinds of scams, especially the sort where
> something needs to be done just before the close of voting, and the
> PNP let me control it.  This fact is, at least in part, responsible
> for whatever material damage the PNP has suffered, and I don't even
> know Perl very well.

There are two separate questions:

(1)  Under the circumstances, do the Agoran equity courts have a reasonable
case and legal theory for assessing *some kind* of damages or contract
adjustments due to "legal but improper loophole scamming of an officer's
accepted duties, which caused greater damage to the partnership through
damages to its 'reputation or position (e.g. officerhood)' as a Person"?

I accept that this is an interplay of the PNP's right to govern itself
versus Agora's interest that can be rightfully asserted when the
partnership (a) accepts equity oversight as a second-class person and
(b) accepts further responsibilities through selecting to be an officer.

(2)  What should those damages be?

I'll argue for a strong 'yes' on the first, but that's where my arguments
will stop.  I'd accept a great deal of your arguments as mitigating factors
for the second.  That's not for me to say, it's for members+judge.  Remember,
a "better" outcome  of equity would be that a shared out-of-court settlement
be reached between members under the judge's guidance; perhaps you should try
to reach such an agreement based on your arguments for fixing bugs, etc.

If the judge doesn't accept (1), you have no reason to bargain and equity is,
in effect, over, done, and meaningless forever.  If the judge accepts (1) in
principle and outlines the material damages done, that's the basis for
bargaining (e.g. the damages done versus the court's ability and willingness
to collect from an unwilling party) and if bargaining fails, *then* an
adversarial imposed judgement.  I personally, as a non-member, withdraw any
of my previous opinions for what might be appropriate there (kicking out,
forgiveness, or something in-between).

========================================================================

Panelist Yally's Arguments:

[no opinion given]

========================================================================