Re: Hackers and Painters and Lawyers

[Guy Steele - Sun Microsystems Labs <address@hidden>]

   Date: Fri, 16 May 2003 09:47:48 -0400
   From: "Peter J. Wasilko, Esq." <futurist@cloud9.net>
   Subject: Hackers and Painters and Lawyers
   
   > Perhaps a more interesting question would be "Do the best lawyers
   > draft contracts in pairs", since I imagine that a legal document *can*
   > have subtle "bugs", which would be easier to spot with two sets of
   > eyes.  I wouldn't be surprised to learn that they do.
   
   Greetings All,
   
       As an attorney I'd be happy to field this one.
   ...

Thanks for your remarks!  And I have a question...
   
       Throughout, contract clauses that have already been litigated
       and interpreted by the courts are used whenever possible,
       since novelty of language equals potential ambiguity that
       can lead to expensive litigation down the road.

I was wondering if you would comment on a folk theory
that I have heard time and again, which we might title
"Darwinian Theory of Legal Obfuscation".  It runs roughly
as follows:

  Why is legal language so hard to understand?
  
     (a) A lawyer always tries to use clauses that
         have already been interpreted by the courts
         [as you noted].
  
     (b) A court interprets a clause only when it is
         brought to its attention through litigation.
         
     (c) Litigation over the meaning of a clause
         occurs only when there is some disagreement
         over the meaning of a clause
         
     (d) Disagreement over the meaning of a clause
         is most likely to occur when the clause is
         ambiguous or hard to understand.

  Therefore, the system produces a kind of Darwinian
  pressure: the legal language most likely to survive
  is that which on its face is most ambiguous or
  difficult to understand.

True?  False?  Bogus?

--Guy