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Re: Hackers and Painters and Lawyers
Date: Fri, 16 May 2003 09:47:48 -0400
From: "Peter J. Wasilko, Esq." <firstname.lastname@example.org>
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.
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
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?