On the "Darwinian Theory of Legal Obfuscation"

["Peter J. Wasilko, Esq." <address@hidden>]

Hi Guy and All,

> 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". 

    I'd be happy to.
    
>  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].

            There is one qualification that needs to be added here.
            
            "A lawyer always tries to use clauses that have already been
             *consistently* interpreted by the courts to resolve an issue
             *without leaving it subject to interpretation on a case-by-case
             basis."
             
            Some clauses are so garbled that they lead to almost random
             interpretation even within a given jurisdiction, or more 
             precisely, they unambiguously specify purely subjective 
             tests that can't be resolved without reference to the oracle
             of a specific judge, jury, or arbitration panel. (ie. they
             have Amb-Eval semantics)
             
            If counsel can device an objective alternative that wouldn't
             necessarily lead to litigation, they would opt for novel
             language instead.
>   
>      (b) A court interprets a clause only when it is
>          brought to its attention through litigation.
> 

            True, moreover the specific clause needs to be the subject of
             litigation or the court won't and shouldn't take notice of it,
             even if it is part of a contract that is being litigated before it.
             
                      
>      (c) Litigation over the meaning of a clause
>          occurs only when there is some disagreement
>          over the meaning of a clause
>          
            Semi-Bogus, most of the litigation revolves around the
             application of the clause rather than its meaning. (ie.
             everyone agrees that the contract calls for a "reasonable
             effort" to get a program delivered by some particular date,
             the devil is in the details of what constitutes reasonableness
             in a novel setting.

>      (d) Disagreement over the meaning of a clause
>          is most likely to occur when the clause is
>          ambiguous or hard to understand.
> 
            Disagreement over the meaning of a clause
             is most likely to occur where the subject
             matter of the clause is "context sensitive"
             making it hard to consistently reason about
             it by analogy.
             
            Most litigation grows out of boundary cases, where finalized
             decisions are like unit tests, so you know what the output of
             litigation should be for a given input.
            
            A bad clause would be a finite function whose application would be
             undefined until extended via-litigation in almost every instance,
             giving it little predictive value regardless of its structural
             ambiguity or lack thereof.
             
            By contrast, structurally ambiguous clauses would be linguistic
             constructs reflecting logical falicies or having multiple parse
             trees with clashing semantics. These kinds of ambiguity get nailed
             down fast in early litigation that fixes their meaning for all
             contexts, which is why clauses with a garbled surface form can hang
             around for a long time. (ie. a lawyer simply treats them as idioms
             whose semantics are independent of their surface structure.)
            
>   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

    In agregate, I'd say this is a largely Bogus oversimplification. First, it ignores the reuse of well written legal clauses that clearly state the rights of each party in such a way that the language use is not itself the subject of litigation. (ie. unambiguous areas where you can have bright line distinctions and black letter law) Second, it doesn't acknowledge that legal refactoring has been alive and well in law schools and bar associations for many years now.

    I sit on the New York State Bar Association's Legal Education and Admission to the Bar Committee and am happy to report that most law students today are admonished to improve their legal writing and to make it accessible to End Users by writing in Plain English. There is a concerted effort in the profession to replace legal idioms with their actual meanings expressed in jargon-free English so we can at least reduce the costs incurred when structural ambiguity leaks into our work product.

    It is very much a process of debugging where from time to time parties agree to apply what are hopefully correctness preserving transformations to ugly old legal constructs, where language gets normalized and cleaned up in response to market pressure to produce clean maintainable bug free code. Ideally, this evolutionary pressure towards simple plain English will prove sufficient to more than counterbalance the Darwinian pressure towards excessive use of "terms of art".
    
    That said, I would argue that the programming community needs to reconsider its own excessive reliance on jargon. Lambda's, Closures, and Continuations aren't much more accessible to End Users than Torts, Best Evidence, and The Rule Against Perpetuities.
    
    
Warmest Regards,

Peter



_________________________________________________________________

Peter J. Wasilko, Esq.
     J.D., LL.M.               

Executive Director, The Institute for End User Computing, Inc.

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