Re: Of Legal Language and CS Notation

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

> I'm not sure what Mr. Wasilko had in mind, but I've talked
> extensively on this subject with a friend who is has been both an
> actual practicing lawyer and an actual practicing software engineer.
> From conversations with him, plus some with other lawyers, I have
> tentatively concluded that:
> 
> (a) One reason that legal contracts are written in such a seemingly
> jargon-y way is that lawyers are carefully copying language that has
> been used before, because that language has been already tested by
> courts; this is a "historical accident" reason.
> 

    This is definitely the case under the legal doctrine of "Stare
Decisis", which is Latin for "let the decision stand" or in other words:
"always evaluate the same application of law to return the same result"
modulo how closely the facts match.

    Think of "Stare Decisis" as the application of a hash functions to
sets of similar facts.

> (b) Some contracts are much more readable than others, and often the
> less readable ones are simply the result of lawyers who are
> unskilled: either they do not know how to express themselves clearly,
> or they load up the langauge with lots of extra stuff in a
> largely-unnecessary attempt to make sure there are no holes or flaws.
> 

    To some degree this is a matter of "cargo cult" lawyering with
reasoning along the lines of "I recall that language like this worked
once, so it can't hurt to paste it in here too."

> (c) Many contracts could be expressed more clearly if they could use
> the constructs of very basic computer programming to a greater extent
> than they can already; the main reason they can't is (a).
> 

    This is very true. We actually tried to use programming to improve
our reasoning in one experiment when I was in law school. The idea was
that if we taught a bunch of law students to model their legal briefs as
Prolog programs all of their logical lapses would be manifest by the
system.

    Needless to say, the law students had a hard time going from English
to Horn clauses, didn't grok unification, and pretty much lost it when
cut was introduced.

    But there has been some interesting work on the mechanical
normalization of legal statutes by the Law and AI community.


> (d) Some contracts are written to be intentionally misleading for
> various nefarious purposes; this is hard to prove but there are some
> cases that seem very compelling.
> 
    
    The most common for that this takes is when a lawyer deliberately
introduces a clause that he knows isn't enforceable under current law in
the hope that the other part will assume that it is valid and thus
decide to abide by it rather than mount a court challenge. I find these
tactics unethical, but the counter argument is that it is just part of
zealous representation and that 'you never know, the law might change to
make it enforceable by the time it gets challenged'. This is something
akin to having a code branch with the comment 'execution should never
reach this point'.

> By the way, opinions of appellate courts are generally not hard to
> read and understand. (It may be hard for one of us to know whether
> there are good counter-arguments, but that's a different question.)
> You do have to learn some basic "terms of art" ("term of art" is an
> official jargon phase that means "official jargon phase") for
> important legal concepts like "precedent", "narrow issue", and so on,
> but they're mostly not hard.

    Some opinions are actually remarkably entertaining. For example an
opinion at 337 F.3d 1024 reads in part:

"Con man Stephen Cohen, meanwhile, was doing time for impersonating a
bankruptcy lawyer. He, too, saw the potential of the domain name. Kremen
had gotten it first, but that was only a minor impediment for a man of
Cohen's boundless resource and bounced integrity.

        . . .
 
 Then things started getting really bizarre.
 
        . . .
 
 We must, of course, take the broader view, but there is nothing unfair
about holding a company responsible for giving away someone else's
property even if it was not at fault. Cohen is obviously the guilty
party here, and the one who should in all fairness pay for his theft.
But he's skipped the country, and his money is stashed in some offshore
bank account. Unless Kremen's luck with his bounty hunters improves,
Cohen is out of the picture. The question becomes whether Network
Solutions should be open to liability for its decision to hand over
Kremen's domain name. Negligent or not, it was Network Solutions that
gave away Kremen's property. Kremen never did anything. . . ."
 
    Notice that this doesn't look anything like legalese. Of course the
opinion does end with "Kremen had a viable claim for conversion. The
judgment of the district court is reversed on this count, and the case
is remanded for further proceedings."

    But you can think of such jargon as a set of macro calls that expand
to "Given the facts that are in the record of this case, Kremen is
entitled to win under the legal doctrine that you can recover the value
of property that is stollen from you and can't be returned. The court
whose decision we are reviewing make a mistake in its interpretation of
the law, so we are sending the case back to it, so it can fix its
mistake."


>  (And if you want to follow the
> references, they have something that's as technical as a URL to be
> able write a concise pointer to a case or statute or law review
> article, but you can hardly blame them.)

    The legal citations are indeed stylized URL's in the form of the
tupple {Volume Number, Formal Abbreviation of the Name of Series of
Bound Cases in which the option was printed, The Page Number in the
referenced volume on which the text of the decision in the case starts}.

    Ironically, it is the copyright to this random assignment of
starting page numbers that enables legal publishing companies to charge
so much for researching the law, which in turn leads to higher fees
charged to clients.

-- Peter  (Building Bridges Between Law and CS)



_________________________________________________________________

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

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

Visit us on the web at: http://www.ieuc.org

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It's time to abandon brittle architectures with poorly factored
interfaces, gratuitous complexity, and kludged designs dominated
by sacrifices on the altar of backwards compatibility.

Such artifacts are vulnerable to cyber-attack, weigh down the
economy costing trillions of dollars in lost productivity, and
suffer from an impoverished conceptual model that lacks the
integration and elegance needed to empower end users to
get the most from advanced applications in the future.

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