In respect of the first point, while you say the President doesn't have the "last word", there were for example indications of US Customs officials ignoring court orders presumably on the instruction of the white house during the immigration order debacle.
That was an isolated incident and not by any means the norm. The US government will find ways to 'f' your company over if they so desire, but it will not usually be so crudely executed.
(I'm not a fan of US incorporation by the way)
As a lawyer I've thought a lot about this (and if anyone is working on this and wants to talk get in touch). There are two reasons:
1. Reasoning in law relies on complex language semantics, both in statute and case law. Take for example a court decision that says "in the circumstances of this case I do not agree that John v Doe applies". That can be expressed a million ways and I'm not sure our natural language processing can replace humans yet in this area.
2. There is a lot of copyright problems that need to be overcome. Companies like Lexis and Westlaw own the rights to a lot of decisions and even statutes and can paywall the . This is slowly changing however, for example in the UK recently the courts took back the rights to publish decisions.
It does not seem ethical to hold a person accountable for not following a law, if they do not have free access to read that law and the various ways the court has ruled to how that law should be applied.
That defense is for particular reasons not going to work. The supposition is trivial whether the texts are paywalled or not, because the shear amount of text doesn't leave any chance to read it all.
Clearly though, reasons for the texts to be free are obvious and reasons against it are less than before the proliferation of the internet.
I agree entirely however law is like all professions where access to information is only half the equation, its application and interpretation is derived from extensive training and experience. So I'd argue that until we nail 'Google for the law', access to free lawyers at least for the poor etc is more important than access to the legal databases
If you start from the assumption that the law is whatever lawyers and judges tend to think it is, then access to lawyers is more important. If you take the egalitarian perspective that the law is the law and a lawyer is just someone particularly skilled in applying it, then a person of average eduction should be able to handle a routine legal dispute without paying a specialist. This is what people have in mind when they want to make the law more available online.
If there are laws out there that are currently applied or interpreted differently than their plain meaning as written down, that's a failure of government. Either legislators should have fixed a stupid law, or judges should have thrown it out for vagueness.
The problem is that both of your assumptions are true. The fact is that the law is constantly being discovered. To the extent that an area of law is well explored, a layperson should be empowered to handle it alone, but to the extent that it is not, it requires abilities that have not been instilled in the average citizen.
>access to free lawyers at least for the poor etc is more important than access to the legal databases
That itself is a problem, while we have public defense lawyers, we don't have public preventive lawyers (who I can call and ask if what I'm about to do is altogether legal and what can I do to avoid run-ins with the law).
That's not really the service we want because those lawyers won't be able to give definitive answers for all but the simplest cases. What I think you really want is a government sponsored law office that is given special privileges.
1. They are tasked to give well researched legal advice in all fields.
2. Their advice should be minimally restrictive.
3. If a person faithfully follows the advice of the office the office assumes criminal and civil liability.
Individuals are not capable of evaluating the law without the aid of legal professionals. Worse, individuals don't have the ability to evaluate the quality of lawyers. This system would allow individuals to be secure that they're not heading into legal gray areas or situations where the legality is truly unknown until there's a trial.
I like this kind of system because it's in the best interest of such an office to give the most accurate advice possible.
> 2. Their advice should be minimally restrictive.
> 3. If a person faithfully follows the advice of the office the office assumes criminal and civil liability.
The problem is these two are in conflict. If the office gets in trouble for approving something they shouldn't then they'll have the incentive to be overly restrictive in what they approve.
A better solution is to make this office a subdivision of the justice department and then if they say you're allowed to do it then you can't be prosecuted for it. And if they say you aren't allowed to do it then you can hire your own lawyer to appeal the decision to a court, and they get penalties for being wrong.
This sounds like a process for giving any citizen standing to challenge a law, which I think would be a very significant change to the way the system works today. It naively sounds like a good change, but I suspect there would be some ill effects - e.g, companies asking over and over about slightly different ways to manage taxes to try and find a loophole, people on both sides of the Obamacare contraception mandate trying to prove that loopholes did or did not exist in the law...
You say that like it's a bad thing. Then people would actually know what the law is.
If you don't want people looking for loopholes then don't put so many in the law. When you pass thousands of pages of tax code and then companies spend a lot of time trying to save themselves billions of dollars, what did you expect to happen? That's what happens already.
I think it would be easy to DDOS the proposed system and yes, I think that would be bad. Feel free to explain why either that would not happen or why it would not be bad.
There are several places where I strongly believe that access to the law can meaningfully improve access to justice. And I hope, through our work at Open Law Library, we can show this to be true.
1) Educated lay-people. If you have good reading comprehension, and if your problem is one many other people have faced, there is a chance the law that pertains to your situation is clear and unambiguous. Access to the law in this case means you can resolve your issue.
2) Legal services at the margin. At the high end, where you are paying an attorney hundreds of dollars per hour, that attorney is passing database costs straight through to you, but you can afford it. At the low end, legal aid clinics usually receive free or reduced cost access to the databases. However, at the margin, when you are scraping together the money to pay a $30/hr lawyer to represent you in a civil matter, neither you nor the lawyer can afford to pay. It is in these cases on the margin where access to high quality laws can make a significant difference.
3) Secondary legal sources. Many legal aid clinics put out high quality secondary sources written at a grade school reading level. Where I volunteered, we had around 100. We could have had many, many more. They don't really take that long to write and the number of people helped per hour of writing was quite high. The problem, however, was maintaining them. Each document we added to our library represented a commitment of several hours to a couple days of work quarterly or biannually to review the law and update the document. It was this maintenance commitment that limited our ability to provide understandable legal documents. This time commitment can be cut by an order of magnitude by pushing pertinent changes to the law to legal aid clinics, rather than them having to sort through all laws for pertinent changes.
4) Government opinions. Many governments have legal departments that will provide opinions on the law. These opinions are often (though not always) written with a general audience in mind, and explain a particularly complex or often misunderstood part of the law. Unfortunately, these opinions are not easily discoverable, especially if you don't even know to look for them. Open Law Library works with jurisdictions to help them coordinate publishing, linking, and discoverability across branches and departments.
Into the future, as we build the foundation of computer-readable laws, others will build tools, apps, and bots on top of this foundation that will make the law truly accessible to all.
> It does not seem ethical to hold a person accountable for not following a law, if they do not have free access to read that law and the various ways the court has ruled to how that law should be applied.
Well, that's incompatible with a common law legal system. Common law literally means that we respect legal traditions that aren't always codified and are instead established by precedent and/or consensus via tradition. That's the reason you'll sometimes see precolonial British law cited in US legal memorandums or court rulings - those laws literally are not part of US legal code, but they may provide persuasive precedent.
So there not always a codified law to read, but that doesn't mean people can't be expected to uphold the societal structure.
The same works in reverse. If a law exists, it's possible for the law to become legally unenforceable (for a variety of reasons, not just court rulings) even without the law being repealed. So merely providing access to the legal code doesn't actually provide a complete picture of what the law is.
Engineers want to think about the law the way they think about code - it may not always do what you expect, but Von Neumann architecture means that it's at least consistent. But that's not how the law works - it's not always clear ahead of time what the inputs are (which is why litigation is so complicated), and that's even before you account for the judgment calls that enter the picture at different stages.
> Common law literally means that we respect legal traditions that aren't always codified and are instead established by precedent and/or consensus via tradition.
If access to court decisions is restricted, they hardly qualify as "established by precedent and/or consensus via tradition", no?
I'm saying that the set of things that can comprise "law" in a common law legal system is impossible to define precisely. So you could always find some obscure, hard-to-obtain source documenting a legal custom that could be used as persuasive precedent.
If we stated that (say) criminal laws could not be enforced unless the defendant had access to the full body of possible codes and precedent before the crime occurred, we would literally never be able to convict a single case, ever. Because any defense attorney could just find some arcane memo and prove that the defendant could not reasonably have been expected to have access to it before the crime occurred, and that would be sufficient for excusing them of culpability. And that's not even raising the question of whether or not they could reasonably be expected to interpret and understand the text, which would be the next hurdle. (The same applies to non-criminal cases too.)
(Persuasive precedent is not binding, so it's not "law", but it's undeniably influential enough that it's necessary to understanding the law.)
I think I understand your argument from the legal perspective but what about from a public records perspective? It still feels like the precedents that have been established inside the US legal system should be publicly available without restrictions. Sure, other restricted sources may end up incorporated but restricting acccess to actual US legal decisions feels like it only benefits those few with the access for commercial gain.
Any historically accepted source should still be available for establishing precident but that doesn't mean our legal system should conceal the decisions it has made.
If nothing else access to these decisions could be a great area of study for language processing.
>but what about from a public records perspective? It still feels like the precedents that have been established inside the US legal system should be publicly available without restrictions.
Yes, I agree with that. And in many cases (but not all), they are - court documents are generally available for nominal processing fees, though there's a long way to go before I'd say this is all truly "publicly available without [unnecessary] restrictions".
With some notable exceptions like FISA, I don't think most of the secrecy is out of a desire to conceal law from citizens. It's largely the fact that our legal system is shockingly low-tech and hasn't yet caught up to what technology now allows.
That state of it is actually quite sad, to be honest. I'm in South Africa, and I am baffled at how difficult it is to get access to the Acts that were approved by parliament and form part of the body of law. It's not even about precedent, and court-decisions, rulings, etc. Just the plain law, with all the out-dated portions removed/updated.
This makes it quite difficult for me, as an individual, to interpret and act on what the law says. Sure, we all know the "basics" of criminal law: Don't steal, hurt, go where you shouldn't, etc. But everything else (regulations) is a giant black-box of "you need to speak to a lawyer" and pay them money. There are probably hundreds of sites and blogs out there trying to help/guide people about what the regulations say, but that's a poor substitute and not something you want to rely on for anything more than mundane. There needs to be a clear, government-run, up-to-date resource that has all laws.
Sure, but rent-seeking, parasite lawyers will fight to prevent that, so that they can continue to extract money from the rest of us while being a big drag on the entire economy.
> our legal system is shockingly low-tech and hasn't yet caught up to what technology now allows.
Are there ways to improve this? What do you think the hurdles to technology adoption are in this field? Is it a document formatting problem, or a hosting problem?
Do we need to create a WordPress for state and local courts to adopt?
> Well, that's incompatible with a common law legal system. Common law literally means that we respect legal traditions that aren't always codified and are instead established by precedent and/or consensus via tradition.
> Engineers want to think about the law the way they think about code - it may not always do what you expect, but Von Neumann architecture means that it's at least consistent.
Well, that’s why Civil Law might be better – and why most Civil Law countries already have fulltext searchable archives of all laws and decisions. (the dejure indexing engine for Germany, for example, is quite awesome).
#2 is a really big barrier to innovation in this space.
Another issue is that the economics of codification and publishing disincentives existing publishers from releasing laws and codes in open and accessible formats. And without open and accessible formats, it makes it extremely difficult and unsustainable to build things on top of the law.
Can #2 really stand up to scrutiny? My understanding is that decisions and statutes are not copyrightable in the US as they are "edicts of government", and thus owning rights to them aught to be impossible.
what do you think of 3) the way we make law is deliberately "broken" such that inconsistent laws can be passed (with humans in the loop to sort it out) otherwise nothing would pass - if we could build a type checker for laws, active law would not type check and would be impossible to fix
This approach doesn't acknowledge that law is a dynamically typed language, to continue your analogy. It responds to societal concerns and emotional and frequently irrational reasoning. There's a saying bad cases make bad law and I think this isn't going to change any time soon.
Nevertheless dynamic languages can fail to typecheck. To continue the analogy:
try {
fair (trail);
} catch (e) {
if (e == InconsistentLawException) {
// Oops, divided by zero,
// add a tiny epsilon to the denominator and keep going
law += epsilon;
} else if (e == ClassCastException) {
// some types are more equal than others
settlement (trail);
} else {
// escalate to higher instance
mapReduce (court);
}
} finally {
// might silently fail if
// higher_instance == SCOTUS and
// SCOTUS.busy == true
sentence (trial) . await (appeal (higherinstance));
}
> This approach doesn't acknowledge that law is a dynamically typed language, to continue your analogy. It responds to societal concerns and emotional and frequently irrational reasoning.
The problem with this line of reasoning is that it leads down the wrong path. Formally verifying the consistency of the law cannot be done in practice because it has NP-complete problems inside of it. The amount of work it would take to create a legal code which is internally consistent and always yields an agreeable outcome is not feasible.
But it's foolish to go from there to the other pole where all the laws are overly broad and the only thing that determines whether you go to jail is prosecutorial discretion.
The formally-verified internally-consistent always-righteous version of the law is the unattainable platonic ideal. You never actually get there but progress is measured by whether we get closer today than we were yesterday.
> The amount of work it would take to create a legal code which is internally consistent and always yields an agreeable outcome is not feasible.
Is there something you can cite here? The infeasible thing to me is refactoring a pre-existing lawbase into something formally verifiable; if we could throw it all away and start over at the constitution, it might work.
The existing law isn't the underlying source of the complexity. It's that people want the complexity. They want killing to be against the law, but not if it was self defense, or you were under duress, or you couldn't reasonably know that your actions would kill someone etc.
You can easily pass a law that says all killing is illegal, but that isn't good enough. You either have to consider every possible thing that could happen in the universe and encode what should happen in each case into the law, which is clearly infeasible, or there will be things that can happen which you haven't considered ahead of time, and then you still have to specify something.
If what you specify is that unanticipated acts are illegal then everyone will be in prison. But if they aren't then it will be easy to find a provable loophole to murder. Neither of those is acceptable.
That's why we have judges. To address that. But that answer is still terrible because then you don't know what the law is until you're already in court. It's just less terrible than either putting everyone in prison or letting anyone get away with murder.
Which means the goal is to minimize the number of situations where that needs to happen, without causing the well-specified outcomes to be unrighteous.
This is one of the tools we are building at Open Law Library. Open Law Draft is a linter that finds common errors in draft bills right in Word as they are being drafted. Fixing the error before the bill becomes law is much easier than having to pass another law to fix it. Extending the analogy, Open Law Codify is essentially our compiler. We will be integrating the two so we can find more complex errors at the drafting stage rather than having to wait for the codification stage, as we do now.
Unlike what I think you are proposing though, our system must work with any law that is passed, not just laws we deem "correct". We simply write software that helps legislative bodies pass laws that are as close to what they deem correct as possible.
Then you want a safe incremental process that allows you to run unchecked code and annotate which code has been upgraded to meet the type checking standard - this is already done for javascript projects, you can introduce Flow to typecheck only the annotated functions in a file: https://flowtype.org/docs/existing.html
I am not a lawyer but I from my computational linguistics background I have some experience with Legal English:
1. From my admittedly limited experience legal language, while certainly complex, follows a clear set of rules to the extent its almost formulaic. There's no pragmatics (pragmatics is the main reason we don't have generalised natural language understanding yet: https://en.wikipedia.org/wiki/Pragmatics ) involved. Legal language is precise and its primary objective is to avoid ambiguity or potential for misinterpretation.
These features actually make legal documents a perfect area for application of NLP algorithms.
2. Frankly, I think this is outrageous. It's "Common Law" for a reason. How can one expect someone to abide by the law if the law is not commonly known but that knowledge is restricted to a select few? How law firms like those you mentioned could arrive at thinking about copyrighting legal decisions and thinking that's even remotely ethical is beyond me.
I'm pretty sure Lexis and Westlaw don't own the text of published cases or statutes. They do own the headnotes which are commonly seen in printed and electronic reporters.
See in part: MATTHEW BENDER & CO. v. WEST PUBLISHING CO., 158 F.3d 674 (2nd Cir. 1998)
For point one, it seems like increasing access would still help. It takes a lot of skill to read a mathematical proof and know if it is relevant to an open theorem, but making math publication public and searchable is still useful.
Im bummed to hear about point 2. We are all ruled by law, and the courts are a branch of government. Its not encouraging to know the legal documents that are used to govern me are owned and copyrighted by a private organization.
Uhm... isn't the entire _point_ of legal writing to be as unobfuscated and clear as possible? "Processing" legal documents should be tantamount to mapping words with boolean operators.
If it's not, the problem isn't with the software engineers...
hey eelliot. I'd love to get in touch. I'm a dev/lawyer to get more of my state's local laws/cases/templates on Github here in Vegas. Best way to contact you?
