5 ms·

> Mathematicians don't just write down a proof and cross their fingers. On the flip side, this is exactly what a lot of lawyers do when writing contracts. Not

by eqmvii 9y ago

> Mathematicians don't just write down a proof and cross their fingers. On the flip side, this is exactly what a lot of lawyers do when writing contracts. Not necessarily maliciously or negligently, but it can still make for fun questions of interpretation when things don't go as expected.

jacquesm 9y ago
There is a nice parallel between the legal profession and programming. Programmers write software in such a way that they try (if they're any good) to reduce the number of assumptions made and the number of bugs and the ambiguities in their code. Failure to do so results in undefined behavior, crashing code and in internet facing code in possibly being hacked. Lawyers write code into contracts. Good lawyers try to do so by removing ambiguity where ever they can. Failure to do so results in court cases where that ambiguity is resolved, and in some cases will result in damage for the party that originally contracted them to write the code. Neither lawyers nor programmers are legally liable for such fuck-ups.
- marcoperaza 9y ago
  >Neither lawyers nor programmers are legally liable for such fuck-ups. Lawyers can be held liable if they do a horrible enough job. Likewise for programmers, and there are a lot of people advocating for strict liability for software defects in commercial products/services.
  - jacquesm 9y ago
    > Lawyers can be held liable if they do a horrible enough job. They can be but it rarely happens. The most likely outcome is that another lawyer (or even the same one) will send you another large bill to try to fix the problem. This too is roughly analogous to what happens in programming.
- Splines 9y ago
  I've always wondered if it were possible to express legal things via code. I imagine that there's a lot of ambiguity that needs "filling in" by a human, but there must be some set of legal arguments that can be literally codified. Being able to run test cases through such a construct would be immensely useful - for example, how would changes to health care law impact someone? They could have unit tests that compare different outcomes and make it easier to understand how a new law would change things. People could ask very precise questions about how things would impact them.
  - marcoperaza 9y ago
    Very few things in law are truly reducible to some hard, bright-line rule. There are conflicting interests all worthy of consideration and that therefore defy a single objective rule. So even in the presence of extensive precedent, there is usually a grey area requiring case-by-case judgment based on intuitions of fairness and equity. Say you own an apartment building with a view of the ocean and I own the plot directly between it and the ocean. I threaten to build a wall that blocks your building's view of the ocean unless you buy my plot for 10x more than its market worth. Should that be legal? Say you succumb to my demand. Should you be able to then sue me and recover the excessive payment? I think many would have the intuition that my threat should not be legal and any resulting contract not valid, since it was extracted by duress. But how about Firefox selling its search bar to Google for billions of dollars, carrying the implicit threat to use a different default provider should Google not pay. That seems more fair than the previous example, but why? And how do you formulate that difference into a hard rule, without relying on human beings' (i.e. judge and jury) intuitions of fairness and equity? Here is what the Restatement of Contracts has to say: (1) A threat is improper if (a) what is threatened is a crime or a tort, or the threat itself would be a crime or a tort if it resulted in obtaining property, (b) what is threatened is a criminal prosecution, (c) what is threatened is the use of civil process and the threat is made in bad faith, or (d) the threat is a breach of the duty of good faith and fair dealing under a contract with the recipient. (2) A threat is improper if the resulting exchange is not on fair terms, and (a) the threatened act would harm the recipient and would not significantly benefit the party making the threat, (b) the effectiveness of the threat in inducing the manifestation of assent is significantly increased by prior unfair dealing by the party making the threat, or (c) what is threatened is otherwise a use of power for illegitimate ends. Look at all of the subjective terminology: "bad faith", "good faith", "fair dealing", "fair terms", "significantly". And look at (2)(c), "otherwise a use of power for illegitimate ends". What does that even mean? It's basically a surrender, acknowledging that it is impossible to formulate a rule ex ante that totally captures our notions of fairness as they should be applied in every possible situation.
- inopinatus 9y ago
  The law is not a programming language. Believing so is a common misconception amongst engineers, but representing it as such is likely (as I have said in this forum before) to lead to disappointment, frustration, anger, needless bickering, extended conflict, and vexatiously long, hard to read, and mostly unenforceable contracts.
  - mcguire 9y ago
    ... like a lot of meetings with engineers. Particularly standards meetings.
  - amazingman 9y ago
    It’s a useful metaphor, if used judiciously. The law may not be programming, but it could be argued that it is engineering.
- sheltron 9y ago
  I used to think the same thing, until I learned that there are entire chapters of contracts textbooks on how to use and manage ambiguities effectively. a well-written contract many times has intentional ambiguities meant to limit liability in certain cases, or to use as fodder in negotiations.

by eqmvii 9y ago

jacquesm 9y ago

There is a nice parallel between the legal profession and programming. Programmers write software in such a way that they try (if they're any good) to reduce the number of assumptions made and the number of bugs and the ambiguities in their code. Failure to do so results in undefined behavior, crashing code and in internet facing code in possibly being hacked. Lawyers write code into contracts. Good lawyers try to do so by removing ambiguity where ever they can. Failure to do so results in court cases where that ambiguity is resolved, and in some cases will result in damage for the party that originally contracted them to write the code. Neither lawyers nor programmers are legally liable for such fuck-ups.

marcoperaza 9y ago
>Neither lawyers nor programmers are legally liable for such fuck-ups. Lawyers can be held liable if they do a horrible enough job. Likewise for programmers, and there are a lot of people advocating for strict liability for software defects in commercial products/services.
- jacquesm 9y ago
  > Lawyers can be held liable if they do a horrible enough job. They can be but it rarely happens. The most likely outcome is that another lawyer (or even the same one) will send you another large bill to try to fix the problem. This too is roughly analogous to what happens in programming.
Splines 9y ago
I've always wondered if it were possible to express legal things via code. I imagine that there's a lot of ambiguity that needs "filling in" by a human, but there must be some set of legal arguments that can be literally codified. Being able to run test cases through such a construct would be immensely useful - for example, how would changes to health care law impact someone? They could have unit tests that compare different outcomes and make it easier to understand how a new law would change things. People could ask very precise questions about how things would impact them.
- marcoperaza 9y ago
  Very few things in law are truly reducible to some hard, bright-line rule. There are conflicting interests all worthy of consideration and that therefore defy a single objective rule. So even in the presence of extensive precedent, there is usually a grey area requiring case-by-case judgment based on intuitions of fairness and equity. Say you own an apartment building with a view of the ocean and I own the plot directly between it and the ocean. I threaten to build a wall that blocks your building's view of the ocean unless you buy my plot for 10x more than its market worth. Should that be legal? Say you succumb to my demand. Should you be able to then sue me and recover the excessive payment? I think many would have the intuition that my threat should not be legal and any resulting contract not valid, since it was extracted by duress. But how about Firefox selling its search bar to Google for billions of dollars, carrying the implicit threat to use a different default provider should Google not pay. That seems more fair than the previous example, but why? And how do you formulate that difference into a hard rule, without relying on human beings' (i.e. judge and jury) intuitions of fairness and equity? Here is what the Restatement of Contracts has to say: (1) A threat is improper if (a) what is threatened is a crime or a tort, or the threat itself would be a crime or a tort if it resulted in obtaining property, (b) what is threatened is a criminal prosecution, (c) what is threatened is the use of civil process and the threat is made in bad faith, or (d) the threat is a breach of the duty of good faith and fair dealing under a contract with the recipient. (2) A threat is improper if the resulting exchange is not on fair terms, and (a) the threatened act would harm the recipient and would not significantly benefit the party making the threat, (b) the effectiveness of the threat in inducing the manifestation of assent is significantly increased by prior unfair dealing by the party making the threat, or (c) what is threatened is otherwise a use of power for illegitimate ends. Look at all of the subjective terminology: "bad faith", "good faith", "fair dealing", "fair terms", "significantly". And look at (2)(c), "otherwise a use of power for illegitimate ends". What does that even mean? It's basically a surrender, acknowledging that it is impossible to formulate a rule ex ante that totally captures our notions of fairness as they should be applied in every possible situation.
inopinatus 9y ago
The law is not a programming language. Believing so is a common misconception amongst engineers, but representing it as such is likely (as I have said in this forum before) to lead to disappointment, frustration, anger, needless bickering, extended conflict, and vexatiously long, hard to read, and mostly unenforceable contracts.
- mcguire 9y ago
  ... like a lot of meetings with engineers. Particularly standards meetings.
- amazingman 9y ago
  It’s a useful metaphor, if used judiciously. The law may not be programming, but it could be argued that it is engineering.
sheltron 9y ago
I used to think the same thing, until I learned that there are entire chapters of contracts textbooks on how to use and manage ambiguities effectively. a well-written contract many times has intentional ambiguities meant to limit liability in certain cases, or to use as fodder in negotiations.