8 ms·

Getting an answer from a court (is X legal?) takes a long time: at least a few years and several hundred thousand dollars. Far too long to wait before building

by tlb 7y ago

Getting an answer from a court (is X legal?) takes a long time: at least a few years and several hundred thousand dollars. Far too long to wait before building a business around X. Asking people to build the business first and then find out if it's legal isn't how a society of laws is supposed to work. Fast courts would be a huge benefit to society.

MattGaiser 7y ago
I also don't think you can just ask a court to answer a hypothetical in a binding way. You basically need to get into the legal problem first.
- freeone3000 7y ago
  This is an American doctrine, that there must be an "actual case or controversy" - Canadian courts can and do issue advisory opinions to interpret regulation.
  - Jommi 7y ago
    Which are still usually advisory and not legally binding advice.
    - TeMPOraL 7y ago
      I would hope they go a long way towards reducing your responsibility if you follow one and then run into a legal problem because of it.
- loteck 7y ago
  Pre-enforcement lawsuits do exist to answer questions for parties prior to taking actions that would result in liability. One was just recently decided in favor of the ACLU. https://www.techdirt.com/articles/20200402/13055544225/dc-court-says-terms-service-violations-cant-trigger-federal-cfaa-prosecutions.shtml https://www.techdirt.com/articles/20200402/13055544225/dc-co...
- nerfhammer 7y ago
  is that what suing for "declaratory relief" is, or is that only for civil law?
- mattbk1 7y ago
  Not a court, but government agencies can and do issue "guidance" documents after receiving feedback. For example, the EPA guidance on Class VI (CO2) injection wells [1] and IRS guidance on 45Q CO2 capture and storage credits [2] [1] https://www.epa.gov/uic/class-vi-guidance-documents https://www.epa.gov/uic/class-vi-guidance-documents [2] https://www.irs.gov/newsroom/irs-provides-answers-and-a-safe-harbor-on-carbon-capture-credits https://www.irs.gov/newsroom/irs-provides-answers-and-a-safe....
mkolodny 7y ago
This is exactly how two of the biggest startups of the past 15 years - Airbnb and Uber - were built. Airbnb and Uber built products that were in a legal gray area. Lawmakers are still catching up to them.
- jimmaswell 7y ago
  Seems like a good approach to me. Imagine if they waited and we were still stuck with taxis.
- pbourke 7y ago
  Key to their strategy was having deep enough pockets to fight many simultaneous legal and PR battles.
  - Thriptic 7y ago
    Key to their strategy was actually providing the public with something most people actually wanted, regardless of legality. Very few lawmakers want to aggressively go against public sentiment just because the law says they should.
    - pbourke 7y ago
      > Key to their strategy was actually providing the public with something most people actually wanted The people who want the service are not necessarily the same as the people who are affected by the externalities of the service. Everyone loves having AirBnb available to expand selection in NYC when they visit, but how many New Yorkers who aren’t AirBnb hosts love having tons of short term rentals in their building?
      - Thriptic 7y ago
        I agree that people didn't really understand what they were getting into fully when they initially agitated for it, but it's definitely the case that there was broad initial public support which is what allowed the companies to get a foothold.
baryphonic 7y ago
This is also a failure to build. We just accept it as a given that courts take too long, judges are too lazy to get their opinions out in a timely manner and the legal profession too often gets fat fees for slow-walking legal proceedings when technology exists to make expeditious dispute resolution much faster. For example, I can think of no reason why we can't mandate that discovery must use electronic format unless the information was never before recorded in an online electronic system. Given that I have never seen a functioning typewriter in a corporate office, I imagine that would smooth things a bit. Also, just as a matter of how the US legal system works, the presumption is that someone is innocent until challenged, whether by the state or by a private party. A prospective business could not file a petition with a court asking if their conduct was legal or not, since it's not really a controversy. But businesses will always do loads of due diligence with lawyers beforehand, who should help identify areas of legal risk.
- Animats 7y ago
  Read "Why Courts Don't Work" by Richard Neeley, who used to be chief justice of the West Virginia supreme court. Courts don't work because a lot of people don't want them to work. If you could get a judgement in a week in a minor labor case, employers would have to obey labor law, for example.
  - pmarca 7y ago
    See also https://www.amazon.com/Justice-Matters-Rescuing-system-twenty-first/dp/0963865412/ref=sr_1_5?dchild=1&keywords=roberta+katz&qid=1587267484&sr=8-5 https://www.amazon.com/Justice-Matters-Rescuing-system-twent...
- watwut 7y ago
  > We just accept it as a given that courts take too long, judges are too lazy to get their opinions out in a timely manner Is it being lazy or rather having tons of work that needs to be done too?
pmarca 7y ago
Yes! Law = code. Law should be turned into code, and made available to everyone. A great current attempt is https://donotpay.com/ https://donotpay.com/
- dodobirdlord 7y ago
  No, law is not code and it’s very important that it’s not code. Law is subject to interpretation, and that’s great. When bugs are discovered in law, they can be retroactively corrected.
  - pmarca 7y ago
    Are bugs discovered and corrected faster today in law or in code?
    - atoav 7y ago
      Yes
    - 0x8BADF00D 7y ago
      Sure, but is immutability more important in law or in code? Updating a smart contract seems to be as tedious as changing a law.
    - PeterisP 7y ago
      The key part is that the court system can correct for a bug before the law itself is changed; it's a way to fix things as the code is being executed for a particular case, before the developers have even identified how/if the bug applies for other cases and figured out a general fix, much less implemented one.
    - jka 7y ago
      In each case it may depend upon the 'application'. For easily-understood fields undergoing well-scrutinized legal code changes it's (presumably) likely that legal drafting issues can be caught and fixed early. Conversely, in software projects (even open source ones) where the users and authors are few and/or fail to pay attention to mistakes and errors, it could take years to report and fix issues. All that said, in the presence of a mindful, careful and effective engineering team with responsive users, it does seem that software - or at least software processes like source control, code review and the democratized ability to contribute code changes - has an evolutionary advantage.
darkerside 7y ago
Problem is, the faster courts are, the more likely people are to actually wait for them, which ends up a net slowdown. Really the only path to success is, take a risk to try to beat the competition and hope the courts side with you in the end. And if you're successful, they probably will.
- Aeolun 7y ago
  Build more courts until they can deal with the volume, or fix so your laws so that less people need to go to court
Gfran 7y ago
IMO this is a classic case of loss aversion. Enforcers of law are put in a position to make subjective decisions that impact them personally. They don’t want to make a decision. They want someone else to make a decision. Decision stew until they can be disassociated with any person or group. This takes time. Usually the decision is tempered to absolve all parties and thus be convoluted and misinterpreted. Rinse and repeat.

by tlb 7y ago

MattGaiser 7y ago

I also don't think you can just ask a court to answer a hypothetical in a binding way. You basically need to get into the legal problem first.

freeone3000 7y ago
This is an American doctrine, that there must be an "actual case or controversy" - Canadian courts can and do issue advisory opinions to interpret regulation.
- Jommi 7y ago
  Which are still usually advisory and not legally binding advice.
  - TeMPOraL 7y ago
    I would hope they go a long way towards reducing your responsibility if you follow one and then run into a legal problem because of it.
loteck 7y ago
Pre-enforcement lawsuits do exist to answer questions for parties prior to taking actions that would result in liability. One was just recently decided in favor of the ACLU. https://www.techdirt.com/articles/20200402/13055544225/dc-court-says-terms-service-violations-cant-trigger-federal-cfaa-prosecutions.shtml https://www.techdirt.com/articles/20200402/13055544225/dc-co...
nerfhammer 7y ago
is that what suing for "declaratory relief" is, or is that only for civil law?
mattbk1 7y ago
Not a court, but government agencies can and do issue "guidance" documents after receiving feedback. For example, the EPA guidance on Class VI (CO2) injection wells [1] and IRS guidance on 45Q CO2 capture and storage credits [2] [1] https://www.epa.gov/uic/class-vi-guidance-documents https://www.epa.gov/uic/class-vi-guidance-documents [2] https://www.irs.gov/newsroom/irs-provides-answers-and-a-safe-harbor-on-carbon-capture-credits https://www.irs.gov/newsroom/irs-provides-answers-and-a-safe....

mkolodny 7y ago

This is exactly how two of the biggest startups of the past 15 years - Airbnb and Uber - were built. Airbnb and Uber built products that were in a legal gray area. Lawmakers are still catching up to them.

jimmaswell 7y ago
Seems like a good approach to me. Imagine if they waited and we were still stuck with taxis.
pbourke 7y ago
Key to their strategy was having deep enough pockets to fight many simultaneous legal and PR battles.
- Thriptic 7y ago
  Key to their strategy was actually providing the public with something most people actually wanted, regardless of legality. Very few lawmakers want to aggressively go against public sentiment just because the law says they should.
  - pbourke 7y ago
    > Key to their strategy was actually providing the public with something most people actually wanted The people who want the service are not necessarily the same as the people who are affected by the externalities of the service. Everyone loves having AirBnb available to expand selection in NYC when they visit, but how many New Yorkers who aren’t AirBnb hosts love having tons of short term rentals in their building?
    - Thriptic 7y ago
      I agree that people didn't really understand what they were getting into fully when they initially agitated for it, but it's definitely the case that there was broad initial public support which is what allowed the companies to get a foothold.

baryphonic 7y ago

This is also a failure to build. We just accept it as a given that courts take too long, judges are too lazy to get their opinions out in a timely manner and the legal profession too often gets fat fees for slow-walking legal proceedings when technology exists to make expeditious dispute resolution much faster. For example, I can think of no reason why we can't mandate that discovery must use electronic format unless the information was never before recorded in an online electronic system. Given that I have never seen a functioning typewriter in a corporate office, I imagine that would smooth things a bit. Also, just as a matter of how the US legal system works, the presumption is that someone is innocent until challenged, whether by the state or by a private party. A prospective business could not file a petition with a court asking if their conduct was legal or not, since it's not really a controversy. But businesses will always do loads of due diligence with lawyers beforehand, who should help identify areas of legal risk.

Animats 7y ago
Read "Why Courts Don't Work" by Richard Neeley, who used to be chief justice of the West Virginia supreme court. Courts don't work because a lot of people don't want them to work. If you could get a judgement in a week in a minor labor case, employers would have to obey labor law, for example.
- pmarca 7y ago
  See also https://www.amazon.com/Justice-Matters-Rescuing-system-twenty-first/dp/0963865412/ref=sr_1_5?dchild=1&keywords=roberta+katz&qid=1587267484&sr=8-5 https://www.amazon.com/Justice-Matters-Rescuing-system-twent...
watwut 7y ago
> We just accept it as a given that courts take too long, judges are too lazy to get their opinions out in a timely manner Is it being lazy or rather having tons of work that needs to be done too?

pmarca 7y ago

Yes! Law = code. Law should be turned into code, and made available to everyone. A great current attempt is https://donotpay.com/ https://donotpay.com/

dodobirdlord 7y ago
No, law is not code and it’s very important that it’s not code. Law is subject to interpretation, and that’s great. When bugs are discovered in law, they can be retroactively corrected.
- pmarca 7y ago
  Are bugs discovered and corrected faster today in law or in code?
  - atoav 7y ago
    Yes
  - 0x8BADF00D 7y ago
    Sure, but is immutability more important in law or in code? Updating a smart contract seems to be as tedious as changing a law.
  - PeterisP 7y ago
    The key part is that the court system can correct for a bug before the law itself is changed; it's a way to fix things as the code is being executed for a particular case, before the developers have even identified how/if the bug applies for other cases and figured out a general fix, much less implemented one.
  - jka 7y ago
    In each case it may depend upon the 'application'. For easily-understood fields undergoing well-scrutinized legal code changes it's (presumably) likely that legal drafting issues can be caught and fixed early. Conversely, in software projects (even open source ones) where the users and authors are few and/or fail to pay attention to mistakes and errors, it could take years to report and fix issues. All that said, in the presence of a mindful, careful and effective engineering team with responsive users, it does seem that software - or at least software processes like source control, code review and the democratized ability to contribute code changes - has an evolutionary advantage.

darkerside 7y ago

Problem is, the faster courts are, the more likely people are to actually wait for them, which ends up a net slowdown. Really the only path to success is, take a risk to try to beat the competition and hope the courts side with you in the end. And if you're successful, they probably will.

Aeolun 7y ago
Build more courts until they can deal with the volume, or fix so your laws so that less people need to go to court

Gfran 7y ago

IMO this is a classic case of loss aversion. Enforcers of law are put in a position to make subjective decisions that impact them personally. They don’t want to make a decision. They want someone else to make a decision. Decision stew until they can be disassociated with any person or group. This takes time. Usually the decision is tempered to absolve all parties and thus be convoluted and misinterpreted. Rinse and repeat.