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Whether and how it will happen is a different question from whether it could and should happen. Most legal rules could be vastly improved by reducing them to p

by shasta 14y ago

Whether and how it will happen is a different question from whether it could and should happen. Most legal rules could be vastly improved by reducing them to principles that are combined in a framework of cost/benefit analysis. One of the main reasons that hard cases frequently come up is because the law is, in software terms, extremely buggy. Those "corner cases" are mainly a problem because the law attempts to solve so many problems by partitioning into ad hoc cases. The law (meaning the courts and the legislative process, as well) is so completely broken that it's hard to imagine a fix actually happening in the US.

jacques_chester 14y ago
> Most legal rules could be vastly improved by reducing them to principles that are combined in a framework of cost/benefit analysis. Lawyers already do this. The world is still too complex to reduce to a single, central set of uniform principles. Instead you have lots of little pockets of temporary uniformity. What happens is: 1. Lots of disconnected cases. 2. One day, a lawyer or judge notices a pattern. 3. A new principle is expounded in a case. 4. Other judges might pick it up and it becomes the common law. Or they don't, and it doesn't. 5. If it's widely accepted, the new principle begins to accrete exceptions, odd outliers, dusty corners and so on. 6. One day, a lawyer or judge notices a pattern ... You need to stop thinking of law as a product and think of it as a process. It is not a static, manufactured good. It is a procedure for discovery.
- shasta 14y ago
  >> Most legal rules could be vastly improved by reducing them to principles that are combined in a framework of cost/benefit analysis. >Lawyers already do this. I'm not really sure what you mean by this, but how lawyers think about things is not really relevant to legal outcomes. Also, none of the lawyers I know employ anything like the reasoning I have in mind in their work. Finally, if your claim is that the outcomes produced by our byzantine legal system is equivalent to the outcomes that would be produced by a principled approach, then I think you are mistaken. > You need to stop thinking of law as a product and think of it as a process. You need to stop assuming that you know what I think :). I don't think it should be static. The law acts to model aspects of the world that society feels should relevant to legal outcomes. The world is far too complicated for that model to be perfect, in my preferred system or yours. So, of course, we will occasionally notice aspects of our world that are not modeled and deserve to be, and there should be a procedure for doing as much. There are many problem with the process we have in place. First, there aren't clean principles to begin with. The courts are tasked with ruling on the written law, which is highly imperfect. To the extent that the courts "discover" new principles out of the written law, they are effectively writing new law, which in theory isn't their job. Second, the principles should come before the outcomes. In your flow chart, the outcomes are decided first in a large body of cases and then eventually the pattern is recognized. But the whole point of a principled approach is to improve the quality of outcomes, not just to simplify the description of the poor outcomes that would have been arrived at by judges thinking hard about it. In general, I think you greatly overestimate the number of principles that would be necessary, in the right framework, to improve the legal system. But I recognize that the onus is on me to back that up and I'm not really in a position to propose a specific alternative system.
  - igurari 14y ago
    I think you are both right to a large extent, and the distinction is whether you are focused on the easy cases, the hard cases, or some point in between. The repetitiveness in the common law is a massive feature and precedent does make the majority of cases quite predictable. And the outcomes of most cases are very principled - just not always with the hardest cases. The limitation, though, is in knowing whether the facts push a case in one direction or another. Quality lawyering makes a huge difference there, and it is the lawyer's skill that enables her to figure out how to interpret and shape the facts. As both of you have essentially noted, there are a potentially infinite number of fact patterns, but a finite set of legal rules, so any system must apply an existing law to a new set of facts from time to time. Whether that is viewed as applying an existing law or creating a new law is in the eye of the beholder, and legislators and judges disagree about that all the time. And whether that is a bug or a feature, is a deeper philosophical question that doesn't get at what an expert system can/will do. I think the only way you'll get a truly effective expert system for the law is if the software is integrated with the people making the law - the legislatures and the judges. I'm doubtful that will happen. In part, that is because I am doubtful that computer systems will ever be able to decide cases in a way that seems independent, fair and humane to the ones being judged. Short of that, my own startup (judicata.com) is working on mapping the legal genome so that we can identify the core legal rules, and how they are applied to different fact patterns. We think we can make big strides with legal technology in the coming years. It's not an Apollo level undertaking, but it's a pretty massive undertaking nonetheless. We're hoping that a systematic approach at understanding the law at a deep level of detail will allow us to make some of what has been discussed here a reality.
    - shasta 14y ago
      Sounds interesting. Can you link to something that describes your startup's ambitions?
      - igurari 14y ago
        We have not published much about what we are doing, so I don't have an available link. I would be happy to discuss it on a one-to-one basis over email, though: itai at our domain.
rayiner 14y ago
As a lawyer and a software engineer, and I know enough about both to say your analogy is bunk. A better software analogy is the universe of Windows drivers. Corner cases come up because there are competing goals (performance, stability, development time, power management, compatibility), diverse stakeholders, unlimited hardware weirdness, etc.

by shasta 14y ago

jacques_chester 14y ago

> Most legal rules could be vastly improved by reducing them to principles that are combined in a framework of cost/benefit analysis. Lawyers already do this. The world is still too complex to reduce to a single, central set of uniform principles. Instead you have lots of little pockets of temporary uniformity. What happens is: 1. Lots of disconnected cases. 2. One day, a lawyer or judge notices a pattern. 3. A new principle is expounded in a case. 4. Other judges might pick it up and it becomes the common law. Or they don't, and it doesn't. 5. If it's widely accepted, the new principle begins to accrete exceptions, odd outliers, dusty corners and so on. 6. One day, a lawyer or judge notices a pattern ... You need to stop thinking of law as a product and think of it as a process. It is not a static, manufactured good. It is a procedure for discovery.

shasta 14y ago
>> Most legal rules could be vastly improved by reducing them to principles that are combined in a framework of cost/benefit analysis. >Lawyers already do this. I'm not really sure what you mean by this, but how lawyers think about things is not really relevant to legal outcomes. Also, none of the lawyers I know employ anything like the reasoning I have in mind in their work. Finally, if your claim is that the outcomes produced by our byzantine legal system is equivalent to the outcomes that would be produced by a principled approach, then I think you are mistaken. > You need to stop thinking of law as a product and think of it as a process. You need to stop assuming that you know what I think :). I don't think it should be static. The law acts to model aspects of the world that society feels should relevant to legal outcomes. The world is far too complicated for that model to be perfect, in my preferred system or yours. So, of course, we will occasionally notice aspects of our world that are not modeled and deserve to be, and there should be a procedure for doing as much. There are many problem with the process we have in place. First, there aren't clean principles to begin with. The courts are tasked with ruling on the written law, which is highly imperfect. To the extent that the courts "discover" new principles out of the written law, they are effectively writing new law, which in theory isn't their job. Second, the principles should come before the outcomes. In your flow chart, the outcomes are decided first in a large body of cases and then eventually the pattern is recognized. But the whole point of a principled approach is to improve the quality of outcomes, not just to simplify the description of the poor outcomes that would have been arrived at by judges thinking hard about it. In general, I think you greatly overestimate the number of principles that would be necessary, in the right framework, to improve the legal system. But I recognize that the onus is on me to back that up and I'm not really in a position to propose a specific alternative system.
- igurari 14y ago
  I think you are both right to a large extent, and the distinction is whether you are focused on the easy cases, the hard cases, or some point in between. The repetitiveness in the common law is a massive feature and precedent does make the majority of cases quite predictable. And the outcomes of most cases are very principled - just not always with the hardest cases. The limitation, though, is in knowing whether the facts push a case in one direction or another. Quality lawyering makes a huge difference there, and it is the lawyer's skill that enables her to figure out how to interpret and shape the facts. As both of you have essentially noted, there are a potentially infinite number of fact patterns, but a finite set of legal rules, so any system must apply an existing law to a new set of facts from time to time. Whether that is viewed as applying an existing law or creating a new law is in the eye of the beholder, and legislators and judges disagree about that all the time. And whether that is a bug or a feature, is a deeper philosophical question that doesn't get at what an expert system can/will do. I think the only way you'll get a truly effective expert system for the law is if the software is integrated with the people making the law - the legislatures and the judges. I'm doubtful that will happen. In part, that is because I am doubtful that computer systems will ever be able to decide cases in a way that seems independent, fair and humane to the ones being judged. Short of that, my own startup (judicata.com) is working on mapping the legal genome so that we can identify the core legal rules, and how they are applied to different fact patterns. We think we can make big strides with legal technology in the coming years. It's not an Apollo level undertaking, but it's a pretty massive undertaking nonetheless. We're hoping that a systematic approach at understanding the law at a deep level of detail will allow us to make some of what has been discussed here a reality.
  - shasta 14y ago
    Sounds interesting. Can you link to something that describes your startup's ambitions?
    - igurari 14y ago
      We have not published much about what we are doing, so I don't have an available link. I would be happy to discuss it on a one-to-one basis over email, though: itai at our domain.

rayiner 14y ago

As a lawyer and a software engineer, and I know enough about both to say your analogy is bunk. A better software analogy is the universe of Windows drivers. Corner cases come up because there are competing goals (performance, stability, development time, power management, compatibility), diverse stakeholders, unlimited hardware weirdness, etc.