Poor incentives and interests in obscuration, not poor skills, drive poor writing in legal language
perhaps you mean "incentives" and "obfuscation"
Poor writing, not specialized concepts, drives difficulty with legal language
121–130 of 337 posts
Re: Poor writing, not specialized concepts, drives difficulty with legal language
#122My experience working as a patent examiner agrees fully with the title: legal texts tend to be hard mostly because they're poorly written. (DOC lawyers make me add this: This post is just my personal opinion, not that of the USPTO, DOC, US govt., etc.) I've been trained in patent legal terminology, which isn't that bad. Patent documents are still frequently difficult to understand. I have one application on my docket…
If the examiners can't enforce enablement, doesn't that mean it isn't a true requirement? And that in fact patents wind up being drafted not for the layperson?
Yes, my personal opinion is that enablement is not a true requirement in the US. I think a lot of problems with the current patent system would be helped by making the law stricter about enablement and also giving the USPTO more resources (money, in particular) so that examiners can enforce the enablement requirement.
Also, to be clear: Patents legally aren't for laypeople. They're for people working in the field of the invention.
Re: Poor writing, not specialized concepts, drives difficulty with legal language
#123IANAL, but I AM a patent agent, which means I passed the Patent Bar. So I haven't dealt in contracts, but a lot of the same considerations apply to patent claims. There is some claim language which is absolutely not required and any lawyer who uses it is just showing off. The article mentioned "aforesaid" which is a prime example in contracts (in patent claims, it's just "said"). For example: A TCP packet, comprising…
Your last example is why reading the law is tricky and why we need both a push for plain language and a push to explain language that is necessarily very specific.
In general, yeah, but I have mixed feelings on that particular one. Claims wouldn't be much more understandable if they said:
A chair, with four legs, a seat, and a back, and possibly other elements.
A good explanation for obtuseness in legal language is:
In normal writing, you're trying to be understood. In legal writing, you're trying to make it impossible to be misunderstood.
Re: Poor writing, not specialized concepts, drives difficulty with legal language
#124For everyone commenting "laypeople aren't the intended audience", this monstrosity was a recent Texas constitutional ballot proposal, i.e. all voters in the state were asked to vote on it: > The constitutional amendment authorizing the legislature to provide for the reduction of the amount of a limitation on the total amount of ad valorem taxes that may be imposed for general elementary and secondary public school pu…
Whoever wrote or approved that should be fired. Whether they are a lawyer or politician, it matters not. To parse it one needs to write it out, draw brackets around concepts, and then add lines between the potentially-grouped concepts because there is so much in-between that you forget it all by the time you get to the end.
Apparently that's just the title, though what the proposition does is apparently appending a similarly incomprehensible sentence to the state consitution:
BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1-b, Article VIII, Texas Constitution,
is amended by adding Subsection (d-2) to read as follows:
(d-2) Notwithstanding Subsections (d) and (d-1) of this
section, the legislature by general law may provide for the
reduction of the amount of a limitation provided by Subsection (d)
of this section and applicable to a residence homestead for a tax
year to reflect any statutory reduction from the preceding tax year
in the maximum compressed rate, as defined by general law, or a
successor rate of the maintenance and operations taxes imposed for
general elementary and secondary public school purposes on the
homestead. A general law enacted under this subsection may take
into account the difference between the tier one maintenance and
operations rate for the 2018 tax year and the maximum compressed
rate for the 2019 tax year applicable to a residence homestead and
any reductions in subsequent tax years before the tax year in which
the general law takes effect in the maximum compressed rate
applicable to a residence homestead.
Re: Poor writing, not specialized concepts, drives difficulty with legal language
#125For everyone commenting "laypeople aren't the intended audience", this monstrosity was a recent Texas constitutional ballot proposal, i.e. all voters in the state were asked to vote on it: > The constitutional amendment authorizing the legislature to provide for the reduction of the amount of a limitation on the total amount of ad valorem taxes that may be imposed for general elementary and secondary public school pu…
Whoever wrote or approved that should be fired. Whether they are a lawyer or politician, it matters not. To parse it one needs to write it out, draw brackets around concepts, and then add lines between the potentially-grouped concepts because there is so much in-between that you forget it all by the time you get to the end.
I don't think the wording is the problem. It says what it does.
The problem is in the effect of the law.
Article 8 Section 1-b (d) says that an elderly or disabled person's property taxes (on their home) can't be increased if the money would go to public schools. It also establishes the concept that their current (unincreasable) educational property taxes are transferable property; they can take this "limitation" with them if they move.
However, while it establishes the concept, it doesn't enact anything. Section 1-b (d) doesn't say that people can take their limitation with them if they move. It says that the legislature is free to make a law allowing them to do so:
> The legislature, by general law, may provide for the transfer of all or a proportionate amount of a limitation provided by this subsection for a person who qualifies for the limitation and establishes a different residence homestead.
It also has two clauses, which I assume were added by amendment, specifying a reduced limitation for the year 1997 and for the year 2015. I didn't notice any clause authorizing the legislature to enact this type of reduction, but they seem to have managed to do it all the same.
Anyway, the new subsection also doesn't make any changes to the limitation. Like the clause about transferring your limitation from one home to another home, this one authorizes the legislature to modify the limitation under certain circumstances:
> Notwithstanding Subsections (d) and (d-1) of this section, the legislature by general law may provide for the reduction of the amount of a limitation provided by Subsection (d) of this section and applicable to a residence homestead for a tax year to reflect any statutory reduction from the preceding tax year in the maximum compressed rate, as defined by general law, or a successor rate of the maintenance and operations taxes imposed for general elementary and secondary public school purposes on the homestead.
Bad writing isn't the reason this is difficult to understand. The reason is that there are too many layers of indirection; the system itself is difficult to understand, and therefore any description of it will also be difficult to understand.
The only effect of this law appears to be to authorize the state legislature to pass laws. They could already do that. What is the effect supposed to be?
Re: Poor writing, not specialized concepts, drives difficulty with legal language
#126For everyone commenting "laypeople aren't the intended audience", this monstrosity was a recent Texas constitutional ballot proposal, i.e. all voters in the state were asked to vote on it: > The constitutional amendment authorizing the legislature to provide for the reduction of the amount of a limitation on the total amount of ad valorem taxes that may be imposed for general elementary and secondary public school pu…
I've rewritten the clause by moving "prepositional phrases" into the noun phrases to avoid as much nesting as possible. For example, instead of saying "the husband of the woman, I'd replace it with the woman's husband." Here's what I think it says: "This constitutional amendment authorizes the legislature to set the ad valorem taxes total reduction amounts that may be imposed for general elementary and secondary publ…
Aren't such long phrases horrible writing, kind of by default?
Re: Poor writing, not specialized concepts, drives difficulty with legal language
#127Earlier quoted context omitted.
American patents are written in a language that isn't English. It's very precise if you can learn to read it, though. The same seems to hold for contracts, but to a lesser degree.
I'm a patent examiner and I can't agree with "It's very precise if you can learn to read it". A large fraction of patent applications I've worked on are unclear. I even wrote a linter to help catch some problems. (DOC lawyers make me add this: This post is just my personal opinion, not that of the USPTO, DOC, US govt., etc.) Edit: I will agree that patent claims can be precise, but so can normal English. I think pate…
Wow, this is fascinating. Do you know how many examiners are using this tool? Why did you choose to make the default configuration more nitpicky than yourself, and is this the config you use when running the tool?
Re: Poor writing, not specialized concepts, drives difficulty with legal language
#128Earlier quoted context omitted.
> I think the reason contracts aren't readable to laypeople is because laypeople aren't the intended audience. This doesn't make sense. The parties to the contract are presumably laypeople, and they have to understand it before they agree to it and sign it since one of the legal requirements for a valid contract is a meeting of the minds, meaning a common understanding between the parties of what each of them is agre…
While the parties are usually laypeople, the drafters and readers of significance are almost always lawyers. If you decide to try to bring a claim against your mortgage lender, will you have a lawyer read your mortgage agreement before you file suit? Surely.
> While the parties are usually laypeople, the drafters and readers of significance are almost always lawyers.
I disagree. First, many contracts are not drafted by lawyers. Mortgage notes, which you mention, usually are; but, for example, a real estate sales contract in most states is standard boilerplate language that was drafted by realtors, not lawyers.
Second, saying that lawyers have to read the contract if a dispute goes to court doesn't mean lawyers "almost always" are the readers of significance, since most contracts never result in a dispute that goes to court. If a dispute goes to court, then of course it is prudent to hire a lawyer to represent your interests. But if contract language has done its job properly, there will never be a dispute that needs to go to court, because both parties--lay people--will have had a common understanding of what the contract says and will act in good faith to fulfill it.
Re: Poor writing, not specialized concepts, drives difficulty with legal language
#129Poor incentives and interests in obscuration, not poor skills, drive poor writing in legal language
perhaps you mean "incentives" and "obfuscation"
I did mean incentives (typo), but obscuration seems fitting: "the action of hiding or concealing something", even if obfuscation might be a better fit.
Re: Poor writing, not specialized concepts, drives difficulty with legal language
#130Earlier quoted context omitted.
I'm a patent examiner and I can't agree with "It's very precise if you can learn to read it". A large fraction of patent applications I've worked on are unclear. I even wrote a linter to help catch some problems. (DOC lawyers make me add this: This post is just my personal opinion, not that of the USPTO, DOC, US govt., etc.) Edit: I will agree that patent claims can be precise, but so can normal English. I think pate…
How do you become a patent examiner? Could anyone do it for their area of expertise or is it more like being a specialized researcher specifically for patent applications?
Apply on USAJOBS: https://www.usajobs.gov/Search/Results?k=patent+examiner
Looks like the USPTO is hiring in multiple areas right now.
It might take a couple attempts to get hired. I was rejected the first time I applied.
The USPTO doesn't care much about an applicant's background aside from whether the applicant has a technical degree. New examiners with expertise in particular areas probably won't be assigned to their areas of expertise, even if there's a strong demand for examiners in those areas. Yes, this makes no sense, but it's how the USPTO operates at the moment. I had zero experience with the areas I was assigned before I became an examiner.
(Again, this is all just my opinion, not that of the USPTO, US govt., etc.)