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Poor writing, not specialized concepts, drives difficulty with legal language

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Re: Poor writing, not specialized concepts, drives difficulty with legal language

#211

Post by pdonis »

zaphar wrote: post #150
pdonis wrote: post #133

Earlier quoted context omitted.

> Then what hope is there for a layperson to do anything of significance without first having a lawyer vet the EULA? I think this focuses attention on the wrong thing. A counterparty that is acting in good faith will not put absurdly long legalese in a contract, because if they are acting in good faith, it is in their interest to reach a genuine meeting of the minds with you, because fulfilling the contract will bene…

By this reasoning the vast majority of lawyers drafting contracts are not acting in good faith because the vast majority of lawyers are drafting obtuse unreadable contracts. Which is perhaps the case but the current reality is that encountering readable contracts is the exception not the common case.

> By this reasoning the vast majority of lawyers drafting contracts are not acting in good faith because the vast majority of lawyers are drafting obtuse unreadable contracts

More precisely, the clients the lawyers are representing aren't acting in good faith because they are fine with their lawyers doing that. As your next remark suggests, this is indeed the current reality: legal instruments like contracts are not used to enable win-win agreements that create wealth, but as tools of predation. That's not how it's supposed to be, but it is, unfortunately, often how it is.

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#212

Post by rayiner »

mannykannot wrote: post #207
dctoedt wrote: post #198

Earlier quoted context omitted.

> a bunch of men who had just used guns they had lying around their farms to form militias and overthrow their government. That pretty seriously overstates the case: The American Revolution started out that way, but as time went on, the Continental Army acquired serious artillery and became reasonably professional — thanks largely to Henry Knox; Baron von Steuben; and the Marquis de La Fayette — and the decisive fact…

This is true, but as you say, the revolution started out the way rayiner describes it, and it seems very plausible that the 2nd. amendment was motivated by that specific circumstance. Personally, I think we would have been better off without the 2nd amendment, and the framers of the constitution may not have foreseen the role it has come to play in politics (if so, it would be far from the only case), but I cannot fi…

The framers didn’t anticipate armies becoming permanent institutions, which is why we have a “no standing army” requirement that we just kind of ignore. But even that only makes the second amendment clearer: if you don’t have a standing army, who has the guns? The answer is militias comprised of heavily armed citizenry.

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#213

Post by eru »

wolverine876 wrote: post #178
xhevahir wrote: post #94

Earlier quoted context omitted.

The assumption of most of the comments here is that bad writing is a matter of incompetence, but in the case of public policy I think Hanlon's Razor no longer applies. Given what we know about Texas politics and American ballot measures in general, it's quite possible that the ambiguity was introduced deliberately to give big landowners (or rather their lawyers) extra wiggle room. If that's true then the only communi…

> bad writing is a matter of incompetence Effective, clear expression needs training, practice and attention. Homo sapiens write as we do because in only 5,000 years we haven't evolved to write naturally and must labor at it. Clear writing also needs clear thought, obviously. "Thinking is the hardest work there is, which is the probable reason why so few engage in it."

Our talking isn't necessarily all that much clearer, and we've been doing it for much longer than writing.

(Though to be fair, almost all talking used to be done in an interactive setting, where you can ask clarification questions.)

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#214

Post by chaps »

jimz wrote: post #205
chaps wrote: post #29

Earlier quoted context omitted.

Yeah. Law is weird and gets weirder when you scrutinize it as far as it can be scrutinized, which often happens in court. Not contract law, but I've been in two years of FOIA litigation to resolve a legal interpretation of "would" vs "could", and how that applies to a comma-separated list of categories. It's beyond maddening how long legal interpretation issues can go on for. It sucks, but sometimes the verbosity is…

Considering that two years ago the Supreme Court ended up having to hold that the use of the indefinite article "a" in the phrase "a notice to appear" means a singular document that fits the definition of said notice instead of multiple notices sent piecemeal, even clear legal language can somehow wind up being challenged all the way to the top. The opinion, which actually makes for some delightful grammar shade from…

That's incredibly interesting, thanks for sharing and the hilarious good wishes :)

Here's the IL Appellate court's opinion in my suit if you're curious - lots of discussion at the intersection of SQL injection and esoteric legal interpretation: https://www.illinoiscourts.gov/resources/5ff80f52-17df-4b2a-...

(We won the at the Appellate, but it's going to IL Supreme Court..)

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#215

Post by eru »

hnick wrote: post #147
hn_throwaway_99 wrote: post #48

For 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 wonder if it's a programmer thing, but as I read that I realised I was mentally bracketing related words together almost like a token parser to build a syntax tree.

Describing it like that is a programmer thing, but the mental operation itself might be more common?

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#216

Post by Pxtl »

photochemsyn wrote: post #89

Here's a good example of 'center-embedded clauses' making a paragraph difficult to interpret - it's from the revamped USA-Canada-Mexico trade deal, specifically a side agreement between the USA and Canada on energy-related trade: > "Each Party shall endeavor to ensure that energy-related activities that do not result in a facility exceeding its previously authorized capacity and that are limited to performing mainten…

I feel like complex sentences like this need braces to make them clear. Like, programming-language-style indentation would help a lot.

    "
    Each Party shall endeavor to ensure that {
      energy-related activities that {
        do not result in a facility exceeding its previously authorized capacity 
        AND that are limited to {
          performing maintenance work on, 
          OR ensuring the safety of, 
        } existing cross-border infrastructure 
      } may be undertaken under the initial authorization and shall not require a new authorization.
    }
    "
this is silly, but in this view I can clearly see "okay, where's the beginning and end of the stuff Each Party Shall Endeavor To Ensure".

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#217

Post by _ggwa »

dtgriscom wrote: post #173
AlbertCory wrote: post #88

IANAL, 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…

In 1990 I worked with a lawyer to submit a patent (cool idea, although it never made me any money). We were both new to the process, so it was a learning opportunity all around. A priority of mine was to use clear and transparent language. So, I'd write something up that was human-readable, he'd legalese it, I'd re-human-readable it, and we'd iterate. It felt like we were taking a walk through document space; he'd pu…

> (P.S. Why isn't there a simple PTO URL for "show patent number XXXXXXX"???)

It's going to get even worse at the end of the month when they retire the website you linked to. Patent documents can't be linked to directly in the replacement as far as I'm aware.

https://www.uspto.gov/about-us/news-updates/uspto-launches-n...

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#218

Post by quickthrower2 »

hn_throwaway_99 wrote: post #48

For 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 am not sure but they are reducing the amount they are limiting property taxes, maybe if you got a reduction last year, {subject to a whole bunch of filter clauses}.

Was there any documentation with before/after examples. That is what this needs. Taxes are complicated. Examples are great for getting your head around it.

Re: Poor writing, not specialized concepts, drives difficulty with legal language

#219

Post by xboxnolifes »

Pxtl wrote: post #216
photochemsyn wrote: post #89

Here's a good example of 'center-embedded clauses' making a paragraph difficult to interpret - it's from the revamped USA-Canada-Mexico trade deal, specifically a side agreement between the USA and Canada on energy-related trade: > "Each Party shall endeavor to ensure that energy-related activities that do not result in a facility exceeding its previously authorized capacity and that are limited to performing mainten…

I feel like complex sentences like this need braces to make them clear. Like, programming-language-style indentation would help a lot. " Each Party shall endeavor to ensure that { energy-related activities that { do not result in a facility exceeding its previously authorized capacity AND that are limited to { performing maintenance work on, OR ensuring the safety of, } existing cross-border infrastructure } may be u…

Its not that silly. Many of these run on sentences could be made much more clear by using bulleted lists, which is basically what you are suggesting. Though, mixing ANDs and ORs can be tricky in such cases at times.
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