
Darwinian Theory of Legal Obfuscation - russross
http://people.csail.mit.edu/gregs/ll1-discuss-archive-html/msg02919.html
======
grellas
I have strong views on this subject, as developed in 30+ years of practice as
a business lawyer in Silicon Valley (they are articulated here:
<http://grellas.com/articles.html>).

The best legal writing has the same goal as an other form of expository
writing - that is, in general, to communicate clearly and concisely with an
intended audience.

Legal writing can (and often does) also carry with it the goal of persuading a
target reader in some fashion and in this sense is best deployed using not
only clarity and concision but also the tools of rhetoric, which can often be
quite refined and which can but most often do not include obfuscatory tactics.
The shyster model of lawyering says play for advantage to the disregard of
truth. Carried to the extreme, it can include amazing tricks aimed at
dissembling and hucksterism but it does not necessarily involve using language
that is badly written - indeed, the finest forms of flim-flammery come from
top legal echelons, where very high-priced lawyers are often paid to craft
misleading arguments that will benefit their clients (including the
government).

The so-called Darwinian theory alluded to in the OP, however, is _not_ a good
explanation for shoddy legal writing or, indeed, for legal writing that is not
shoddy but rather unduly complex.

Many years ago, when much of law consisted of small-town practice and when
very little information was inter-linked or easily accessible, hack lawyers
would draft contracts using case digests and or similar third-rate resources
(often not even written by lawyers) for guidance of what was or was not
acceptable to the courts in matters that might eventually be litigated. That
sort of practice got the defenestration treatment several decades ago and
survives today primarily in narrow specialty areas (such as certain forms of
insurance contracts) where "tested" language is sometimes used simply because
it has been upheld by the courts.

In the vast portion of the business-law field, however, contracts are
generally drafted with the aim of making them clear and unambiguous and a very
good way to get fired at a large law firm (or any other firm that maintains
high standards) is to put together a shoddy contract that shows you have no
ability to state things clearly and unambiguously.

Of course, in a negotiation over a contract, one might try to slip in some
"snake oil" language which has as its goal the aim of putting something over
on someone. In such cases, a deliberate choice is often made to use ambiguous
language in order to further that goal. A good lawyer on the other side will
usually pick up on this and come back with cleaner language, but many times
people miss the subtleties and someone gets had. This scenario, however, doe
_not_ define any significant portion of the contract drafting that is done but
rather constitutes the exceptional case in customized deals that are
negotiated in private and usually kept private. In the event such a clause is
litigated, believe me, in modern law, it will not serve as a model for future
drafting.

By far the greatest reason why legal drafting can become hard to read has to
do with the complexity of the subject matter and the nature of the deal and
not with any goal of obfuscation. For example, one can indemnify (hold
harmless) another party with simple contract language that says, "I will
indemnify and hold you harmless from all damages resulting from x." That same
simple clause can be expanded to fill two or more pages of a single-spaced
legal contract if enough is at stake and if the parties are motivated to
protect their interests with a detailed contract that covers all the
possibilities. In the example just cited, for instance, you can add elaborate
clauses describing the exact types of claims against which indemnity will be
provided and you can specify the types of claims against which it will not be
provided. You can include notice requirements and specify consequences if they
are not met. You can include caps and limits of various sorts. You can state
that indemnity must be made when a claim is first asserted or you can state
that it will only apply if there is a final judgment. These sorts of details
can be replicated in great number, depending on how important it is to the
parties to have them in the deal. This can easily lead to a fairly complex
clause with a lot of legal terms of art in it, but the overriding goal is to
keep it clear and unambiguous, not to obfuscate. This sort of contract
language gets drafted every day and does not normally get litigated. It is an
example of lawyering at or near its best, provided a deal warrants it. If not,
you can always say "I will indemnify you from all claims" and leave it at
that.

Thus, the point made in the OP is either wrong or at least vastly overstated
as applies to modern business lawyering.

~~~
dustingetz
> to communicate clearly and concisely with an intended audience.

how's that working out for you?

~~~
grellas
Actually, I worked on my writing skills for years precisely because they were
so deficient (at least in my own mind) many years ago - this was time well
invested and, as a result, this skill set has been one of the most valuable
assets I can offer to clients in my practice.

------
lmkg
Examining the use of language by modeling them with Game Theory may provide
some interesting insights to what makes legal writing so unique.

Natural language, in a normal context, is (usually) co-operative, to the
extent that the speaker and the listener both have the common goal that the
listener understands what the speaker is saying. This is what gives natural
language a higher tolerance for ambiguity, as the listener will be using
generally amenable heuristics to discover meaning.

A programming language involves a human communicating with a generally
imbecilic partner. This is like a game against a deterministic opponent, or
even a single-player game, trying to optimize expression under the constraints
of the language. This is what gives programming its literalness. Language
designers try to solve the dual problem by designing the constraints.
Arguably, the goal of a well-designed language is for the expression-under-
contraints to approach the cooperative communication of natural language.

Legal writing is best modeled as a game against an adversarial opponent, which
is actually not far from the truth. In a sense, it's also dual to language
design, in that the goal is to design constraints that limit the expressive
ability of an adversary.

While this is not explicitly mentioned in the OP, it's worth pointing out that
bureaucratic writing is slightly different than legal writing, although it has
a similar eliminate) the need for the judgement or ad-hoc decision-making of
the individual contributors to the system, by spelling out the results of all
possible decisions beforehand. This system may best be modeled as imagining an
imbecilic adversarial opponent, rather than a powerful one, making it share
the worst qualities of both legal contracts and FORTRAN.

~~~
idoh
Your theory cannot be true, because legal writing is equally dry and opaque in
non-adversarial settings:

\- litigation, where the aim is to persuade a judge

\- court opinions, where the aim is to persuade the parties and other judges

\- I'd add law journals as well, which are written for peers

I'd say that the reason legal writing gets singled out is that people are
expected to read and understand it, while people are not expected to read and
understand equally difficult writings from different fields, such as something
from a medical journal.

~~~
lmkg
Keep in mind that an adversarial opponent is a game-theoretic abstraction. The
useful thought-experiment of an adversary is often used even when there is not
a literal 'opponent,' eg in natural-disaster-proof design. In essence,
imagining an adversary is a useful thought experiment for reasoning about
worst-case situations. In the situation of a natural disaster, an adversarial
opponent is not the literal truth, but you won't go far wrong by designing
against one.

I would say that any form of persuasion benefits from imagining an adversarial
opponent (in face, they're usually called a Devil's Advocate!). In this case,
your judge you are persuading can be modeled as an adversarial opponent,
characterized as being Maximally Skeptical of your position, within the
constraints of still being Perfectly Rational.

You may also be confusing "adversarial" with "confrontational." An adversary
can still be very dry. In fact, in game theory, they probably are very dry
because they're assumed to be perfectly rational. Adversarialism defines the
other participant's goals, not their approach.

------
tjsnyder
Peter J. Wasilko has a great reply in that thread.

[http://people.csail.mit.edu/gregs/ll1-discuss-archive-
html/m...](http://people.csail.mit.edu/gregs/ll1-discuss-archive-
html/msg02933.html)

~~~
Eliezer
An awesome reply by a lawyer who understands computing. If I ever need a
lawyer in the applicable area I want this guy.

------
hristov
It is an interesting theory, but I am not sure whether it is true because I do
not know much about other attorney's drafting styles. My personal philosophy
is to make everything as clear and unambiguous as possible.

But I have to point out that one reason why legal language tends to be
complex, is because natural language is very ambiguous. Thus, it takes a lot
of careful writing to actually remove all the ambiguities from something. What
often happens when one writes a contract is one writes a first draft and then
starts thinking "how can this be misinterpreted or wiggled out of." And then
one continues to add or change wording to prevent misinterpretations, and then
finds new ambiguities with the new wording etc., etc. And in the end we
usually end up with something long and rather difficult to read.

To put this in a software perspective, this is the same reason why there will
never be a natural english programming language.

------
pseingatl
Legal writing is the only type of writing for which copying someone else's
ideas (i.e., precedent) is a virtue rather than a vice. But it's easy to slip
in "snake oil," even in a business context. Let's say you have two contract
parties in different states (or one in another country) and each has a local
lawyer. How do you use which state--or country's--law will apply. A contract
isn't just an agreement, it's an attempt to predict the future. Because U.S.
law is forever changing, it's difficult to know what it is likely to be. But I
don't think that the "language that survives" in contracts is necessarily
opaque because of Darwinian principles. Look at the almost universal
notarization clause. That's pretty clear, I think.

