
Legalese: This Is How All User Agreements Should Be Displayed - kqr2
http://consumerist.com/5170410/this-is-how-all-user-agreements-should-be-displayed
======
Angostura
I suspect this is actually a legal nightmare. What happens when the informal
summary actually fails to capture some legal subtlety embodied in the
legalese? Which have I agreed to? What happens when a company (deliberately,
perhaps) musrepresents the meaning of the legalese in the summary.

The real solution is to write simpler clearer User Agreements, rather than
attempting to skin them.

~~~
jamesbritt
"Which have I agreed to?"

Exactly. If the plain English is in fact the same as the legalese, then the
legalese can be dropped. But it isn't, because there are (presumably)
important subtleties.

You still have to read both, and understand the legalese.

"The real solution is to write simpler clearer User Agreements"

Quite true.

~~~
jgfoot
It isn't so much that legalese is a separate language with its own subtleties;
it is just that it is language with predictable effects in courts. Think of
contract language as code, except the only time you get to run it through a
debugger is when someone sues. Only then do you get to find out whether your
code runs as intended, i.e. whether a judge interprets it to have the effect
you intended. Once language is proven to have a certain effect, lawyers like
to re-use that language in the sometimes naive belief that it will always be
given that meaning. The tradeoff here is that the language can be difficult
for laypeople to understand, especially as usages change. Some of the most
notorious legalisms are redundancies, like "free and clear," that according to
some scholars date back to the Norman conquest, when contracts were written
simultaneously in two languages (free being Germanic, clear being Latinate).

There is another comparison here: recall how Joel Spolsky criticized the
Netscape team for throwing out their old code and starting over? Lawyers can
make the exact same criticism about people who want to disregard legalese.

(I should really start blogging about this).

~~~
plesn
I like your comparison! But justice should protect us, while everything here
has no bound checks... Instead of having it in a high level language, we have
some old cobol (it works!) here and we must pay specialists for $$ to decipher
it...

~~~
pelle
Great comparison with cobol. I love it.

There is a burgeoning "agile" movement amongst some (albeit very few) lawyers
to improve things.

I wrote this rant about it a while back about how lawyers really should learn
a bit from the agile movement that has so revolutionized the startup world:

[http://stakeventures.com/articles/2008/11/12/is-the-time-
rig...](http://stakeventures.com/articles/2008/11/12/is-the-time-right-for-
agile-lawyers)

~~~
jgfoot
You might be referring to the "plain language" movement, virtually
headquartered at plainlanguage.gov. Take a look at their examples
([http://www.plainlanguage.gov/examples/before_after/wordiness...](http://www.plainlanguage.gov/examples/before_after/wordiness.cfm)
):

Before

Under 25 CFR §1.4(b), the Secretary of the Interior may in specific cases or
in specific geographic areas, adopt or make applicable to off-reservation
Indian lands all or any part of such laws, ordinances, codes, resolutions,
rules or other regulations of the State and political subdivisions in which
the land is located as the Secretary shall determine to be in the best
interest of the Indian owner or owners in achieving the highest and best use
of such property.

After

Section 1.4(b) of 25 CFR allows us to make State or local laws or regulations
apply to your off-reservation lands. We will do this only if we find that it
will help you to achieve the highest and best use of your lands.

------
sidsavara
I'm not sure I like this. Let's suppose that this does become standard
practice.

Now we could end up in a situation where users and corporations disagree on
the wording in the terms of service, or about definitions of terms.

As a simple example, let's use Apple's Itunes "software updates" that attempts
to push safari onto my machine.

Now lets suppose they add into the terms of service that if you use itunes,
they can use this updater to add safari without your permission.

In legalese it might read something like "add or update installed or new
programs onto your device" while in english it may read "Installs software
updates automatically."

I'm not saying Apple would do something like this, or that this article and
company it uses as an example has such intentions - but this is how _I_ would
abuse the system if it became widespread, and if I wanted to abuse it.

I do think it would be better to have terms of service that users actually
read - and in fact, I would assume many terms of service _do_ start of being
readable and understandable. However, in the end its about CYA (covering your
ass) and for that reason I think it's best to have everything spelled out.
Perhaps the summaries would be useful though to draw attention to what is
discussed in each section ,as it it in the example provided, so that I know
exactly where the privacy information is, I can quickly see where the SLA is,
etc.

~~~
dangoldin
Violates the DRY principle too and can cause confusion when things need to be
updated.

~~~
kqr2
Just to clarify, I think he's refering to the Don't Repeat Yourself principle.

~~~
dangoldin
Yep. I wasn't sure whether it was DNRY or DRY but Wikipedia has it as DRY so I
stuck with that. Wikipedia failed me once again.

<http://en.wikipedia.org/wiki/Don%27t_repeat_yourself>

------
noonespecial
I've seen this type of thing a couple of times before. Sometimes it works
better than others. The best example I've seen is just little italicized
blurbs marked (intent) before each barrage of law-speak. There was, of course,
a sizable disclaimer about how the italicized parts were not legally binding
yadda-yadda. It was on a car rental contract of all places.

Its kind of like comments on code, so that if the legal code doesn't run
correctly on the courthouse hardware, everyone can at least tell what the
programmer was trying to do.

The _right_ solution is to go back and clean up 400 years of worthless cruft
that's built up in the legal system that makes law documents quite literally
another language, with the added confusion that it borrows words from a
familiar one but assigns them new meanings and connotations. I was always of
the opinion that if I should be required to follow an agreement, then I should
be reasonably expected to be able to read it _myself_.

~~~
jimbokun
I read somewhere that Steve Jobs tore up a long contract and demanded a new
one that was one page long if the other party wanted to do business with
Apple. Lots of people demanding such contracts are the only way things will
change.

I can't imagine this happening, though, as lawyers would need to write these
contracts and greatly simplifying contracts would probably put many of them
out of a job.

In addition, many people with their shorter contracts would be shocked when a
judge rules against their interpretation of the contract, and others will
complicate their contracts to prevent the same thing happening to them. This
is likely the process that led to the contracts we have now. Legalese is not
intended to be clear and expressive, but as a kind of adversarial form of
communication.

~~~
adamc
IANAL, but I think many of them write complicated contracts mostly in an
effort to protect their clients. Simple contracts may not include verbiage
that has survived court challenges.

I'm not trying to defend the system, just pointing out that lawyers aren't
necessarily trying to do anything but make the system work for their clients
-- which is what they got hired to do. If we want simpler language, we need
legal decisions that will back it up.

~~~
pelle
This is a myth. Most contracts are not even written down and are perfectly
legal.

For example if you're in a restaurant and order food you have accepted a
contract to pay for that food once you finish. The contract does not include
any legalese it isn't even written down, yet is just as valid if not more so
as any 100 page document filled with legalese.

If this is so you can also write it in plain English. Anything that can be
written in legalese can almost always be rewritten in more concise plain
readable English.

------
old-gregg
I just don't understand how come legalese can't be replaced with some kind of
mathematical formal system? A few lawyers I shared this view with laughed at
me, but after some digging I realized that was because they lacked a proper
training and believed that English was more expressive than Math. Wrong: math
is the language that describes the world around us, surely it can be used to
describe their stupid laws, which can't even approach the laws of nature in
complexity.

Sure such language won't be readable by regular folks, but that's not the
point. Such "mathematized legalese" would be made readable by computers and
translated into all sorts of usable applications: for instance you can do
almost automatic "legislation simulation" without even going to a court room:
given two theorems (legal agreements) and variable bindings (facts) a computer
(judge) could estimate your chances of winning without wasting a single dollar
on lawyers.

Am I an idiot because I see nothing wrong with this?

~~~
jgfoot
Laws have varying degrees of clarity. Laws about what side of the road you
must drive your car on are clear. Others aren't. Consider the FTC Act: "Unfair
methods of competition in or affecting commerce, and unfair or deceptive acts
or practices in or affecting commerce, are hereby declared unlawful." Turning
that into mathematical language would not be useful, because all the work is
being done by one, largely undefined, word: "unfair." Courts have, over time,
given a rich and complex meaning to that word. In English.

Some law is already formalized, enough so that it can be, and has been,
translated into software code. TurboTax is a good example of this; it doesn't
capture the entire tax code, and it apparently doesn't get everything right
(ask Timothy Geithner), but it does dramatically illustrate the extent to
which the tax code is determinate. (Self-plug: the U.S. federal sentencing
guidelines are also highly determinate, although actual sentences are not, and
a web site I run lets lawyers calculate these sentences).

If you are interested in this area, take a look at XBRL, an XML dialect used
by financial institutions to make some legally required reports in a highly
formalized manner.

------
pelle
As many of the commenters pointed out the summary becomes a part of the
agreement. I think it would even trump the legalese if there is some
inconsistency between them.

What people fail to understand is that the contract/agreement itself is not
the written text. Rather it is a legally binding relationship between 2 or
more parties.

The better each party understands the terms and duties the less likely
disputes are going to happen.

Legalese is a kind of legal FUD, which sometimes works and sometimes doesn't.
Unfortunately most people are still scared of changing it.

All those legalese clauses you see in most agreements can be trumped by plain
English or actually even common sense. The common law contract system allows
judges to invalidate extremely unfair terms based on common sense and common
practice as it requires both parties to perform some sort of equal exchange
for a contract to be valid.

I believe that a well written plain language contract is a lot less likely to
have disputes. I also believe that judges like the rest of us are perfectly
able to read English as well, so I can only conclude that legalese is FUD.

See these two posts to learn more about how contracts work:

[http://stakeventures.com/articles/2006/08/17/pragmatic-
contr...](http://stakeventures.com/articles/2006/08/17/pragmatic-contract-law-
for-entrepreneurs)

[http://blog.extraeagle.com/2007/10/09/contracts-are-
relation...](http://blog.extraeagle.com/2007/10/09/contracts-are-
relationships-with-strings-attached/)

If you are interested in the history of legalese I warmly recommend the book
<http://www.partyofthefirstpart.com/> which is probably the funniest legal
book I have ever read.

I'm on a bit of a crusade against legalese myself and at <http://agree2.com>
we've tried to write our user agreement in plain english. We had it for public
review last year ([http://blog.extraeagle.com/2008/05/20/public-review-of-
agree...](http://blog.extraeagle.com/2008/05/20/public-review-of-agree2-user-
agreement/)) during a major rewrite and even allow you to propose changes to
it during your signup.

------
whatusername
There's a problem with providing two sets of an agreement.. For a (150 year
old) real world example - see here:
<http://en.wikipedia.org/wiki/Treaty_of_Waitangi>

The gist of it - What the Maori's thought they signed - and what the English
thought they signed - were two different documents.

"The English and Māori versions differ. This has made it difficult to
interpret the Treaty and continues to undermine its effect. The most critical
difference revolves around the interpretation of three Māori words:
kāwanatanga (governorship), which is ceded to the Queen in the first article;
rangatiratanga (chieftainship) which is retained by the chiefs in the second;
and taonga (property or valued possessions), which the chiefs are guaranteed
ownership and control of, also in the second article. Few Māori had good
understanding of either sovereignty or "governorship", as understood by 19th
century Europeans, and so some academics, such as Moana Jackson, question
whether Māori fully understood that they were ceding sovereignty to the
British Crown."

------
micks56
Both summary and legalese become the contract. Courts look within the four
corners of the document for the terms, wherever they may be. Other terms are
implied by statute and case law. Still more terms are implied by 1) custom and
usage in the industry, and 2) course of past dealing between the parties.

And the mathematical version of the law brings up many issues. The law is
actually pretty mathematical. Non-lawyers may not know this, but legal
standards follow strict standards whenever possible.

Here is an example: Plaintiff brings discrimination suit based on US
Constitutional equal protection claims. Is the Defendant the Federal
Government? If yes, you sue under the 5th Amendment. Is the Defendant a State?
If yes, you sue under the 14th Amendment. Is the Defendant neither, and this
case doesn't fit into a limited exception that I haven't listed here for
clarity? If yes to both, then you can't sue based on the US Constitution. It
is that simple.

Continuing the example (assuming you are suing the Feds or a State. Also, I am
leaving out corner cases): Is the suit based on Race, Alienage, or National
Orgin? If so, strict scrutiny applies. Is the suit based on gender? If so,
then intermediate scrutiny applies. All other claims are analyzed based on
rational basis. Now there are some terms of art that need to be defined there.
But they are pretty easy to understand.

Perhaps the main reason the mathematical legal system won't happen is that
courts only decide the issue at hand. The math system will require a
programmer to enter an outcome based on the applicable laws and facts ahead of
time. But every case is an example where the court hasn't yet ruled on these
unique facts applied to the laws. That is why the case is heard and not
dismissed, tossed via summary judgment or a directed verdict. If the exact
same facts and exact same law is applied, the verdict is mechanical. Trial
lawyers make their money when that isn't the case.

------
diN0bot
<http://aviary.com/terms>

actual term of service link.

------
tocomment
This might make a contract more expensive to develop but if courts started
holding these sorts of contracts in higher regard, perhaps it would justify
the cost. I'm not a lawyer but intuitively it seems that if a contract has a
big summary that says "we're allowed to eat your baby", it will more likely
withstand a challenge than one that hides that clause in page 30. No one could
claim they weren't aware of that clause.

------
unalone
The second I saw the title I knew which site it must be referring to.

Such a great strategy for a site catering to artists and people who care a
_lot_ about terms but don't want to read legal text.

------
ryanwaggoner
Google does something similar to this:

[http://www.google.com/accounts/tos/highlights/utos-us-
en-h.h...](http://www.google.com/accounts/tos/highlights/utos-us-en-h.html)

~~~
jskopek
An even better implementation of this, on the Google Maps API site:

<http://code.google.com/apis/maps/signup.html>

------
ggruschow
Why have the legalese version?

And really, why have either version? What do we need these agreements for?

