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 purposes on the residence homestead of a person who is elderly or disabled to reflect any statutory reduction from the preceding tax year in the maximum compressed rate of the maintenance and operations taxes imposed for those purposes on the homestead.
I have an Ivy League education and I still could hardly understand it, and I still think some of the language is ambiguous (i.e. I think "the reduction of the amount of a limitation on the total amount" can be interpreted both ways).
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 communications for which the public were the intended audience are the advertisements, which I'm sure bore no resemblance to the text of the law.
It's not even the writing - it can be blatant misinterpretation. There's precedential opinion that states that you can't ignore the letter of the law to pursue it's spirt. Yet there's a law that has "reasonable care" in it, but the precedential opinion on that is that it's a strict liability offense because 'applying reasonable care would frustrate enforcing the legislature's intent'...
The judges don't care. They're not impartial. They want the state to win more often than not. I mean, who pays their salary and what looks better than being part of law and order?
It can also be intentional deception. Look at the recent PA vote on retirement age of judges removing the language that provided voters info on the current age limit.
A great example is Measure A which was passed in the last election a few months back in Santa Clara county:
> Shall the measure amending the Santa Clara Valley Water District Ordinance 11-01 to limit Board members to four successive four-year terms be adopted?
Term limits? Heck yes! Voters agreed: term limits are A GOOD THING. Measure A passed!
What wasn't mentioned AT ALL, anywhere in the question put to the voters, is that Santa Clara Valley Water District board members are already limited to 2 terms in office. This was extending term limits from 2 consecutive to 4 consecutive terms. It was getting rid of/weakening term limits. A blatant misrepresentation on the ballot.
Who wrote the text of Measure A? Why the Santa Clara Valley Water District board members who wanted their terms extended, of course.
That's the exact scenario for the PA measure - judges had a mandatory retirement age of 70 and the measure was to set that age at 75. People didn't know that there was already a limit. The original wording provided that info and it failed. Then they rewrote it like this just to get it to pass (I think they also took it to court, where an interesting party, a judge, ruled on the wording).
Here in Washington, an "easy" fix for that is that the initiatives get a column for the "Yes" side and a column for the "no" side, in our voting booklets that we get in the mail with the ballots. But IIRC CA is still in person voting, right?
Yeah the voting booklet has the same design here, and the "No" side called them out on it. But who reads that? (Other than me and you, obviously.) The ballot itself had only the text which I quoted.
Pamphlets are allowed inside the booth, but you have to bring it. They are sent separately in the mail some weeks before the election. At the voting booth they just give you the ballot. The ballot only has the brief descriptive text.
We have vote-by-mail as well, but the number of people who actually read the pamphlet and make an informed decision (rather than just briefly scan the ballot at the last minute) is small enough to matter.
It seems most people don't even research the ballot before going to the polls. People are surprised by the referendums, so how can they make an informed decision? Many seem to go to the polls with the plan of filling out the super bubble to vote party line without even looking at the candidates on the ballot (Dem or Rep).
There was another a few years back where it was reversing the measure to prevent the repeal of another measure which was to stop something else. Still not sure whether I voted for or against something.
Yes, but collecting fines can be a big revenue stream that helps keep their salary high. This is especially true at the municipal level where all the players know each other. It's also a big deal for judges that get elected to look like they're for law and order.
Hanlon's razor never applies when politics or money is involved. Best to just suspend your judgement instead of giving politicians the benefit of the doubt.
Looking at Texas school funding laws, I expect the complexity is aimed at Charter Schools.
I didn't look into the details, but schools with poor attendance can have their "excess" local revenues claimed by the state (state law specifies what excess means). Charter schools don't have local funding (and can play games to pick their students).
The measure above appears to be for adjusting a relief measure for the elderly and disabled downwards when their obligation is reduced (which if it only reduces the relief, could reduce it to 0 over time).
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."
That’s true in general. There was a lot of disagreement over the scope of things like the Commerce Clause, Necessary and Proper Clause, etc.
I don’t think that’s true of the Second Amendment specifically. It was written by a bunch of men who had just used guns they had lying around their farms to form militias and overthrow their government. I don’t think it’s a great mystery what they meant when they wrote the Second Amendment.
Insofar as the prefatory clause causes one to stumble, it was a common construct at the time tk have a “why” or explanatory clause prefacing an operative clause: https://www.nyulawreview.org/wp-content/uploads/2018/08/NYUL.... You read it exactly like you would read the following:
“Free political debate being necessary to the functioning of a free state, the freedom of speech shall not be abridged.”
> 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 factor at Yorktown was the intervention of a French naval squadron and expeditionary force.
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 find much ambiguity in it.
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.
You seem to be ignoring the concept of an armory (the local Armory food hall used to hold weapons) which does not require individual ownership of the heavy arms, not a standing army.
Also there is no "no sanding Army" requirement. There is only a requirement that the army can only be funded for 2 years ahead, presumably to require ongoing consent from Legislature, to prevent a Chancellor Hitler-type situation or a President becoming King by getting a huge multi year funding and then turning against the future Legislature and the country.
I am pretty certain that the large military powers at the time (England, France certainly Prussia) had standing armies already. So I would be highly surprised that the founders did not anticipate armies as a permanent institution. That would be a pretty big blind spot, considering they already existed.
They Constitution (and the framers) opposed the President having a standing army. It supported the country having one with biannual renewal of consent from Legislature for funding.
And the War of 1812 taught President Madison the danger of being under militarized and over-reliant on militias.
In some ways, the Founders were delightfully naive. Kings also already existed, and they'd just thrown off control of one.
Many Founders believed a standing army to be an inherently corrupting force (if you have a warrior class, sooner or later they will make you go to war) and thought America would be better without one. Whether or not that could have been true in the abstract became irrelevant because the need to perpetually defend territory meant that there was never an opportunity to disband the Continental Army.
It's easy to forget that the United States of the ratification of the Constitution is a different United States than the one we live in now. Both the Civil War and the radical reinterpretations of several federal powers during the Great Depression fundamentally changed the nature of federal and state government.
The Second Amemdent's in there because without it, the states wouldn't have been willing to ratify a Constitution that allowed the federal government to take their guns away. After all, they had just won a war against a monarch an ocean away; they weren't about to give their power of defense to an executive half a continent away. Remember, there was no guarantee a Constitution was going to happen at all; quite a few compromises and curveballs in that document are there because every single state had the option of rejecting the whole thing and being their own country. Many Founding Fathers envisioned defense of the US would look like individual states generally handling their own affairs, and a national army only being mobilized in the event of a national threat (however, practically speaking, that didn't come to pass... No sooner was the Constitution ratified than Washington led the Continental Army to force the citizens of western Pennsylvania to pay federal taxes).
Gun regulation was properly recognized as a state authority for most of the country's history prior to the Civil War and varied wildly from state to state, with many being significantly more restrictive than modern law. It's only with the passage of the Fourteenth Amendment (and the Due Process clause, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law") that the Second Amendment ties the hands of state governments in the same way it tied the hands of the federal government. This restriction has been re-interpreted over the decades, but broadly speaking that's how we got from a 1700s Philadelphia that banned gun ownership for some immigrants to the modern interpretation where even tracking who owns a firearm might be considered an abridgment of the right of ownership.
I think that’s actually a coherent view of the 2A. But when you pull on the 14A incorporation thread quite a lot unravels with it. The Establishment Clause, for example, was intended to prevent the federal government from interfering with state established churches, some of which still existed at the time. It actually makes no sense to incorporate that provision against the states.
Makes no sense other than we had just fought a war over the concept of states' rights overriding federal protections. Hypothetically, they could have narrowly-tailored the 13th through 15th amendments to end slavery and do little else, I think it is possible that lawmakers of the day came to a rational conclusion that the next time the states challenged federal authority so brazenly, it wouldn't be over slavery but over some other issue of fundamental rights... And if the protections laid out in the Constitution were good enough for people when exposed to law at the federal level, they should be good enough for citizens of the states as well. One certainly can't expect that anyone would have benefited if, hypothetically, Georgia were to dedicate itself to Roman Catholicism and declare all federal laws null and void, replaced by the law from the Vatican (a scenario that could have been possible prior to the 14th).
One advantage the chosen approach has is, in a sense, interpretive simplicity, even though in practice it strips much authority from the states and moves it up to the federal level.
The Second Amendment is a bit more confusing than at first glance.
"A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed"
Seems nice and straightforwards, right? Trouble is, that's just one of many versions. Different states ratified slightly different versions of the Second Amendment, the main difference being the presence of absence of different commas. For example, see this version from the National Archives [0]
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed"
The (personally) funny thing about the 2nd amendment is that since I am not a native English speaker, its syntax looks broken to me. Without "since" or "because" at the beginning it reads either as a non sequitur or as a "driving by the gas station, my hat flew off" kind of sentence: the subject suddenly changes midway through and (in my native language) it's a hallmark of non-literate speech which one would really, really like to not have in an important legal document.
For the record, the extra commas after “Militia” and “Arms” would be considered incorrect by modern standards, though the sentence would otherwise be fine (aside from capitalization).
> It was written by a bunch of men who had just used guns they had lying around their farms to form militias and overthrow their government.
One of the catalysts to writing the Constitution in the first place was when a bunch of former soldiers took the guns they had lying around, tried to seize government munitions, and overthrow the Massachusetts government. The federal government couldn't raise an army to put down Shay's rebellion, and had to use local/private militia.
That might be true of all the early amendments, given that they aren't painstakingly defined like modern laws. It might also be that they did agree (the ones who voted for it) and it's lost to history (federalist and antifederalist papers have some background, as do the similar state level constitutional provisions about arms, the press, etc).
Exactly - The Flesch Kincaid gives you ranges, and it's reasonable for amendments to be within a certain range. For example, in Florida, all life insurance policies must have a Flesch Kincaid score of at least 45. This still scores as "Difficult to Fairly Difficult." It'd be interesting to see what the readability scores are for different amendments.
> "The text achieves a minimum score of 45 on the Flesch reading ease test as computed in subsection (5) or an equivalent score on any other test comparable in result and approved by the office;"
These are the scores for the ballot measure that Texas voters were supposed to vote yes or no on.
So absolutely yes. When you're asking people to vote on something, and you actually want informed voters, I unquestionably want ballot measures to be understandable by everyone that reads them.
Exactly - The Flesch Kincaid gives you ranges, and it's reasonable for amendments to be within a certain range. For example, in Florida, all life insurance policies must have a Flesch Kincaid score of at least 45. This still scores as "Difficult to Fairly Difficult." It'd be interesting to see what the readability scores are for different amendments.
> "The text achieves a minimum score of 45 on the Flesch reading ease test as computed in subsection (5) or an equivalent score on any other test comparable in result and approved by the office;"
But it is reasonable to have these sorts of things understandable to the average high school graduate and to the average retiree (different schooling, different mental statuses). And by average, I truly mean that the range of average should be able to read it so that comprehension should be widespread.
If your average high school graduate cannot comprehend it, your wording is too difficult, your education too poor, your document was written by people without the skills to talk plainly, or a combination of these.
It seems too obvious to be worth saying: the law should be simple enough to understand that people of good will can comply with it without engaging a lawyer.
Very few of us have a lawyer in our back-pocket nowadays. Sure, laws regulating some kinds of financial transactions and contracts are necessarily going to be complicated and hard to understand. But the general rule should be "If the law isn't something an ordinary person could be expected to know, then they aren't bound by it". That would put an end to clever-clever legal drafting.
I doubt that is what they are saying. It seems more likely they are saying the text should not be "extremely difficult to read" or "impossible to comprehend".
Though actually what they are saying is "I put the text in these algorithms and got these scores". It is left to others to draw conclusions like I did above.
Yes, exactly. You can draw whatever conclusion you'd like from the data, and many text scoring systems have issues, but there is still a clear pattern here where this text is far outlier.
Nice, are you gonna pay for my consulation with the lawyer?
I have spent the equivalent of a house deposit on immigration lawyers just to make sure paperwork is filed correctly and I know what I am allowed / not allowed to do. Many people simply can't afford that.
No, but it should not be intentionally obfuscated either; there's a middle ground.
But it should be simplified if it's intended to be read and comprehended by the general public. This is an issue now with terms of service and contracts, to the point where people who cannot comprehend the language are being exploited.
The Flesch Kincaid gives you ranges, and it's reasonable for amendments to be within a certain range. For example, in Florida, all life insurance policies must have a Flesch Kincaid score of at least 45.
> "The text achieves a minimum score of 45 on the Flesch reading ease test as computed in subsection (5) or an equivalent score on any other test comparable in result and approved by the office;"
Not by the dumbest person but by a majority of people. If citizens are expected to follow the law and if ignorance of the law is not an excuse then it should be comprehensible by the majority.
> Are you suggesting that our legal system should be understandable by the dumbest person?
If possible, on a case by case basis. If it's difficult, we lock people in a room for 8 hours a day from age 5 to 17, and don't let them leave until they understand. If it still doesn't work, we get rid of the law.
Wow, I actually had to vote on that and couldn't parse out what it was saying, so I left that one blank. I have a PhD, it's in computer science, but still.
As a rule of thumb, if the ballot measure is incomprehensible, you're safe in voting against it (which, obnoxiously enough, can sometimes mean voting yes)
There is never a good reason for using language this obtuse, but there's lots of bad reasons.
This measure in particular seems engineered to be just clear enough to be upheld by a judge, but also sufficiently obfuscated so that the public doesn't know what it's actually voting on.
The wording was awful but not malicious. The proposition passed by 87%, reducing the amount of school-allocated property taxes the disabled and elderly need to pay. Politically it was the perfect intersection of lowering taxes and social support program.
The main reason for the verbal atrocity is legislators had to cram a more or less complete description into a single sentence, per constitutional requirements.
> The main reason for the verbal atrocity is legislators had to cram a more or less complete description into a single sentence, per constitutional requirements.
Or the other common reason, that they campaigned on getting a measure to the ballot that has voter support, but they don't want it to pass. The first thing you do is come up with a confusing text with extra points for double negatives, and you follow that up with a confusing media campaign.
You may fail, and it passes with 87%, but sometimes if you work hard enough you can get Illinois to vote down a progressive income tax.
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 public school purposes on the residence homestead of an elderly or disabled person in order to reflect any statutory reduction from the preceding tax year in the maintenance maximum compressed rate and operations taxes imposed for those purposes on the homestead."
"At times he [the author] may indulge himself with a long one, but he will make sure there are no folds in it, no vaguenesses, no parenthetical interruptions of its view as a whole; when he has done with it, it won't be a sea-serpent with half of its arches under the water; it will be a torch-light procession."
Long, readable phrases (in literature, anyway) tend to be made up of independent clauses with semicolons, and are perfectly understandable (to me, anyway). I sometimes prefer long sentences in some forms of literature - short sentences can be choppy and halting.
"He was indistinctly conscious that the pardon of this priest was the greatest assault and the most formidable attack which had moved him yet; that his obduracy was finally settled if he resisted this clemency; that if he yielded, he should be obliged to renounce that hatred with which the actions of other men had filled his soul through so many years, and which pleased him; that this time it was necessary to conquer or to be conquered; and that a struggle, a colossal and final struggle, had been begun between his viciousness and the goodness of that man." (Les Miserables, Hapgood translation)
Note that this is also probably easier to understand in context - standalone, I can see how it could be a bit confusing.
In these cases, the “longness” of the phrase and its nonexistent independent clauses are just formalities. We’re calling the same thing by another name. I think it confuses people when there are guidances out there about not using overlong “sentences” but then they are undermined by overlong sentences which are merely “sentences” by technicality.
The rule is, write clearly. And if it’s not clear, write it more clearly. That’s pretty much it.
If you need guidance, Cormack McCarthy is the professor.
I haven't earnestly studied English grammar to the same level I've studied Romanian grammar.
In Romanian you have "sentences" (noun - verb - etc) and "phrases" (multiple sentences together, basically they're separated only by periods). I think in English grammar "sentences" are called clauses?
Anyway, Romanian "sentences" are generally short, and if they're not, for sure that's bad style. Romanian "phrases" can be long, but depending on the structure of the "sentences" and the logical separation between them, they can be quite clear.
Maybe the same distinction makes sense here? "Sentences" (clauses?) should be relatively clear and short and somewhat independent, "phrases" can be long, but only if their individual components ("sentences") are of high quality on their own and if they're connected in clear ways.
Sort of. If you remove semicolons and use periods, you have to remove the ‘that’ as well. Then, to me, the sentence loses its impact. Theres a parallelism that is artistic, and makes everything flow.
But in some sense this is art, not science; it shouldn’t be analyzed too much :)
An awful lot of people don't know how to use or interpret semicolons, including lawyers and judges. The best use of semicolons is to designate the timing of prose that is supposed to be spoken (or read as if it was meant to be spoken). In that sense a semicolon is a bit like a comma - it denotes timing and "breath".
When they are used to group ideas, commas and semicolons tend to encourage long, complex utterances that might be ambiguous, and at any rate are harder to parse. If it's important that an utterance be clear, just use simple language.
Expressing complex ideas in simple language is hard - you have to get the ideas perfectly clear in your head. If you still can't express those ideas in simple language, try again to get them clear. Don't draft any laws until you can do that.
"In his time the City was made more fair than it had ever been, even in the days of its first glory; and it was filled with trees and with fountains, and its gates were wrought of mithril and steel, and its streets were paved with white marble; and the Folk of the Mountain laboured in it, and the Folk of the Wood rejoiced to come there; and all was healed and made good, and the houses were filled with men and women and the laughter of children, and no window was blind nor any courtyard empty; and after the ending of the Third Age of the world into the new age it preserved the memory and the glory of the years that were gone."
Once upon a time there was a green and grumpy ogre who lived in a swamp alone and felt himself content, but this contentment was illusory for the ogre had simply never tasted true companionship nonetheless love (platonic nor romantic) prior to his exposure to a talking donkey who had been displaced by political troubles in a far off land, the resolution of which forged strong bonds between the ogre, the donkey, and many other characters such as the princess who would become the ogre's wife, the dragon who had held the princess prisoner and would become the donkey's wife, and a medley of fairytale folk who would be life long friends to both couples.
Dots separate clauses. They let you catch your breath, both literally and figuratively. There comes a point where you run out of oxygen, and you forgot how the sentence started anyway.
I think of sentences as cutting information into bite-sized chunks. Paragraphs separate ideas, like different plates separate flavours.
Kind of, however (and I'm not a native speaker) if it would be simplified, it would also be longer / multiple paragraphs, which will also put some people off of reading / comprehending it - especially these days, where a lot of people have very short attention spans when it comes to reading.
Honestly, the ballotopedia summary [1] isn't much clearer! Looks like it passed overwhelmingly (87%), so presumably folks knew what it meant from TV ads? Or they were all successfully and massively misled by the other side's ads, and they had no idea what it meant!
The ballotpedia summary shows that there wasn't really a campaign opposing the measure it seems? In which case presumably it makes sense that it passed overwhelmingly, if no one was voicing any arguments against it
Or people didn't understand it enough to oppose it, or interpreted it opposite to the received interpretation and so were for it, or didn't have enough money to mount a campaign, or assumed others would campaign against it, or ...
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.
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.
For this reason it should be voted against, as it makes the state constitution illegible, but as for what it does I haven't a single clue.
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?
Funny that I was about to comment "it doesn't seem so bad, just draw a directed graph to work it out". Reading your comment it does seem a little unreasonable.
A normative statement - which I declare to point out that you could also share what should be the case.
What might be more helpful is that ballot initiatives should have a stricter template based on type. If you're changing tax code it could be:
- Initiative Type: Taxes
- Affects: The homesteads of elders in X, Y, for Z
- Results: Taxes are raised
- Description: As stated above
- Definitions: Homesteads - X, Elders - Y, ad valorem - etc
Of course this is essentially making the same conclusions as the title which is that standard writing/legalese is really no longer acceptable given the complexity of many modern laws and incentivized parties.
They were deliberately torturing themselves to avoid saying "raise taxes."
What they seem to be saying, if I parsed it correctly:
"We now get to include tax breaks from the previous year as a factor in property value when taxing the elderly."
That seems awful. I kind of get the hyper-technicality they're going for, but it still seems like they're sticking it to seniors... again, if I understood it correctly.
These issues are nuanced. Texas municipalities depend on property taxes more than most as there’s no state income tax.
One thing local government politicians love to do is pass tax exemptions for old people, disabled people, veterans and combinations of the three. It’s a type of patronage, that lets Mayor Good ‘ol Boy drop by the senior center and VFW and pull in the votes.
Property taxes are essentially allocating the levy based on your proportional share of value. When they get out of control in small towns the effect is a two-tier system where some people pay dramatically more.
That’s exactly the opposite of what it does. Stuff like ‘reduce the limitation’ has the same ambiguity as ‘turn down the thermostat’ where it’s not clear if you are lowering the value or the effect.
I'm not 100% certain I understand it, but I see 3 sections in there:
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 purposes on the residence homestead of a person who is elderly or disabled
to reflect any statutory reduction from the preceding tax year in the maximum compressed rate of the maintenance and operations taxes imposed for those purposes on the homestead.
Part of the political art of introducing a ballot referendum is phrasing your amendment in a way that makes it more likely for you to win. The goal isn’t necessarily to be accessible.
Most of the referendums that come up in my local jurisdiction are often criticized for their hostile phrasing.
Does it mean we are banning the taxation of old or disabled people to pay for elementary and secondary school?
Seems a bit weird, why not just not do said thing, why is there a need for a law banning it? Is it just to make things difficult for the other side (presumably democrats)?
>For everyone commenting "laypeople aren't the intended audience"
Why not though? Do laypeople not have to follow these laws/contracts? Or do we expect everyone in the modern age to have a pocket lawyer available to them?
If the average person can't understand the rules that they must follow then there's really no such thing as "law and order", there's only selective enforcement.
In my (limited) experience I have seen very smart and talented people craft confusing agreements for these reasons:
_ They start with an agreement drafted by one person and then many people propose or insist on edits, but because the process is a negotiation the tendency is not to rewrite the agreement but instead to tack on language from another author in a way that is confusing. Sometimes you end up saying the same thing twice in slightly different ways because two people wanted to say the thing in two ways and you want to just move on in a negotiation.
_ You often work from a complicated agreement that has worked in the past and has all sorts of phrases and clauses from previous versions. People hate to change things and if they do make a change it is usually to add more.
To be fair, the laypeople are also likely bombarded with advertising about the ballot measure. The advertising will simplify what's stated, and get at some potential consequences of voting yes vs. voting no. There could actually be a benefit with this language in that uninformed voters will actually not vote on it, whereas generally speaking, people vote with complete disregard to their level of knowledge about a subject.
Also to be fair, even if the language was perfectly easy to understand, there's probably at best a 70-30 shot the voters pick the right choice, since people lack the critical thinking skills, and education in public policy and economics to choose what's best.
Not all ballot measures receive lots of advertising. In Texas, ballot measures like this with an impenetrable description are not uncommon. My sense is that if people can't figure out what something is actually about (as in this case) then they mostly go "sure, whatever" and vote for it.
I have a relative who worked in bill drafting for a legislature. The structure of this stuff is sort of it’s own art driven by the deadlines as a lot of legislation is associated with things with deadlines like budget bills.
This isn’t the king’s English, but it isn’t egregiously unclear if you understand what it’s about.
That was a challenge. I just had some fun trying to make it tolerable. Not sure I made it.
> The constitutional amendment that lets the legislature lower the limit of taxes that elderly or disabled people must pay for elementary and secondary public school purposes on their residence homestead. The new limit will reflect any lowering of the maximum compressed rate of the maintenance and operations taxes imposed for those same purposes on that homestead.
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.
I disagree with the assumption that the intent is for voters to understand what they are voting for. The purpose is to either get the vote or not. And language games, including intentional trickery, are a legally valid way of accomplishing either goal.
The number one problem with this language is that everything is inlined because they don't have the concept of macros or variables. They have some variables but they are all ad-hoc designed into the language. For instance: ad-valorem means something but it's all from history. Adding a new term is a huge effort in this language.
Secondarily, they don't have a concept of macros except in a very ad-hoc sense. This means that they are afraid of macro use because they do not know the concepts of macro hygiene.
This is likely due to intentional creating a moat around the industry.
tl;dr Legalese is impenetrable because it uses the equivalent of Forth but POSIWID
I don't know about that, for example contracts usually define their terms as they go along. "Hereinafter referred to as...". That's basically a #define macro.
The advantage of natural languages is self-referential infinite recursion is basically fine. The downside is, no compile-time checks for logical inconsistencies.
Right, in theory, but in practice they don't really use that functionality, right? I think the reason they don't is that they have macro hygiene issues with the language because while natural language has supreme flexibility, it does not have easy to use scoping constructs and so things inside the macro will leak to outside the macro.
I've been a CTO at companies in various bits of the Anglosphere, and signed contracts in all of the bits (and some other places).
I'm also married to an Anglosphere lawyer (which gives me lots more exposure than I might have guessed to the idiosyncrasies of the profession).
In my experience, I very much agree with the headline (and abstract) here, but would emphasise that the US is the worst for archaic language, creating a worse barrier to entry. Most other countries in the Anglosphere have been through a "plain english" language push in both contract & legislation, while the US has stuck to "this language is proven through precedent" more stubbornly than anywhere else. This seems to be particularly prevalent in IP law, although that might be my tech bias showing.
I would very much argue against those (even in this thread), that say that the lay-person isn't the intended audience for lots of contracts, particularly for T&Cs where they are often written by a contracts lawyer, for a contracts lawyer or judge, but should ABSOLUTELY be written for the lay-person to understand.
Anyway, I think the legal profession can & should do better.
> Most other countries in the Anglosphere have been through a "plain english" language push in both contract & legislation
The US has seen big pushes for plain English. Nixon, Carter, Clinton and, most recently, Obama have all championed this. It has been federal law since 2010 for all executive branch agencies to use plain language in any official document they produce, for instance. Similar desires in law and contracts exist, though I'm less aware of that.
The US really does lag behind on this one; the push for plain English was phenomenally more successful in other Anglophone common law jurisdictions.
Having practised as a lawyer in one of them, I can confirm much contemporary American legal writing seems absurd and even comical. There’s something amateurish about it; like a layman trying to ad-lib some law talk at a party by cobbling together some obscure law terms he’s overheard.
“The first party of the aforementioned party - THIS PART IS IN CAPS - will henceforth wheretofore undertake that by no later than St Swithen’s Day - MORE CAPS MEANS MORE LAW - ”
I feel like this happens in Canada too because federal (and lots but not all provincial (“state”)) law/websites/guides has to be bilingual and they’ll have equal force. If the translations don’t mean exactly the same thing, hilarity ensues!
> This form will be used by Federal agencies to obtain applicant certification that States which have established a review and comment procedure in response to Executive Order 12372 and have selected the program to be included in their process, have been given an opportunity to review the applicant’s submission.
After
> If your State requires an opportunity to review your application, use this form to certify that you have done so. Include the form in your application.
What does "requiring an opportunity to review" mean? :o
Does the process include a review by the state or not? If yes it's mandatory, right? Not an "opportunity", and it's not just a "movie review" review, right? So it means state needs to approve it, no?
So shouldn't this be phrased as "include government permit here (whether it's applicable for you, see how your state reacted to Executive Order 12372)"?
> I would very much argue against those (even in this thread), that say that the lay-person isn't the intended audience for lots of contracts, particularly for T&Cs where they are often written by a contracts lawyer, for a contracts lawyer or judge, but should ABSOLUTELY be written for the lay-person to understand.
I would argue that if a lay-person is expected to comply with the law/contract, then lay-person should be the intended audience.
Yeah. England&Wales legislation is fairly comprehensible. Of course it could be better. I just ran a random tax law through Hemingway and it scores between Grade 9 and 11, occasionally hitting Grade 13. So that's sort of fine, I think?
Apart from the bonkers preamble which decorates every act, of course!
Having exposure to other anglosphere (neat) lawyers, this is 100% on purpose and thought of as job security. Law school is an expensive wizard school where you learn how to speak the right incantations.
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 patent claims are too often not precise.
Your proposed claim format would greatly improve clarity.
I particularly like the definitions and examples being included in the claims. Too often patent attorneys define terms contrary to their ordinary meaning. I might not think to check the specification for a definition, and end up wasting a lot of time.
With that being said, I sometimes do 112(b) rejections for exemplary language in claims as they can make the claims unclear (for example: "for example"). I think if the claim or specification was written to make it clear that the examples are just examples and not limiting the claim then it would be okay.
Reference numbers are common in patent claims outside of the US, but it seems that US patent attorneys worry that adding reference numbers would limit the breadth of the claims. There's no statute or USPTO rule against reference numbers in the claims and I'm not aware of any case law justifying not adding them. Not having reference numbers in the claims is a loss for clarity, particularly when the claims use different terminology than the specification (which is unfortunately common).
(Again, this is just my opinion, not that of the USPTO, US govt., etc.)
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?
I'm not aware of any other examiners who use this tool. I did ask an examiner I know to try it and they did, but they didn't find it useful. They suggested that the warnings that plint returns are more relevant to the areas I examine than what they examine, which is fair. They also found my syntax for antecedent basis checking to be confusing.
The personal reason why I made it nitpicky is that there's a huge variability between examiners in terms of which rejections to make. I'm a junior examiner, so everything I do has to be approved by someone else. They might tell me to remove a certain rejection because they don't have a problem with that, and to add some other rejections for things they care about. In my view, it would be better to get a wide range of possible rejections upfront and then think about which ones the person signing off on the office action cares about. The alternative is going back and forth about which rejections to do, which would take more time.
The JSON configuration file I use filters out a bunch of the rules because the person who signs my office actions right now doesn't care about those ones, or I don't care about those ones. I need to update the README file to say that.
Also, an attorney writing a patent application has much less information about which rejections are likely than I do. So from the perspective of an attorney, I think being nitpicky makes sense too. Not that I'm aware of any attorneys who use plint.
plint might not even be nitpicky enough. Recently r/patentexaminer had a poll [0] where about 6% of examiners said that the term "at least one" was indefinite... which is astounding to me as I think that's totally fine from a definiteness standpoint. As I recall, I have some warnings in my linter for enablement on that in case it's not clear how having two or more of something would work if only one is disclosed. But usually "at least one" is fine from an enablement perspective.
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?
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.)
I tend to disagree. US law does require "plain language" in certain places (privacy policies for example) and that doesn't help. Also, while EU law is, perhaps, written in clearer language, the ambiguity of how it will be interpreted and enforced is actually so much less clear that overall their legal requirements are harder to decipher.
Often the EU "principle" that is then enshrined in individual country's laws is fairly straight forward. However, you really need to understand the individual country and their regulator to understand their take on it and enforcement. There can be a huge disparity between countries, despite all being rooted in the same principle.
> Also, while EU law is, perhaps, written in clearer language, the ambiguity of how it will be interpreted and enforced is actually so much less clear that overall their legal requirements are harder to decipher.
This may be true, but the ambiguity of legal requirements is a separate issue entirely (i.e. the reason the requirements are amgibuous isn't because the language is simple, it's because the legal systems are very different, and sometimes the ambiguity is a feature rather than a flaw as it can help provide member countries a level of flexibility if maintaining the spirit of the law).
Lawyer and contract-drafting teacher here. The biggest problem with unreadable contracts is that we have too many L.O.A.D.s: Lazy Or Arrogant Drafters. (You can decide for yourself: L.O.A.D. of what?) There's a relevant Dilbert cartoon: [0]
To simplify contract language, the biggest bang for the buck comes from SSSP: Short, Single-Subject Paragraphs, which are much easier to read; to review and revise during contract negotiations; and to reuse in other contracts.
(It's not unlike modularity and orthogonality in software.)
For more ranting on that subject — with some pathological before-and-after examples — see my online course materials (this version isn't pretty; I'm almost done refactoring it). [1]
To extend this L.O.A.D. point, the worst, most unreadable contracts are drafted by nonlawyer paraprofessionals deputized by their organizations to patchwork previous contracts that may have been somewhat readable, into a Frankenstein mess. It's somewhat akin to assigning the office manager to write software code. Businesses do it because they think contracts should be simple so anyone can write them adequately. Those organizations are half right.
At the same time it's not unreasonable to require roughly the same amount of time from the reader, as in the same amount of effort is needed to grasp the concepts written.
Language is very malleable, and to counteract this it's imperative to use structured writing, detail the model of the concept being communicated, then give ample examples and counter-examples to clarify the model and thus the concept itself.
It's crazy to expect that a well-written sentence will be read just as well without the same context that the drafter(s) had. Yet we are very allergic to giving examples, because that would introduce [more pages to complain about politicians voting on them not reading] aaaaaand more somehow ambiguity. (Oh right, we're talking about this because otherwise statutes and their clarity and interpretations are so unambiguous!)
I worked in an organization like this and 100% agree. I compared it to COBOL in legacy systems.
One contract person (not attorney) had a library of categorized bullshit dating back to the late 1980s. The dude would paste them in like LEGO bricks. The guy retired like a decade ago and some of his stuff is still lurking in RFP templates.
In your experience how much of this is attributable to a party of the contract trying to sneak favorable terms into the agreement? Generally I am a fan of Hanlon's razor, assume ignorance/stupidity over maliciousness, but given the nature of the subject matter I am very suspicious.
> how much of this is attributable to a party of the contract trying to sneak favorable terms into the agreement?
I've long thought there's sometimes some of that. But I preach to my students that it's not smart to try to sneak something in, buried in a "wall of words," because it presupposes that the other party's reviewer won't spot it and get pissed off.
Thanks for sharing this. As you said, there is a very clear analogy to software factoring. Separating the definition of terms from the clauses relating them is very similar to factoring software logic out into functions.
In a way, bad legalese is even worse: at least hard-to-read code can be still be effortlessly and quickly executed by a computer. Every "execution" of your example contract will give someone a headache.
Worse, when it comes to code if execution doesn't do what you intended it is your fault for not writing it correctly and you are who gets punished for it.
When it comes to legalese, if execution doesn't do what you intended it is their fault for not understanding what you meant correctly and they get punished for it.
I think this "poor writing", as in hard to understand writing with long backreferences is due to the same reasons as why many academics are terrible at explaining things, as well as why source code is hard to read.
I should know, others usually like pointing out how terrible I am at explaining things. And I think I know why.
When I make a naive attempt at describing a complex, interconnected concept, such as a piece of math, or a program that does a thing I start with a mental picture - a graph of interconnected concepts. Then I try to describe the picture - the same way one would describe a painting. I describe each visible part separately, often in great detail, then I try to describe the links and interconnections between parts.
This sort of 'accurate' descriptive style naturally leads to huge backreferences, and people usually have a ton of trouble following along.
However I think there's a way of getting your point across - one basically needs to reproduce the thought process of how one would come up with the given model given the real world constraints, illustrating the issue and its proposed solution with examples. It is often said that people are much better at deriving the rules from a few examples than the other way around.
However this sort of descriptive style takes both a lot of effort, and usually is less precise, which often is not acceptable, such as in the case of contracts or computer code.
> one basically needs to reproduce the thought process of how one would come up with the given model [...] people are much better at deriving the rules from a few examples than the other way around.
Indeed. I don't think this is as mystifying as some people seems to believe. There seem to be at least two errors poor communicators make.
The first is that communication doesn't transfer any content from one person to the other. We use signs and symbols with conventional meanings both parties accept to express things which are then interpreted by the other party. If you're not both on the same page, you have to first establish that common ground. Much of education involves building up that common vocabulary and system of signs so that we can even have the conversation. To think of communication as if you were some act of piping the actually semantic content from your mind to another's is to completely misunderstand communication and a recipe for failure and frustration because you will be unable to understand why someone cannot just grasp the content you think you've just poured into their head. "It's right there! I just gave it to you!"
This brings us to the second error. Knowing your audience means knowing what their current state of knowledge is. Part of that is knowing the vocabulary and system of signs your interlocutor knows. Explanation is therefore a matter of using what they already know to lead them to the conclusions you already have (introducing claims as necessary). Once the aim of explanation is stated that way, it starts to resemble something like a chain of reasoning...or an argument, which it basically is. I cannot derive certain theorems if I have not yet derived certain prior theorems, much less if I lack the axioms from which they are derived.
Build a simple model you can explain in a few sentences; perhaps accompanied by a simple picture.
Elaborate details in each important direction, separately.
Finally, describe unusual complications that arise when different elaborations are combined. Use a narrative voice when there's a process to explain (but, be sure to use numbered statements!). Use a well-known top-level article structure to help familiarize your reader — but be sure they know to expect that structure.
Good point at the beginning about how serialization of complex structures works, but false conclusion.
Good writing, just like good code is well-factored and self-documenting. Easy to understand identifiers, short functions.
What you suggesting is the equivalent of writing a module using a long string of function calls, some of which have very non-obvious meanings, and claiming that there isn't a way to factor it out.
Explaining something to another human is hard for people "on the spectrum", in part because they don't have a strong "theory of mind".
Instead of understanding and/or inquiring how the other person's mind state differs from yours, and what gradual steps might lead them to greater understanding, they tend to treat people like a file system with a missing file, and stream the relevant data into them, assuming it will all be recorded.
This is not a simple problem to solve, but it can be done, and the first step is to realize the nature of the problem.
One simple process is getting feedback along the way. Instead of the 5 minute lecture, go step by step, and check that your counterpart has picked up what you're putting down.
At my job I have to deal with the structural design part of the building code for US and Canada (ei. calculating loads on structure). Part of my job is to find the differences in each new version to see if we need to implement anything new in our software.
For seismic, the Canadian code is easy enough to understand that teachers use it in college instead of manuals or notes. To calculates something (eg. a specific wind load or seismic load), you just read the section from top to bottom and follow the recipe. Things are actually placed in the order that an engineer would use them.
With the US code, you have to deal with triple negations and 80% of the usefully information is presented as references to other sections. It's really not fun trying to understand it when a single sentence will link you to 8 paragraphs, 6 of which are in a completely different chapters or sub-chapters. And as you can imagine, these 8 paragraphs will also have their own references to other part of the code. It's a complete mess that is impossible to follow unless you write your own summary and/or take screenshots and rearrange them in order.
You end up with a situation where even experienced engineers can't understand it and have to rely on notes from colleagues, college textbooks, calculation examples, or they just blindly follow the design software they bought.
Working the support line for a high end structural analysis and design software has really opened my as to how incompetent and lazy a lot of the senior engineer from highly reputable firm can be. It would be a lot safer for the public if the "easy to understand" version of the code came from those who wrote the original. I suspect it's the same in other professions too.
> It would be a lot safer for the public if the "easy to understand" version of the code came from those who wrote the original. I suspect it's the same in other professions too.
Senior engineers probably have their own intuition to what is "safe" based on their experience, which might be more accurate than the horrible mess of a law that you describe.
the problem is that they built their "intuition" without ever looking at the code directly. They are always using second and information and those are not always good. My concrete design handbook in college had a corrections on at least 75% of the pages and it was the 3rd edition. We often look online and in popular textbooks for design examples to test our software, and we find a lot of errors in them too.
>which might be more accurate than the horrible mess of a law that you describe
I've had a senior engineer at one of our biggest client accuse us of having a bug in our software. He has dozens of people working for him and teaches other engineer how to design bridges. Turns out he used the arctan function in excel instead of cosine. Her mistake was roughly doubling the shear resistance of the main beams on the bridge. We ere the one to find the mistake in his calculation.
clients often call us with question like "how can I use your software to design XYZ". When we talk with them on the phone, they often don't have a clue how to do it manually and they are hopping that the software will just do it for them.
It's also very common for us for find critical mistakes in client's finite element models when they contact us for something completely different.
thank you for this reply -- here in California, there is no secret that much building activity has been legally curtailed to such an extent that it becomes another endeavor entirely.. that of seeking and obtaining permission at every turn. Obscure and contradictory rule books specifically enable this kind of gatekeeping IMHO.
A big problem with US building codes is just there’s too many of them - every town has its own rules, so you can’t share knowledge or buildings between them.
Some of the common rules in the US don’t help though; aesthetic rules like setbacks are pointless and expensive, but even the safety rules other countries don’t have cause big problems. Can’t have single stair apartments and everything has to be built to accommodate gigantic fire trucks.
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 TCP header and body,
where said header comprises etc. etc.
-- or --
A TCP packet, comprising TCP header and body,
where the header comprises etc. etc.
The second is absolutely as valid as the first. "The" is just as good as "said."
Another example:
What is claimed and desired to be secured by US Letters Patent, is
-- or --
I claim
The first one is just pretentious. It adds nothing.
Maybe you don't like "comprising"? Well, that one is specialized language.
A chair, comprising four legs, a seat, and a back
-- or --
A chair, consisting of four legs, a seat, and a back
The second is not just as good as the first. "Comprising" allows for the chair to have arms, while "consisting of" does not.
> People add extra words when they want things to sound more important than they really are. "Boarding process". Sounds important. It isn't. It's just a bunch of people getting on an airplane. People like to sound important. Weathermen on Television talk about shower activity. Sounds more important than showers. I even heard one guy on CNN talk about a rain event. I swear to God. He said, "Louisiana's expecting a rain event". I said, "holy shit I hope I can get tickets to that!"
> News people like to say “police have responded to an emergency situation.” No they haven’t, they’ve responded to an emergency. We know it’s a situation… everything is a situation!
The case of "access" I think is partly two avoid two things. First, it's to avoid implying that the concern is about getting treatment, as opposed to being evaluated for it or being set up in the system. Second, it's to avoid implying that the potential patient's concern is about "getting" something at all, as opposed to being eligible for it, in the sense that they could get it if it were necessary.
Access as an idea is very important in healthcare equity, because it avoids a lot of the political baggage that is attached to the less resourced obtaining those resources. If you have critics that are accusing the poor of just hoarding things, you want to clarify that what they're getting is eligibility or entrance, not the resources per se. Access is about being able to get drugs if you want and need it, not getting drugs per se.
I'm not a doctor, but there are differences between the two words: "access" generally refers to capability and/or proximity whereas "receive" generally refers to eligibility for a particular service or prescription.
The word "get", is a vague expression of either of the former two words, but in common parlance is understood to be the latter.
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 push towards the "Legally Tight" pole, and I'd push towards the "Intelligible" pole.
> a plurality of non-intersecting surfaces arranged in layers, each surface comprising multiple units, combinations of said units forming passing and blocking tuples, each tuple comprising one unit from each of said surfaces such that the projected path of any specific particle through the filter traverses a single tuple
In fairness, I'm not sure "the" was generally accepted in 1991.
> (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.
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.
there's no way around it. if you want to avoid getting misunderstood, misinterpreted, especially by in a somewhat adversarial setting, then you need to build a mental model that grasps what you want to communicate, and then spend the pages and ink to write it down. structural language, plenty of examples to narrow down possible points of false interpretations, etc. (at least 3+ examples for each thing, to have a quorum of examples that can break ties in case of opposing interpretations) obviously quantification is good, measurability is great, directionality is important (so then as you try to specify this abstract concept by its boundary in some mental space you can say what's inside and what's outside the boundary, which examples point in which direction ... so you can say things like "we mandate providing shelter for every resident" with a lot more precision, after all in no time someone would argue that it's a tautology, since "residents reside somewhere, which means they have an address, and therefore they already have shelter there".)
My 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 where I'm going to have to rewrite one of the claims to understand what it's saying, and no, that shouldn't be necessary... And the situation with patent documents is worse than the situation described in the abstract as many attorneys write vaguely.
The argument that "lawyers are the intended audience" isn't legally sound either, as under 35 USC 112(a), patents are supposed to "enable a person skilled in the art [...] to make and use the [invention]". If an attorney argues that patents aren't supposed to be understood by non-attorneys, they're wrong, full stop.
Unfortunately, I'm not really allowed to do 112(a) enablement rejections. I'd do those sorts of rejections frequently if I could, but I think I can count the number of times I've done 112(a) enablement rejections on one hand. The law in other countries seems more strict than in the US. I'm told that Japan in particular takes enablement a lot more seriously than the US does.
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?
Enablement is a joke in software patents. I actually did research on this and "written description", and (from memory) some judges have said that you need "structure" in your application, and having a box on your diagram labelled "access control" can be that structure. A person of ordinary skill in the art could construct it from those words. There's no need to provide any further details on the access control.
Before someone points this out: obviously if "access control" is not part of the claimed invention, then you don't need to specify it beyond a box. But then you probably wouldn't have put it in the diagram in the first place.
There's an empirical test that the PTO could do: take some software patents and give them to a large sample of people skilled in the art (which, if I remember correctly, is often two years of relevant experience plus a BS degree in computer science). "Relevant experience" would mean "in the field of the patent," e.g. if it's automobile battery management software, experience in missile guidance doesn't count.
See how many are able to make and practice the invention with a "reasonable amount of experimentation."
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.
Most patents omit crucial details to actually reproduce the invention. This is especially important in case of pharmaceutical and chemical patents. Full hardware and conditions are not documented nearly as well as a typical grad paper, which already tend to have holes.
"Software" patents, often similarly omit "irrelevant" modules.
Chocking it to "a specialist can make the module from scratch" is insufficient and should never be allowed.
In addition, a lot of the patents, due to lacking the details, are obvious as written to a specialist, just the details are not.
Same with academic papers. Most of my efforts go into dealing with constant loss of attention that happens when I have to look up unnecessarily complex words or improperly defined symbols and variable names. I feel stupid until I realize that the paper is actually about a very simple concept. It doesn't have to be this hard to read.
the problem is that journals have this fancy dream that they are still the communication medium between peers of the field, who are equals and up to speed, and they are simply exchanging notes on their eminent thoughts and theories.
yes, that probably also happens every once in a while, but they should adopt a rule to assume that readers are absolutely not the seminal trailblazers of the field. [of course no need to go back to Simple English Wikipedia level]
there's ample space in journals. no need to hide stuff in spreadsheets in the supplements. paper authors should write the fucking thing down with precision and accuracy. yes, of course cite things, but also they should finish their thoughts, spare the reader the endless goose chase. no need for the standards smug remarks that communicate absolutely nothing just namedrops citations.
understanding should not be an adversarial process. (Socratic, yes, but that's cooperative/constructive.)
A lot of this is driven by inertia. When a lawyer goes to write a contract, she'll typically start with a prior contract or form agreement. This will either be used as a template, or large chunks will be borrowed and modified as needed. In either case, the lawyer is unlikely to reword a bunch of provisions in an attempt to improve readability. It's like the legal version of Chesterton's Fence — if you don't know why a particular clause is phrased a particular way, you leave it as-is. Your client/partner might ding you if you include a boilerplate provision you shouldn't have, but you'd probably get in more trouble if you affirmatively reworded something and broke a cross-reference or other logical linkage that was supposed to remain in place.
As a result, language that was written a long time ago is still circulating in modern agreements. Note: I'm not defending any of this. As a lawer-turned-founder, I try to keep my agreements as short as possible!
Poor writing is the main cause for the illegibility of referreed science and engineering articles too. Historically this was partly due to publishers' demand that the article be quite short (often < 8-10 pages). Of course, this constraint is obsolete now that pubs are electronic.
In addition to a format guide, every journal should specify a style guide (like the NY Times does), so the reader can expect a highly structured layout AND argument. (Explanatory content can go in 1+ supplement docs.) I'd even like to see standards for the use of emphasis (like bold, italics, colored text), especially for first mention of term/names that occur repeatedly.
The sooner we can make all professional writing trivial to skim, the better.
I lay a fair bit of fault also at an almost visual/UI level of how we write laws.
If you look at our law books, they are almost all words/text. Paragraphs and paragraphs of it. Yet in a lot of areas of law or regulation, graphical explanations are rarely used when they could help clarify immensely. To use a simple example, just think of when a map is needed -- and whether you would try to describe that by text.
I also have an analogy in my mind that when you ask a typical programmer to explain something, they start showing you the code. Only a skilled rare few have a picture in their mind that they can draw you the relationship between the things they have written (and start a chat based on that).
Lawyers / politicians are by default writing in long, wordy, text to try to lay out complicated systems. This is often not ideal, when a diagram or schematic of what you are legislating to have happen would be more clear.
It also produces an effect where laws tend to just bolt on more text, and have little contextualization of what already exists or what is being modified. And I also have a feeling it tends to miss the problem cases. I seriously believe our hundred books of CFR/laws are a significant result of this.
If people were forced to summarize how a proposed law interacts with current laws, etc. I think there would be more hesitation and better thought about what is being enacted.
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 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."
Unpacking all this is rather difficult. The intent appears to be ensuring that energy-related activities should not require periodic re-authorization by a regulatory body after an initial authorization is granted. An example would certainly help - a cross-border power grid interconnect, say.
The embedded clauses are of two different kinds. If our grid interconnect doubles its capacity, this would be a violation of the first (restrictive) clause, and would thus require a new round of authorization. Under the second (permissive) clause, one can shut down the grid interconnect for safety or maintenance reasons. Taking the grid interconnect offline to restrict supply and jack up prices would thus be a violation, although one could monkey around with this (see Russia shutting down Nordstream to Europe for 'maintenance' at present).
That's just one paragraph, the document is hundreds of pages of this kind of thing.
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".
Alternatively, this is the original sentence with the embedded clauses moved to the end:
> Each Party shall endeavor to ensure that energy-related activities may be undertaken under the initial authorization and shall not require a new authorization, as long as these activities do not result in a facility exceeding its previously authorized capacity and are limited to performing maintenance work on, or ensuring the safety of, existing cross-border infrastructure.
It is incredible how much clearer the sentence becomes with this simple change. The only part that remains even slightly challenging is "or ensuring the safety of".
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.
I am a lawyer who works with but doesn't do a MASSIVE amount of contract writing like some.
I don't think "poor writing" is the right phrasing here, which implies ignorance or ineptitude.
I think the reason contracts aren't readable to laypeople is because laypeople aren't the intended audience. We all know no one reads these, so we write them to future lawyers and courts who might want to get our clients in trouble. We try to create loopholes for our future selves.
> 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 agreeing to.
How would you prove that? I think there are protected classes for that reason, but if some adult outside of such classifications signs they could ostensibly renege at any point under the pretense that they didn't understand, conversely I presume it would necessitate attorneys (or similar) at every contract signing to ensure it would be binding.
Your question is exactly the reason why meeting of the minds doesn't solve this problem. It's subjective.
Fyi in practice, signing the document means that you understand it, as far as a court is concerned. Contracts will often throw in boiler plate like "I am authorized to sign this, I've read it, and I understand and agree to it."
The most common way it's successfully challenged is "incompetence" - by showing the person who signed it in no way could have possibly understood it (e.g. developmentally disabled, someone held a gun to their head, don't speak the language and the translation was fraudulent, etc).
IANAL as well, but isn't there a reasonable person standard test applied in law, sometimes? It seems like the issue here is that reasonable people are expected to not be able to parse contracts.
You don't. Once you sign a written contract, the presumption is that there was a successful meeting of the minds between the parties. If you later want to claim that you didn't have a meeting of the minds with the other party, the burden of proof is on you to show that. The other party does not have to prove that you did understand the contract.
Then what hope is there for a layperson to do anything of significance without first having a lawyer vet the EULA?
Such agreements are already absurdly long for some of the most trivial services or products. The answer cannot become "be a lawyer or rich enough to afford retaining one".
Agree. There is generally little hope of a layperson (or even a lawyer typically) of benefitting from a EULA. That said, laws separate from the contract might benefit you - if Microsoft's software kills your dog, you probably can't recover under the contract, but you might be able to win a lawsuit against them for breaking the law.
Unfortunately that process is also costly and benefits greatly from lawyer involvement. It's a widely known problem that it's expensive to navigate the court system.
> 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 benefit both of you.
So the first question to ask is, is your counterparty acting in good faith? Are they genuinely trying to reach a win-win agreement with you, where both sides benefit? Or are they just trying to get whatever they can out of you, by hook or by crook, without caring whether you benefit?
If the answer to that is the latter, your best option is to avoid dealing with that counterparty at all. If a counterparty is not acting in good faith, no amount of legal analysis of contract language can protect you. (And that is why I avoid using products and services that have those absurdly long EULAs whenever possible.) And if a counterparty is acting in good faith, you should be able to reach agreement on reasonably simple contract language that a lay person can understand.
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.
> 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.
> I think the reason contracts aren't readable to laypeople is because laypeople aren't the intended audience.
That's partly true — but there's no reason a contract can't be written to be understandable by mere mortals. (I do a lot of contract drafting and have been teaching it to 3Ls for years.)
Let me ask you this, though: why shouldn't I be a L.O.A.D.?
Also, who's the L.O.A.D. when I and a counterparty are editing a contract someone else drafted a template for five years ago? Am I expected to use my negotiating 'gun powder' to fix clarity issues?
Ultimately, the ethical responsibility is to choose the best client representation over the most readable contract, right? Those don't always overlap, do they?
> Ultimately, the ethical responsibility is to choose the best client representation over the most readable contract, right? Those don't always overlap, do they?
It depends on what's meant by "the best client representation" — is it "best" for the lawyer, or for the client?
What clients want — pretty much universally — is a contract that:
* sensibly and understandably handles the usual use cases;
* addresses the important business risks; and
* can be negotiated and signed quickly — in many cases that might be the client's most-important consideration, because the client is confident that the deal will go smoothly and/or that the business risks are low — and an understandable contract draft can be negotiated far more quickly than a draft that's loaded with "wall of words" provisions.
(The old saying is that most contracts are signed and never seen again, either because the deal goes smoothly or the business people work out any difficulties between themselves without getting lawyers involved.)
Almost never do clients give a [hoot] about maximizing their theoretical legal position for every conceivable set of circumstances — in fact, they're actively hostile to doing so if it means undue delay in getting the deal to signature.
(Source: 40 years of law practice, including nearly seven years as vice president and general counsel of a public software company that I'd helped the founders to start.)
1. Your contract is really confusing and looks like it benefits the counter party at face value, but actually benefits you upon close inspection. These things can help with that. It's "dark arts" to apply this technique, and there are various shades of gray, but it happens.
2. It might cost less to have your lawyer correct these things. If I (lawyer) correct them and the the other lawyer has to read them and debate them with me, we're spending client money.
3. "Non-standard capitalization" for most purposes is standard in legal contracts. As lawyers we are more used to non standard than standard. I don't know what center-embedded means, and for passive voice, I'd need to see the example. Passive voice can be helpful as ambiguity can pull more possibilities into play, if desired. E.g.: "there shall be no fraudulent use of party A's intellectual property" is broader than "party b shall not use party a's intellectual property."
This is exactly the thesis that is refuted by the article. They find that the factors that make legal language hard to understand are the same factors that make any language hard for anyone to understand, for example long dependencies between related words in sentences. Nor do such constructions create ambiguities that might be useful later on: they just make the text harder for anyone to understand.
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 needed to avoid these sorts of years-long fights.
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 Gorsuch to Kavanaugh that's both utterly thorough and gratuitous at the same time, is quite the read, although the Supreme Court having to definitively state that "a means a" is almost a parody of itself. I wish you the best of luck with a word that's 5 times longer and features a slightly more complex definition than the meaning of "a".
I imagine that a contract must be written for the malevolent reader. The opposite of generous. Striving not to communicate, but to preemptively win every possible argument. An airtight construction.
Quite different from a conversation. Well, an ideal conversation anyway. Internet conversations seem to be more combative every day.
What you're describing is more applicable to a motion filed in court (one party is in battle with the other and has no reason to be friendly to the other party at all).
In the case of contracts, you're partially right, but it's more nuanced. The weird thing about contracts is that at the time they are signed, two parties need to agree with each other. If you're hiring a software vendor and I am your lawyer, I need to try to achieve two things at once: protect the company legally, but also sign the deal so that you can use the vendor. So I'm inclined to be somewhat friendly with the other side and to forego "air tight" legal defense of my side so that we can reach agreement.
Unfortunately this process has a side externality for clarity: we negotiate little parts of a template and the way we do so probably doesn't jive all that well with the template language.
> (b) suggest such processing difficulties result largely from working-memory limitations imposed by long-distance syntactic dependencies (i.e., poor writing) as opposed to a mere lack of specialized legal knowledge;
It seems like a misrepresentation to call “long-distance syntactic dependencies” in a legal document the same thing as poor writing when comparing to other genres of written English including those that are written for pleasure. When exploring law the question an individual usually has is “If I do X, does Y happen?”. But legal frameworks don’t cover individual situations, they paint broad strokes over the human experience.
I'm guessing what they mean with long distance dependencies is section 3 of the contract sets one scenario and section 46 an exception to it.
This happens (normally, intentionally) when there is a section up front or at the end that sets defined terms. It also happens in a way we lawyers agree kind of sucks but whatever who cares - when after a long negotiation we're adjusting one small point and don't want to go through the effort and consternation of rewriting the whole thing.
Legal negotiation culture states that the longer/more involved your edits, the more presumptively unreasonable they are. So there is low incentive to rewrite something to make it "read better."
No need to guess, they give an example of the kind of thing they mean:
> “In the event that any payment or benefit by the Company (all such payments and benefits, including the payments and benefits under Section 3(a) hereof, being hereinafter referred to as the ‘Total Payments’), would be subject to excise tax, then the cash severance payments shall be reduced.”
"center-embedding" is the term they use to describe this, note the long interruption of the primary sentence due to the embedding. A suggested alternative which removes the embedding making the primary sentence easier to understand:
> “In the event that any payment or benefit by the Company would be subject to excise tax, then the cash severance payments shall be reduced. All payments and benefits by the Company shall hereinafter be referred to as the ‘Total Payments.’ This includes the payments and benefits under Section 3(a) hereof.”
> But legal frameworks don’t cover individual situations, they paint broad strokes over the human experience.
If that doesn't cohere with the questions individuals exploring the law actually have, maybe that isn't a good way for legal frameworks to be designed?
This is a very complicated proposal you've made but I think the main answer is, it isn't scalable for policymakers or even courts to consider everyone's individual situation a priori. It would cost too much money.
It seems to me that our existing legal system costs an enormous amount of money, in that it produces laws that can't be usefully engaged with by lay people without expensive expert advice. It just conveniently externalises this cost on to people who aren't policymakers.
Something I think would be helpful would be to replace a "definitions" section with a "terms" section, with three subsections:
General Terms of Art provide a vernacular English explanation for widely-used legal terms within the section. Example: "Joint tenants. A legal term meaning that the tenants not only hold a single undivided parcel together, but that ownership of the property passes to the other tenants if one tenant dies. If a tenant sells their interest, and the remaining tenants entered into a joint tenancy at the same time and on the same deed, the remaining tenants remain as joint tenants."
Specific Terms of Art describe terms of art used in the particular contract or act. An example would be "protected health information" or "covered entity" in the context of HIPAA.
Terms of Clarification are standard vernacular English terms that, for the sake of reducing frivolous navel-gazing, are defined precisely. An example would be "uniformed services" within Title 10, or "machine gun" in the Gun Control Act.
A layman could read the two terms of art sections and should be able to understand most statutes or contracts.
A lawyer familiar with the general terms of art could read the specific terms of art and understand most statutes or contracts.
Terms of clarification could be consulted only if the precise scope of a term becomes an issue.
as part of graduate school, I participated in State of California hearings, studied particular regulations that were adopted after a major law was passed in my chosen field, and finally submitted (and had accepted) amendments to their final regulations. (this is not trivial, since there were more than 400 public comments and suggested changes to the administrative rulings, but less than three dozen were accepted - including mine).
What I learned: the written law is ambiguous, mostly intentionally. The reply at the time was that the legislators "set the direction" and it is up to political appointees at an agency, working with their staff, to write regulation based on the "intent of the Legislature."
The published regulations that implemented the law were written in such a way, that the references were actually circular, and the same term (noun) was used in two different places to mean two different things, without acknowledging that. I did as others suggested, and drew diagrams with notes to check the very very dense legalese in the regulations. My change was regarding that twice-defined noun, which they acknowledged by accepting the change.
Overall - what is said is not what is done -- the saying I heard in Sacramento was "never write what you can say, never say what you can imply, and never imply if you can nod or wink" What that means is cynical; that you habitually do not write what you really mean to do, knowing that it will be reviewed by your adversaries, and taken out of context to be used against you.
The regulations writing was adversarial, and the response from the agency involved was measured and ready for court, at every step. The default action in the public comment period is to ignore your comment, and they do that in most cases.
I have started making it a habit to read all Terms of Service and EULAs before accepting them, and particularly with financial stuff at stake, like opening a new account I need to read all the disclosures. Those financial agreements I've found to be comparatively well-written.
I also have occasion to sign off on a lot of health care-related agreements, and I find these to be very difficult: it's an emotional flashpoint for me, the documents are often presented in times of stress and the signature is extracted under some sort of duress.
Firstly, the health care facilities (and banks and others) now uniformly use electronic signature pads and they don't like to print the documents anymore. But if you insist, they will print them. This is a good pro forma procedure to force them to correlate what you're signing what what you've (presumably) read. But I've also found that it's nearly pointless to make a fuss about reading what you sign, because there's always a Swiss cheese of loopholes and convoluted phrasing that will confuse you.
Once a few years ago, I "carefully" read and signed off on a 3-page document for release of records, but no records were produced. (It failed silently, and the onus was on me to follow up.) Upon investigation, I found that the health care professional had prepared the document for me to authorize me to release records to me (rather than for the facility to release the facility's records to me). I attribute this to malice on his part - he was a jerk, and of course even after I read this document with a glaring error, I didn't catch it, either.
Nevertheless, don't let anyone shove an electronic signature pad in your hand before you've made an effort to read what you sign.
I've found it useful to read EULAs and TOS, though, for the simple fact that they include policies & procedures in case of dispute. If you have trouble with a service, you're supposed to know the steps for resolution, and if you haven't followed them, the service isn't under any obligation to hold your hand and walk you through it. The document often includes essential email and postal contact addresses, and I guarantee that you'll never find those contact addresses ever again if you don't print/save that document before ticking the "I agree" checkbox.
So I highly encourage you to make a folder in your cloud storage, or on your phone, and make liberal use of "Save/Print as PDF" for every TOS, EULA, and legal document that you sign or agree to. Eventually, you'll get into a situation, and you'll be thankful that you have recourse to the document you signed.
But one of the most basic principles of the legal system, is that you cannot defend yourself based on not knowing the law...
This is a big problem all around the world.
Shameless plug here but my startup's mission is to solve this problem. It seems wrong to me that in this day and age you have to hire someone to be able to read a legal document or TOS: https://layman.ai/
This is interesting. I was thinking while reading this thread that it would be cool if there was a way to solve the problem.
My idea: get a significant percentage of users of a service to sign up for a 'union' of sorts to negotiate on their behalf. So you will boycott Facebook, along with 10million others, until they adjust their terms to at least make more sense (or ideally be a little more user friendly).
int add(int a, int b) {
return a + b;
}
int add(int a, int b) {
if ((a > 0 && b > 0) && (INT_MAX - a < b)) {
return INT_MIN + (b - (INT_MAX - a + 1));
} else if ((a < 0 && b < 0) && (INT_MIN - a > b)) {
return INT_MAX + (b - (INT_MIN - a - 1));
} else {
return a + b;
}
}
Which one expresses the intent more simply and understandably?
Which one is more robust?
Which one would you bet the future of your company on?
I offer that, sometimes, simplicity of expression is at odds with protection against edge cases.
Don't let lawyers confuse form and substance as cover.
It's perfectly possible to address more possibilities in simple language. The result might run longer, but it won't hurt to read.
Too many companies run on legal docs execs don't read. Too may lawyers write those docs to put readers off. If you want robust legal work for your company, maximize accountability for your legal advisers. All the usual tools.
Sure. Key word is "sometimes." I'm definitely in favor of simpler language when possible, and I think we once spoke about my minimalist ISC variant license.
But... we as a profession are still doing way better than past generations and their English/Middle French/Latin code-switching, talking about beasts feræ naturæ like poor reynard, with his depredations on farmers and on barn yards.
Your second function does more work and covers more cases certainly but could also be written less confusingly to indicate the intent. If I encountered your second function in a code review I would at a minimum be asking you to add comments to clarify to the reader what is happening.
When the article talks about bad writing they aren't suggesting that "simpler" is better. They are suggesting that "clarity" is better. By all means cover the edge cases but don't construct the legal language so it looks obfuscated INTERCAL.
"When a value with integer type is converted to another integer type ... [if] the new type is signed and the value cannot be represented in it; the result is implementation-defined." C99, 6.3.1.3.
"When a value with integer type is converted to another integer type ... [if] the new type is signed and the value cannot be represented in it; either the result is implementation-defined or an implementation-defined signal is raised." C23 Draft, 6.3.1.3.
Calling add(2147483647, 2147483647) with your code could trap, not from the overflow (which is well-defined for unsigned integers) but from casting 4294967294 to a signed integer.
I also don't know if it would work with one's complement.
While the research appears well-considered and the article does indeed appear to make a valid conjecture, I'm a bit put off by the fact that the very first example of simplified "legalese" (re: severance payments, in the introduction) loses quite a bit of fidelity compared to the original. It even adds some major points for potential litigation due to ambiguous verbiage.
Rephrased, even the PIs seem to have trouble parsing legalese. That doesn't invalidate the conclusion of the research, but it does highlight the need for some additional peer review.
> There was this sociologist who had written a paper for us all to read ahead of time. I started to read the damn thing, and my eyes were coming out: I couldn’t make head nor tail of it! I figured it was because I hadn’t read any of the books on the list. I had this uneasy feeling of “I’m not adequate,” until finally I said to myself “I’m gonna stop, and read one sentence slowly so I can figure out what the hell it means.”
> So I stopped-at random-and read the next sentence very carefully. I can’t remember it precisely, but it was very close to this: “The individual member of the social community often receives his information via visual, symbolic channels.” I went back and forth over it, and translated. You know what it means? “People read.”
> Then I went over the next sentence, and realised that I could translate that one also. Then it became a kind of empty business: “Sometimes people read; sometimes people listen to the radio,” and so on, but written in such a fancy way that I couldn’t understand it at first, and when I finally deciphered it, there was nothing to it.
how about a museum historian !! I have a large vocabulary, and after a certain presentation, it seemed obvious to me that anytime one word could be used, three obscure words were its replacement.
TBF those structures do exist for a reason. Just take the “Total Compensation” as an example. Breaking it out as shown in the paper does work, but now some language is repeated; in an edit (and most contracts are edited rather than being created de novo) one of the duplicated clauses could be edited and the other overlooked, especially if they become separated by successive edits.
The inconsistent-edits problem is a real one; failure to follow D.R.Y. cost a Dallas lender $693K because a guaranteed repayment amount was written as "one million seven thousand dollars ($1,700,000)" and words take precedence over numbers, so the lender was repaid $1.07 million and not $1.7 million.
In another example, the agreed deadline for a party to cure a breach of contract was written as "fifteen (30) days"; the breaching party cured before day 30 but after day 15 — which was too late, because the other party had already terminated the contract, and the court agreed that words take precedence over numbers.
So D.R.Y. is a sound guideline to follow in contracts (within limits; it's not an absolute, ironclad rule).
I wish I could find the original link but I remember years ago a HN submission from a startup doing document summarization. The founder was on the discussion and responding to question about what documents are not possible to summarize with his software. Their response was after lots of research they determined that legal documents are the most challenging to summarize because they are intentionally obfuscated
Isn't a lot of legal language intentionally written to be hard to understand? Doesn't that drive up billing hours for lawyers, and benefit those with the most lawyers?
Could we have more rules that difficult to understand language isn't enforceable? Could courts do more to rule against contracts that have poor language?
Normal English evolves. Contracts rely on precise, shared understanding, and so it builds up its own jargon and shibboleths to represent concepts that everyone can have a singular understanding of. You don't want there to be any ambiguity in your contract, or any chance that courtroom precedents may not apply because your language differed from the 'norm'.
The parent commenter said explicitly that Legal English¹ "builds up its own jargon and shibboleths". However, this type of change happens differently than how general English evolves. It might help to think of Legal English as a DSL.
It's about resolution, I think. What one needs functionally is a list of negations e.g. "thou shalt not"/"this does not" and affirmations "thou shalt"/"this does" most generally, the tightest feasible 95% CI - essentially bulletpoints.
In looking at the human interaction space and regulating it, they're sort of trying to verbally describe the output of the Mandelbrot set while maintaining a coherent enough structure that it can be understood at a linguistic level by others. The closer they get to the ground truth the more complex things get in the explanations. And everybody doing this has gone down a specialized rabbithole, they have familiarity with a lineage of particular language that describes, fairly concisely, a known-good model for some contour in the set.
At least that's what I get from it in the scientific domain. Like if I rambled this shit off to the general public - and maybe here - they wouldn't know what I was saying. What's a confidence interval, what's a Mandelbrot set, what implications does it have in the context, what do I mean by model..?
Moreover the systems being scrutinized are based on precedence. Science works its way up to law, and court precedence sets the bar for future interpretations, including the structure of contracts - but also informally by understanding the grey areas in application, like what you can propose to people ignorant of the law that wouldn't be upheld by courts. So the specialist lineages are allowed to proliferate and remodel, I think it's something that simply comes as a product of persistent structures in... Any human endeavor. I'm no coder, but I've heard many times of horrifying outmoded codebases continuing forward, it's an artifact of systemic inertia and optimization around a nucleus of enduring legacy.
In a contract:
-commercial lawyer drafts indemnity paragraph (based on weird world of commercial law)
-ip lawyer drafts ip paragraph (based on weird world of ip law)
-litigator drafts termination clause
English is so incredibly context sensitive at every level from word construction to paragraphs that words/sentences/paragraphs are meaningless on their own.
You'd need a meta language to describe what the contracts mean. Which is what legal language is trying to be. If software engineers were building it today they'd probably add type judgments to each word/sentence/paragraph to enforce the right interpretation, e.g.
Because normal human language doesn't describe things exactly and exhaustively specifying the edge cases; as soon as you need do that (and you do, in law, programming, math proofs, etc), even if you don't use a single specific term you get language that looks like legalese.
In essence, none of the commonly used English words means exactly what you need to, so you need to add many explicit qualifiers to specify which parts of that wide and vague meaning shall apply and which shall not.
In a way, both - along with a third reason. English (like any natural language) is ambiguous and often depends on context. The attempt to "reinforce" ideas in English so that there is no way to have different interpretations is what lands you with legalese. Imagine having to program with that.
My father recently got a letter from a law office. What it wanted to convey was "we saw you sent a bank transfer to Bob lately..." (this was not stated implicitly but it's the only way how they could get address to send the letter) - "FYI Bob owes us 10k, please don't send him any money anymore, instead send it to us directly; or if you send to his account we'll take it anyway" (now that I'm thinking about it, this could be a nice scam tactic, but I'm pretty sure that one was legit).
Anyway, the letter was written in such lingo that on first reading it was as if my father owed Bob 10k. Some elderly person receiving such letter could have had a stroke.
Anecdotally: when that guy in Wisconsin ran his car through a parade, I was curious what would happen to him. I looked up the relevant parts of the Wisconsin criminal laws, which had a rewrite some years ago. And holy shit they were amazing! So clearly written! So well thought out! This was what it sounds like when lawyers who knew what they were talking about decided to write it down clearly. I salute everyone involved.
At least one lawyer out there can write worth a damn, and (having read some godawful wording in contracts) I wish more would try.
The plausible explanation for "center-embedded clauses"(CAC) is this: whenever there is an issue of ambiguity about a concept in the main clause, CAC will clarify that ambiguity. If one makes CAC as an independent clause, this independent clause can clarify, or reduce ambiguity, in all clauses of that paragraph or the whole contract (all paragraphs). In some unforeseen circumstances, making CACs as independent clauses may cause problems.
I see CACs as footnotes, directly attached to the clause.
This is the most painfully obvious headline I have ever read. I wonder when they'll realize that the writing is intentionally poor in order to prevent comprehension.
I suspect in at least some cases terms of service and privacy policies are intentionally hard to read because they don't want you to know how one sided they are.
This gives me an idea. Like obfuscated code competitions, can we get obfuscated contract competitions where the goal is two fold. 1) Write the most difficult to parse contracts, and 2) Sneak it into actual contracts with ever increasing importance. Eventually, one of these contracts/laws would go to trial, and nobody would be able to understand it. Hilarity ensues.
Marked as duplicate. This is not only already implemented, but an alternative implementation, DOS, is available and often preferred by users. I.e. have a bill be so long that a politician can't read it all before having to vote on it.
As a general matter writers that try to use a formal voice but don’t have a lot of practice with it produce writing that is much worse than if they just settled for something more casual.
I’m not saying emojis and text-speak but most of the time writers shouldn’t reach for words or phases that they think sound impressive.
Congress should pass a law requiring every software end user agreement to be written at a sixth grade level and to be no more than 800 words in length. If it's a federal law, then companies will just figure out how to do it.
The sheer verbosity of the average person on the internet has always amazed me. You can't say anything in less than 3 solid paragraphs. Sometimes I wonder if the problem is mine. It certainly seems a hinderance to communication.
A lot of cases hinge on definitions and wording. It's pretty common that bad writing is involved. It's pretty common that the theory of law is also in contradiction with many opinions (eg strict construction).
I've been a consultant reading legal documents hammered out between the senior partners and VPs of the supplier - the language is so straightforward a child could understand what each party is getting.
I did mean incentives (typo), but obscuration seems fitting: "the action of hiding or concealing something", even if obfuscation might be a better fit.
Is there an interpreter from legal language to human? Here, from the comments, I understood that the fact that no one reads the licenses is kind of intentional, for reasons that you can find on this page. This means that someone has to write a translator.
At least in the UK (I moved here btw.). I signed two rental agreements, 3 employment contracts and refused one employment contract on the basis of poor content. Each legal text were 40+ pages, taking very long to process not just beacuse of the sheer size but the obscure phrasing and errors as well. Tiny aspects were added to each in obscure language that a common person is supposed to process and give full consent with legal consequences. With the rental agreements I had no choice but to sing as is despite repeated chapters and typos changing the meaning, also internal discrepancies. I had to live somewhere and there was not much choice, not in the given time. But the refused employment contract was so poor to the level of pathetic, that I had to refuse. Chapters with common language altered uncomprehensible old english legal text, dead references, same text repeated 3(!) times in different places and two kind of paragraphs repeated in 2 locations. It also contained detailed rules about checking tyre pressure on own car when being out on company business and the rules of chewing gum in the office and the consequences of causing damage by the improperly disposed bubble gum. Accepting all in full with the consequence of disciplinary proceedings. Their reasoning addding so many tiny details was that the lawyer suggested adding anything, just in case. Yet, as there are millions of such small details possible in life it was hopefully incomplete still, failing to regulate other very possible scenarios.
I am convinced that this urge to include as much as possible led to the very state of poor and erronous content. As the contract grew and changed throughout the years dead paragraph references, content altering typos, rushly wrote nonsense sentences, inconsistency and errors grew. Led to me being the first (which I am very very surprised about) refusing to sign after about 2 weeks of intense deliberation (plus some days of processing and a full day intense work I had on a 40+ item list about problems and errors above my persoanal wishes). Many of the suggestions went into the contract but others were not possible to change without paying the lawyer and some weeks of work and of course they did not want to deviate too much from the common content, accepting the new contract with everyoen else, so it became hopeless to get to agreement eventually.
If the contract was ca. 3-6 pages max, like in my previous positions from elsewhere in Europe, then it was not in this bad state as it was easier to maintain and also comprehend (like my rental agreement in Sweden being one page premade to standard, purchased in a bookshop). Less was more in this case.
My current contract is also 30+ pages, with an international company but with individual contracts for the various locations, naturally. Our new HR head in the continental Europe is amazed how big the UK contract is compared to the one used in her country. Also agreeing pure details here and there, prepared by a local solicitor hired. We had to have long discussions about the content similar to the case with the refused one, but with less errors and accepting some remaining issues tentatively until the text is altered later during the employment (with the involvement of lawyers).
The contracts I meet here are huge, filled with obsure text difficult to understand for the common people mandated to accept its content in full, also buggy as the consequence of the shear size. I feel the whole purpose is lost this way. Especially when those supposed to comply with each and every details (there is a clause saying violating any clause could allow summary dismissal) cannot understand everything, due to unclear text or buggy content. Additionally the process is long, laborous, and at the same time rushed through in a competitive situation.
I can safely say that I am pretty unhappy about the contractual procedures around me and cannot take those seriously, despite the legal consequences being very real.
> 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 purposes on the residence homestead of a person who is elderly or disabled to reflect any statutory reduction from the preceding tax year in the maximum compressed rate of the maintenance and operations taxes imposed for those purposes on the homestead.
I have an Ivy League education and I still could hardly understand it, and I still think some of the language is ambiguous (i.e. I think "the reduction of the amount of a limitation on the total amount" can be interpreted both ways).
https://www.dallasnews.com/news/watchdog/2022/03/25/the-lang...