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Next Year's Laws, Now Out In Beta!

CmdrTaco posted more than 6 years ago | from the something-to-read dept.

238

Frequent Slashdot Contributor Bennett Haselton writes with his latest which starts "If I were writing laws such that I wanted everybody to agree on how to interpret them, I would use the software development life cycle: First, have lawmakers (analogous to "developers") write drafts of the laws. Then a second group (the "test case writers") would try to come up with situations that would be interpreted ambiguously under the law. Then a third group, the "testers", would read the proposed law, read the test case situations, and try to determine how the law should be applied to those cases, without communicating with the law writers, the test case writers, or each other. If there's too much disagreement in the third group on how the law should be applied, then it's too vague to be a proper law. The only laws which made it through this process would be ones such that when they were finally passed, most citizens (the "users") could agree on how to interpret them, in cases sufficiently similar to the ones the test case writers could come up with."

The irony is that this is how laws are supposed to work anyway. Laws have been struck down as being "void for vagueness" on the theory that people ought to be able to read them and know what they mean. But what does "vagueness" mean, if not that different people cannot independently agree on what a law means, and even the nine highest-ranked legal experts in the country are split 5-4 on how to read it? Some Supreme Courts, such as under William Howard Taft, tried to reach unanimous verdicts whenever possible on the theory that it would persuade people of the correctness of their decisions. But unanimity doesn't prove anything if it was achieved by agreeing to agree. Only if judges were put in separate rooms and independently agreed on how to apply a law to a given case, would that prove that the clarity came from the text of the law itself. Legislators ought to start at least trying to pass laws that would meet that test.

For some reason we seem to have just accepted the alternative as the status quo, where laws are passed that express a general sentiment ("no spam with a 'misleading' subject line") but nobody thinks that you could put two people in different rooms and expect them to agree on how the law would apply in most cases. The parties involved in the first court cases may have to spend ruinously large amounts of money to get to the point where judges rule on how to interpret the law, only to find that lower court judges disagree with each other. Meanwhile, anybody bringing a case now has to look up not just the law, but reference the lower court rulings that support their side, while their opponent of course references the other rulings. And even if a case does finally get appealed up to the Supreme Court, which issues a ruling binding on all lower courts, future researchers still can't find out the state of "the law" by looking up the statute; they have to look up the statute and read the Supreme Court ruling which states how the statute should be read (which may still be ambiguous as applied to their current situation). All of this costs a lot of money, which results in a huge waste of resources if both sides can afford it, and tilts the playing field if only one of them can.

I wonder if the reason this is so widely tolerated is because people have absorbed the notion that making and interpreting laws has to be hard, like brain surgery. But brain surgery is hard because the brain is naturally complex and not man-made. Lawyers also have to learn a lot of complex procedures, but not as complex as brain surgery; the major difficulty in a court case is guessing how the judge may interpret an ambiguous law (which is not "difficult" so much as a matter of being lucky), and knowing the unwritten rules that govern what actually happens (including which written rules are followed and which ones are ignored). And there's no reason in principle why this guesswork couldn't be reduced by having laws be more clear to begin with, and putting the "unwritten rules" down on paper.

I watched a scaled-down version of this play out in the first few cases that I brought against spammers in Small Claims court in Washington (although it involved only a waste of resources, not money, since Small Claims doesn't allow lawyers). You know the chorus, so all together now: Some judges said you could sue people out-of-state, and some said you couldn't. Some judges said you could sue for statutory damages in Small Claims, and some said you could only sue if you'd lost money. Some judges said that you could represent a corporation that you own, and some said that if you're a non-lawyer, you can't even represent your own corporation. Some said you could sue under a federal law in Small Claims, and some said you could only sue under a federal law in federal court. There are many more examples, and those were just the contradictions about Small Claims court procedure generally, not even counting the specific issues raised by the anti-spam law.

But as much as I've complained about that in the past, I don't blame the judges for that part. If the law is unclear, then judges have to come down one way or the other. (What I've complained about is when judges say that their interpretation is "the law", and that if you don't get it, you have to do more research. Lawyers know to take this kind of comment with a grain of salt, but a non-lawyer who takes it at face value, could end up wasting dozens of hours or hundreds of dollars in lawyer's fees before realizing that the judge's interpretation was not actually the law, and a different judge might have said the opposite. The judge should just be honest and say, "Well, I'm the ref and this is how I'm calling it. On another day with another judge you might get something else." I've had cases heard by some judges who basically said as much.) Often both interpretations are reasonable, but that's the point -- if both interpretations are reasonable, then there's something wrong with the way the law is written!

For example, there was the judge who said that you couldn't sue in Small Claims unless you'd lost money, because Small Claims jurisdiction is limited to "cases for the recovery of money only if the amount claimed does not exceed four thousand dollars". Most judges interpreted "recovery of money only" to mean that Small Claims courts can only award money damages, and not, for example, order someone to return property. Two judges, however, said that "recovery of money" implied that you could only literally "recover" money that you used to have and then lost (relying on the common English meaning of the word "recover"). In legal jargon, however, "recover" often simply means taking something from another party, and I won one such case on appeal after I submitted three Supreme Court rulings as evidence that used the phrase "recover statutory damages" or "recover punitive damages" in that sense, since statutory damages and punitive damages refer to money over and above what the plaintiff actually lost. (The original judges did not change their minds, but one of them later recused herself from any future spam cases filed by me, a move that I thought was questionable.)

Here's another example where there's no excuse for the law not to be completely clear, since it's specifying a number. To appeal a Small Claims ruling in Washington, you have to post a bond for "twice the amount of the judgment and costs, or twice the amount in controversy, whichever is greater". Presumably the "amount in controversy" means the amount that the plaintiff was suing for. But hang on -- in Small Claims you can't possibly be awarded more than you sued for. And that means the "the amount of the judgment and costs" will always be less than or equal to "the amount in controversy"! So why not just say "twice the amount in controversy"?

Or perhaps the "amount in controversy" only means the amount that the plaintiff and defendant disagree on. So if you sue someone for $2000, and the defendant agrees on the first $500 but not the remaining $1,500, and the judge's interpretation falls in between and she awards you $1,200, how much of a bond do you post if you want to appeal? $3,000, literally twice the "amount in controversy" between you and the defendant? $2,400, twice the amount of the judgment? $1,600, twice the difference between what you sought and what the judge awarded you? $4,000, twice the amount you sued for?

Beats me. When I first started out, I'd drive myself and my lawyer friends crazy asking, "Well, what's the rule? What's the answer?" Well, now I know: There is no rule, it just depends on what the judge says. Actually in this case, it depends on what the clerk says -- because it's the clerk at the courtroom's front office, not the judge, who handles the paperwork for an appeal and checks that you posted a bond for the right amount, so you have clerks effectively deciding how to interpret the law. (Just last week, after I sued a telemarketer for $1,500 and won a judgment for $565, the telemarketer appealed by posting a bond for twice that amount, or $1,130. This doesn't seem correct under any interpretation of the law, since the "amount in controversy", however you define it, was greater than the "amount of the judgment" of $565.)

Sometimes, courts have settled on how to interpret a rule, but the interpretation is still different from what the rule actually says. The Small Claims form that you serve on defendants says, "You are further notified that, in case you do not appear, judgment will be rendered against you for the amount of the claim as stated herein below..." This is not true -- you can lose even if the other party does not appear (if the judge thinks, for example, that a spam's subject line was not misleading enough). I understand that having that line on the form serves a useful purpose by getting people to show up. But it's still wrong, and everybody knows that it's wrong, and it's on the form anyway.

A more serious example: When I first started suing spammers, if I thought they would show up in court, I'd sometimes try to go to the trouble of catching them in a lie, like the guy who showed up and claimed he didn't know anything about any spam, before I showed that I had recorded a phone call where he admitted that he could send out 5 million e-mails from Chinese servers for $500. (Yes, taping the call was legal -- follow the link for more info.) The written rule is that if you lie under oath in court, you can be arrested for committing a felony, even if the case is only a civil trial. But it turns out the unwritten rule is that perjury in a civil case is almost never prosecuted, and in most of my cases where I had proof that the defendant lied, the best that would happen was that I'd just win the civil case anyway, and sometimes not even that. It's not just Small Claims, either -- in one currently ongoing case, the defendant's lawyer just filed an answer to our complaint stating "Plaintiff subscribed to receive our e-mails". There's absolutely no way their attorney believes that to be true (with the spam in question being sent by mortgages spammers from forged domains, it's hard to see how anyone could "subscribe" to receive those mails even if they wanted to), but attorneys are required to submit such briefs with good faith in their veracity. So why isn't he on the hook for that? Because of the unwritten rule that courts just don't make a big deal out of it.

The point is that none of these issues is hard to grasp. The difficulty lies not in understanding the problems, but in the impossibility of guessing how a judge will interpret an ambiguous rule -- or, in the case of an unwritten rule which contradicts the written ones, the difficulty of knowing the unwritten rule if you don't have a lawyer's experience.

So, ambiguous laws could be divided into three categories:

  1. Laws and rules where there ought to be no ambiguity at all -- for example, rules about who can be sued where, and for how much, and what size bond you have to post if you want to appeal. The fact that these laws are not clear enough to be universally agreed up on, is just silly. (Again, if judges have a conference or an e-mail discussion and decide on an interpretation, that doesn't mean the law as written was clear -- in fact, the fact that they had to have that discussion, proves that it wasn't.)

  2. "Unwritten rules" that are generally agreed upon by lawyers and judges, but which are not actually written down or may even contradict the rules codified into law. Are trials and proceedings actually conducted according to written rules? The acid test for this would be: Hire a physics professor or somebody (so the legal establishment can't use the excuse of calling him a dumbass) and have him look at the history of events and documents in a typical civil case, from the vantage point of one side's lawyer. At each stage in the proceeding, before the professor sees what the lawyer actually did next, have the prof try to figure out what they would have done, based on the written rules. (The question is not whether the prof would have come up with the same strategy as the lawyer, but whether they would have done something that was procedurally correct at all.) If there are too many cases where the professor does something that technically conforms to the written rules, but where the lawyer says it would have been rejected by the court as procedurally invalid -- and if the same thing keeps happening with more and more smart non-lawyers trying the same experiment -- then this suggests that either the procedures need to be changed to conform with the written rules, or the written rules should conform with the procedures. (Because actually changing laws and rules is so hard, a better idea would be to publish an "annotated version" of the court rules which describes the procedures the way they are actually followed.)

  3. Laws governing situations where ambiguity is hard to get rid of -- for example, the part of the Washington anti-spam law prohibiting "misleading subject lines". Here the question is whether a mushy category like that could ever be clearly defined so that people would independently agree on what it meant.

For the first two categories, bringing some clarity to those laws ought to be a no-brainer. Some candidate like Ron Paul or Dennis Kucinich who can say whatever they want because they're not going to win anyway, should make an issue out of it. They wouldn't have to fix the problem all at once. They could just promote it as a core American value that has been overlooked: Laws and court rules should be clear, and they can't be called clear unless people can independently agree on how to read them. The Left could get behind it because it would bring more equality between the rich and poor in the legal system. The Right could get behind it because they style themselves as the party backing judges who are "strict constructionists" that apply the law as literally as possible. (Although at the risk of alienating potential right-wing supporters, I don't think that "strict constructionism" would have much meaning until laws are clarified using something like this process. To say that this or that judge is a "strict constructionist" under our current laws, often sounds to me like a bunch of hooey, when the laws are too ambiguous for anybody to strictly construct anything out of them. Clarence Thomas, who is often held out as an example of a "strict constructionist" judge, has said that Tinker vs. Des Moines, the Supreme Court case that extended First Amendment rights to high school students, is "without basis in the Constitution". But there's nothing in the First Amendment to say that it's limited to individuals over 18, although ironically most "strict constructionist" judges and their supporters, read it as if it is.)

The third category of ambiguous laws would be more interesting to try to fix. Would it be possible to come up with a standard for a "misleading" subject line that everyone could agree on? Probably not. But I think you could measure the ambiguity of a law by using testers and test case writers in the kind of procedure I suggested in the first paragraph, and you could get to the point where there was less disagreement among the testers on how to interpret the law as applied to typical subject lines.

If lawmakers knew in advance that their laws would be subject to that kind of test, they would write them more clearly the first time around. Why couldn't laws be written to include a list of hypothetical situations, for example, specifying which situations the law covered and which ones it didn't? For example, a list of sample spam e-mails to illustrate what the law means by a "misleading subject line". Of course, the trouble with picking examples to illustrate your own points, is that people tend to pick examples that fall squarely in the middle of the categories they're illustrating ("your refund has been processed" is misleading, "printer cartridges for sale" is not). If the lawmaker included illustrative cases like this that were too-obvious examples of what they were describing, then the "test case writers" would be able to shoot down the proposed law by picking hypothetical cases that were closer to the borderline (so that in the third phase, when the testers tried to apply the law to those borderline cases, different testers would classify the borderline cases differently, and the law would fail the vagueness test). To mitigate this, the author of the law should pick illustrative examples that would be at or near the borderline, thus providing clearer guidance as to where the boundary lies between a misleading and non-misleading subject line. Which is what they should be doing in the first place.

Now, there are some problems that even the double-blind test for unambiguous laws, would not solve:

  • Judges could be systematically biased against a particular law (and even proud of it), in which case they can make things difficult for you even if the law is unambiguous. Or, they might be so biased in favor of a law that they carry it further than the clearly proscribed boundaries, as in the case of a judge who upheld the conviction of a man for sending sexually explicit instant messages, even though the law in question was clearly limited to e-mails.

  • Judges may not take cases seriously from non-lawyers. In one series of cases that I brought, I filed written motions with two of the pages stuck together by a tiny thread of paper, so that after the judge ruled, I could examine the motions in the court file to see if the thread was still intact. I found that about half the time, the judge had rejected the motion without reading it.

    This is a hard obstacle to overcome, especially after the Commission on Judicial Conduct ruled that it was not a violation of the Code of Conduct for a judge to reject a motion without even turning the pages. It wouldn't do any good to show that judges ruled against pro se (self-representing) plaintiffs more often than against lawyers, because judges could claim it was because pro se plaintiffs just made more errors (although it would be hard to use this excuse to explain why judges rejected briefs without reading them at all). One way to test this would be to have judges conduct the trials "blind" so that they would see the briefs presented by each side, but they wouldn't know whether the brief was submitted by a lawyer or a non-lawyer representing themselves. However, this would require difficult changes to the way legal procedures are conducted

    A simpler way might be: Once the "unwritten rule book" has been authored, such that your typical non-lawyer in the above experiment knows what kind of briefs to submit at each stage of a trial, have a legally trained third party look at briefs written by the lawyer and briefs written by an average lawyer, and see if they can tell which is which. If the third party can't tell, then that indicates the non-lawyer is writing the briefs almost indistinguishably from a lawyer -- and then if a judge in a real trial keeps hammering them for "procedural violations", it would be because of the judge's knowledge that the party was a non-lawyer, and not because of what the party actually did. On the other hand, if the judge ruled against the person in the same proportion that that person's briefs were being flagged as "obviously written by a non-lawyer" in the double-blind experiment, then that would indicate the judge was being fair.

  • Even if a law is perfectly unambiguous, judges may disagree on whether it is constitutional under the First Amendment, for example. Making these situations unambiguous would involve tampering with the First Amendment, probably not a good idea in this or any other political climate.

  • It wouldn't do anything about the corrupt process by which laws are often passed in the first place, in exchange for campaign contributions. (As one scholarly analysis says, "It's exactly like buying a hamburger, except that under our laws, everybody must pretend that nobody is buying anything, and nobody is selling anything.")

But notwithstanding these problems, I think any law that could pass the double-blind interpretation test, would be an improvement over one that can't. First, because it appeals to our sense of fairness to have rules clearly laid out. Second, if we really followed the void for vagueness doctrine, laws would be able to pass that test anyway. Third, economists have documented that there are economic benefits to having stability and predictability in the law. Economist Thomas Sowell wrote in Race and Culture that in some historical periods, even when groups given second-class status under the law (such as Jews in Eastern Europe or the Chinese in Southeast Asia), they were able to prosper better than they did elsewhere, as long as their basic property rights were protected, and the laws, even the discriminatory ones, were consistent and predictable!

This isn't something that would require a wholesale change in a state's constitution or lawmaking procedure. Any legislator could voluntarily try this process out to see if it resulted in laws that were easier for constituents to understand, and had a greater chance of being interpreted by judges to give the result that the legislator wanted. Imagine having an anti-spam law, for example, which said:

Misleading subject lines are prohibited. This includes not only subject lines which contain false advertising, such as:

  • 'lotion that cures baldness'
  • 'legal copies of Windows for $20'

but also subject line that mislead the user into wasting time on a message. This is because a large part of the harm done by spam is not due to the falsity of the advertisements, but due to the time that users waste on each message before realizing that it's an advertisement. As such, misleading subject lines include those that mislead the user into thinking that the message is from a personal acquaintance, such as:

  • 'Congratulations!'
  • 'Touching base'

or a subject that misleads the user into thinking that the message is a 1-on-1 communication, such as:

  • 'Re: Question about your website'
  • 'Shareholder request'
  • 'urgent cancer call'
  • 'Reminder: link to your website http://slashdot.org/'

[Except for the first group, all of these are subject lines from real spams that I received, which Small Claims judges ruled were not misleading. Giving them the benefit of the doubt, I think they are applying the standard of whether a spam constitutes fraudulent or deceptive advertising, not whether it tricks you into opening it. But the original author of the anti-spam law, when talking about other proposed measures, stated that the point of anti-spam laws is that "Computer users should be able to know instantly what's spam and what isn't."]

If you were reading a series of legal statutes and came across one written like this, it would be jarring, like reading a Wikipedia article about cell division and then getting to the part where someone wrote "And Bennett is gaytarded". But that's because we're accustomed to laws being ambiguous, not spelling out how they should be interpreted using reasons and examples. I would like to see some lawmaker, somewhere, insert a law into their state's legal code that looked and sounded something like this. The idea is so radical that maybe it could only be done by an eccentric, like the congressman who had Elmo testify before a Congressional committee before he was arrested for bribery (the Congressman, not Elmo), or the guy who passed a House Resolution commending Napoleon Dynamite ("any members who choose to vote 'Nay' on this concurrent resolution are "FREAKIN' IDIOTS!"). Or maybe it would be up to a regular lawmaker who thinks, what the hell, let's write a law so that people can agree on what it means, and see if it starts a trend.

As for taking the rules that ought to be clear once and for all, like who can be sued where and for how much, some 3%-getting-candidate should start talking about it. When I read an article about how some lawsuit was stalled because a lawyer complained that it was filed in the wrong district, I can barely keep reading because I get sidetracked thinking this is such a pathetic reflection on our legal system. If the rule about where the suit can be filed is unambiguous, why aren't the lawyers sanctioned for raising it as a false issue? If the rule really is ambiguous, why hasn't it been made clear a long time ago? If you support (or are) a politician or candidate who wants to ask these questions, the field is wide open.

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Good idea ... (4, Interesting)

Jhon (241832) | more than 6 years ago | (#22380074)

Wunderful idea...

The irony is that this is how laws are supposed to work anyway.


Yup. Except one thing:

How can we assume the way we interpret things will be (A) consistant (somewhat addressed in the TFA, but not very well) and (B) not change over time?

Example:

The first amendment says nothing of a "separation of church and state", but "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". Yet we interuprt that clause as such.

Further, the first amendment also notes "abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble", yet we allow many exceptions to these "rights" (no yelling "FIRE" in a crowded theater, no "assebly" peaceably or otherwise when it interferes with public safety, etc...

The second amendment says "...the right of the people to keep and bear Arms, shall not be infringed.", yet we allow for exceptions (no tanks on my block!)

Nowhere in the constitution does it provide a "right" to privacy, but not only was such a right "interpreted" to exist when no such right existed before, it brought with it the "right" to an abortion with strong arguments that this right is absolute (no exceptions).

What good is the damn document if in 20 or 50 years it will mean something entirely different? What good is the amendment process if we can subvert it by just saying "...well, I think it means THIS now"?

How are laws (which must pass constitutional muster) any different?

NOT a good idea. (2, Interesting)

ICLKennyG (899257) | more than 6 years ago | (#22380194)

This is somewhat how it works with the Office of Legal Council who reviews proposed bills to check for Constitutionality and consistency (from the acting president's perspective.) The problem with making actual judges the reviewers is that those are 'advisory' opinions and unconstitutional in this country (USA). Under the very first court, SCOTUS said it undermined their authority and the separation of powers doctrine to issue advisory opinions for the Executive branch, and one can reasonably infer the legislative branch into this. This is the reciprocal case of where the technologically adept don't understand the full process of making laws. Which is refreshing considering how often the reverse happens.

Re:Good idea ... (3, Insightful)

dotancohen (1015143) | more than 6 years ago | (#22380394)

What good is the damn document if in 20 or 50 years it will mean something entirely different? What good is the amendment process if we can subvert it by just saying "...well, I think it means THIS now"?
You do realize that this quote, and indeed almost the whole response you wrote and TFA itself, can be applied to the big three religious books as well as law? In fact, the two are almost one and the same. Look at the fractured, nonuniform interpretations of religion to gain a broad view of the same phenomenon regarding the law.

Re:Good idea ... (1)

AKAImBatman (238306) | more than 6 years ago | (#22380798)

You do realize that this quote, and indeed almost the whole response you wrote and TFA itself, can be applied to the big three religious books as well as law?

It's worth noting that many historical laws were derived from religion. In a sense, religion provided the prototypical framework for modern law. Thus it should come as any surprise when people argue over the interpretation of "Thou shalt not kill". Does it mean, "Thou shalt not murder" (consistent with original text and other actions in the Bible) or does it mean, "Thou shalt not kill anyone, ever." (Consistent with the "turn the other cheek" policy of Jesus.) Interpreting the intent of the law in context of the rest of the Bible provides a doctrine of "Thou shalt not murder". Similar to how lawmakers look for intent in the law when faced with an unforeseen situation, then attempt to set doctrine based on that intent.

Agree and disagree (0)

Anonymous Coward | more than 6 years ago | (#22380464)

It's certainly impossible to make it so you can algorithmically decide what is legal and isn't[1]. So yes, there will always be interpretation issues.

But Bennett Haselton is exactly right that we can do a lot better than what we have now:

-Why should we have to wait until a Supreme Court case to know if what we're doing is kosher?
-Why can't judges rule on constitutionality of a law immediately, rather than wait until there's a case? Wouldn't that save us a lot of time and grief?
-Why is the law so complicated that it takes a lawyer to navigate, effectively taking rights away from those who are wronged but can't make sense of all the things they have to do to legally right the wrong? Imagine what that was like before the internet.
-Like above, why can't laws be corrected the moment someone sees an ambiguity in them?

Btw, my /. username is UbuntuDupe which was recently the target of an internet hate machine, with errant mods modding me down for no justifiable reason. Please, check my posting history [slashdot.org] , and see if the flamebait mods are accurate. Also, check any post below 1, or maybe 2, since a lot of them used the wussy "overrated" moderation. My karma was excellent as of about 2 weeks ago, and now it's down to terrible. Please help if you can by modding up posts in my history.

[1]I've been reading Hubert Dreyfus's What Computers Can't Do, which documents a very long philsophical tradition of aiming for exactly this kind of thing. Gottfried Leibniz is an excellent example, where he proposes to reduce all concepts to binary numbers and have a procedure to determine the truth of anything, so that if he ever disagrees with anyone, he can simply say, "Let us calculate, Sir."

Re:Agree and disagree (0)

Anonymous Coward | more than 6 years ago | (#22380582)

Btw, my /. username is UbuntuDupe which was recently the target of an internet hate machine, with errant mods modding me down for no justifiable reason. Please, check my posting history [slashdot.org], and see if the flamebait mods are accurate. Also, check any post below 1, or maybe 2, since a lot of them used the wussy "overrated" moderation. My karma was excellent as of about 2 weeks ago, and now it's down to terrible. Please help if you can by modding up posts in my history.
While I am sorry to hear about your Karma, doesn't this interjection qualify as 'Offtopic' from the parent thus nulling your argument?

Re:Agree and disagree (0)

Anonymous Coward | more than 6 years ago | (#22380638)

-Why can't judges rule on constitutionality of a law immediately, rather than wait until there's a case? Wouldn't that save us a lot of time and grief?

You are obviously not familiar with the Constitution. Courts are limited to deciding "cases and controversies" - which have been interpreted to mean that there must actually need to be someone out there who was willing to sue in court before the system decides to rule on the constitutionality of what's at stake.

Otherwise, the court system would literally be overloaded with "what ifs" without any real facts. Also, you'd have the judiciary stepping on the legislators toes prematurely. My god, some people are dense.

Re:Agree and disagree (1)

somersault (912633) | more than 6 years ago | (#22380664)

I would have thought that it would be pretty easy to algorithmically decide what is legal in a lot of cases (as long as you can decide on a firm value or set of values for certain ambiguous words), but a lack of evidence - either physical evidence, or trying to judge the true intentions and mental state of the defendant - means we have to bring in a human element. When you have to start trying to force interpretations on a law, then the person is probably guilty of something, and it's just all your fancy lawyers trying to get them out of trouble by not following the actual spirit in which the law was made, with people getting off lightly on technical grounds or whatever. I am not a lawyer, and of course that's just my opinion.

Re:Agree and disagree (1)

moderatorrater (1095745) | more than 6 years ago | (#22380880)

Why should we have to wait until a Supreme Court case to know if what we're doing is kosher?
Because that was the check put in the constitution to make sure that the legislature stays in line.

see if the flamebait mods are accurate
While I wouldn't say that all of your down mods were warranted, you definitely have a sonfrontational writing style and your logic wasn't always consistent. Instead of admitting that the disagreement was over a matter of opinion, you argued quite frequently that what you were arguing was the one and true way to view the subject and anything else was obviously wrong. Probably didn't deserve a lot of the moderation, but I wouldn't say it was a vendetta against you.

Re:Good idea ... (1)

Bob9113 (14996) | more than 6 years ago | (#22380494)

How can we assume the way we interpret things will be (A) consistant (somewhat addressed in the TFA, but not very well) and (B) not change over time?

We cannot. And we should not. Just as in programming we should not assume that business requirements will not change over time.

So we should toss in refactoring of laws. And perhaps work on a set of "Law Smells" that would help us recognize laws that need to be refactored.

Yeah. I really dig this analogy (though I still haven't read the elaboration). Kudos to the poster!

A grave misunderstanding (3, Informative)

tjstork (137384) | more than 6 years ago | (#22380884)

amendment says ...yet we allow for exceptions

The problem with your argument, first and foremost, is that you accept the idea that our rights are those contained in the Bill of Rights. That's not true at all. We naturally have all of the rights that are explicitly not in the Constitution. That's why you see most modern Constitutional Amendments written as "The Congress Shall Have the Power"... every amendment, paradoxically, even those that are supposed to protect civil rights, works by further constraining the rights of the people.

To reiterate, the Constitution is a sort of a treaty between the States. It gives specific powers to the Federal government, and it was understood by the framers (Madison, in particular), to mean that the Federal government could only do those things explicitly enumerated in the Constitution. If anything, the Bill of Rights only works to bar the states from enacting certain laws, but even that is a disputable interpretation.

Ironically, social conservatives who argue the unchanging Constitution are just as wrong as liberals who argue the alterable constitution. Under the Constitution, you do have a right, within your state, to own firearms, to a right to privacy and more, because there is no federal power enumerated to allow the regulation of firearms, privacy, religion, and more. So, from the get-go, by adopting the view of both political parties that says you've only got the rights that the Constitution gives you, you've just shot your freedoms in the foot!

Now, a lot of the rest of the article speaks to some need for consistency. This is an absolute non-starter, as consistency in law is the root of all tyranny. In the United States, the states all have their own courts and their own legal frameworks. Some states are in fact "states", but other states are "other things", and those things all mean something. It means something that Pennsylvania calls itself a Commonwealth and Maryland calls itself a State. Within those states, a lot of that is based on the common law, and the common law is based on the traditions of the people who live in those states. Codified law tends to arise out of a need to set it writing that part of the common law that comes up in court too much or is otherwise the subject of dispute of some kind. So, if you go and try and have a consistent law across all the states, and codify everything, you really are just trampling on all of the rights of all the people because you are inviting disputes over things that are traditions.

Re:Good idea ... (1)

billcopc (196330) | more than 6 years ago | (#22380894)

Simple: make the test cases LAW.

If X then Guilty, else !Guilty.

The big problem with law is the human aspect: different people interpret things differently, and that's why lawyers get paid tons of money to be anal-retentive pricks. They pick one side, not necessarily caring whether it's "right" or "wrong", and defend that side to the death, making up arguments as they go along. It's all about convincing people, and that's why some blatantly absurd stuff gets away while harmless people get fined and jailed. It's just a big game of spin.

Take the spin out of the law, and people will freak out at first, but at least we'll be able to tell with certainly what flies and what doesn't. People will push to the edge of the law, and stop. Those who don't, we throw away.

Re:Good idea ... (1)

Kjella (173770) | more than 6 years ago | (#22380918)

How can we assume the way we interpret things will be (A) consistant (somewhat addressed in the TFA, but not very well) and (B) not change over time?
The more thoroughly you define something, the more likely it'll be consistent and the more likely we would have to actually amend the law rather than just reinterpret the law. As for the constitution, it draws up some really grand lines and was also in part a sales pitch for the United States but could with advantage have been expressed in more detail at times. Unfortunately that would also make it a long legal document only lawyers would read and not common people about what values the US stand for. And in any case, those details should probably not be entrenched in the constitution but described in normal law. One would think that once you got down to very detailed criminal code things would be much clearer.

Nowhere in the constitution does it provide a "right" to privacy, but not only was such a right "interpreted" to exist when no such right existed before,
If you want to talk revisionist interpretation, you're a stellar example. It goes against everything the 9th amendment says both in words and in meaning: "The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people." Despite not being enumerated, the people may have a right to privacy that the government can not infringe upon. Under no circumstance should the bill of rights be considered final or complete.

Re:Good idea ... (1)

Nimey (114278) | more than 6 years ago | (#22380946)

The obvious solution is to re-implement all of our laws in Lojban, since that language is by nature non-ambiguous.

The downside is, of course, that Joe Luser can't read Lojban, so we'll have to educate them early to grok it.

Don't you know . . . (1)

arizwebfoot (1228544) | more than 6 years ago | (#22380086)

Logical Government is a oxymoron?

Good idea (2, Funny)

KublaiKhan (522918) | more than 6 years ago | (#22380090)

Pity that the real legal system uses more of a "microsoft" development cycle instead--write something low quality, throw it past a few friends, and then make the public pay for it.

Wait (1)

Anonymous Coward | more than 6 years ago | (#22380124)

If laws are drawn up this way, how are policy-makers supposed to exploit them for personal gain?

If you call him "Frequent Slashdot Contributor" (0, Flamebait)

everphilski (877346) | more than 6 years ago | (#22380128)

... could you please give him his own ID to post under so we could filter out his bullshit along with the likes of kdawson, etc? Thanks.

Time constraints (3, Interesting)

techpawn (969834) | more than 6 years ago | (#22380132)

You can't be nimble enough to get laws needed passed in time if you put even more bureaucracy in place. What the article proposes would take long, what get implemented would take longer.

Our system in perfect, it's far from. But it works when it needs to.

Re:Time constraints (2, Interesting)

Atzanteol (99067) | more than 6 years ago | (#22380380)

Passing laws quickly is a bug, not a feature. It allows for hastilly written bills and for knee-jerk reactions to push through legislation that is crap at best and detrimental to society at worst.

I can think of no law that needs to be passed quickly, not should there ever be laws passed quickly.

Re:Time constraints (1)

techpawn (969834) | more than 6 years ago | (#22380498)

can think of no law that needs to be passed quickly
Not a one [voanews.com] huh?

Re:Time constraints (1)

Xtravar (725372) | more than 6 years ago | (#22380596)

Sorry, that's a poor example. Keeping the economy "good" all the time is like trying to be happy all the time. Without going into too many details, we're metaphorically taking the plane higher so we can crash harder. Eventually the tinkering catches up, as we're seeing with the value of the dollar overseas and countries ceasing to trade oil in USD.

People wouldn't be losing their houses had the interest rates not been artificially low in the first place, prompting them to spend money.

Re:Time constraints (1)

techpawn (969834) | more than 6 years ago | (#22380730)

But it would still be effected by TFA. It would be slowed in the process more then it was as a piece of legislation that suppose to be passed as quickly as possible. While I may not agree with sending us more into debt to try to jump start the economy presumably caused by wall street speculators and war, it still serves the example as a necessary evil to quickly pass both houses for signature.

Re:Time constraints (1)

Dragonslicer (991472) | more than 6 years ago | (#22380644)

Except that isn't really a law, it's more of a budget item.

Re:Time constraints (1)

Atzanteol (99067) | more than 6 years ago | (#22380738)

That's right, not one.

Re:Time constraints (1)

Xtravar (725372) | more than 6 years ago | (#22380544)

This is exactly what we want. We don't need new laws. The efficiency of a government is inversely proportional to the amount of freedom of its citizens.

Re:Time constraints (1)

plague3106 (71849) | more than 6 years ago | (#22380722)

I would argue that slowing the passage of laws would be a good thing. I for one don't think we should be passing "laws" quickly; that just means we have some new garbage because of knee jerk reactions. The Patiot Act springs to mind, and I'm sure a host of others bad laws can be found because we were trying to "act quickly."

Re:Time constraints (1)

vertinox (846076) | more than 6 years ago | (#22380800)

You can't be nimble enough to get laws needed passed in time if you put even more bureaucracy in place.

Why do laws need to be constantly changed and updated in the first place? Are not the past 200 laws in place and if a new issue comes up then deal with it with existing framework of law.

The way people act its like someone invents an anti-matter ray gun, that if they build one and then zap a person to death with it that all of a sudden we need a law that makes using an anti-matter ray gun illegal.

NO WE DO NOT!

We simply prosecute the guy for murder as if he used his bar hands, knife, or any type of technology. How hard is that!

The problem with law makers is that by definition of their job they believe that everything can be solved with new laws. Simply making something illegal usually doesn't cause people to change their ways unless it was a big gray area.

To correct the "law bloat" we face would require a whole new body of government whose job is solely to revoke old laws who should no longer apply. The real problem is that laws have no expiration date and although many should not, if you keep on constantly making new laws eventually over a couple hundred of years almost everything will be illegal one way or another.

Either we need expiration and review dates on all new laws or we need a body of government reviewing and revoking laws as their sole job.

Re:Arrgh... (1)

vertinox (846076) | more than 6 years ago | (#22380824)

What I meant was the "past 200 years worth of laws not enough".

IANAL... but then neither are you (3, Insightful)

rueger (210566) | more than 6 years ago | (#22380148)

My God. Does anyone actually read these tedious essays? I didn't even go beyond the summary, assuming that maybe that encapsulated what was important.

Anyone who has spent time writing policy or organizational by-laws knows that you cannot anticipate every possible outcome or interpretation. It is simply not possible. The best that you can hope for is to cover off all likely requirements and then have a defined process for dealing with exceptions and challenges.

Like, for instance, a legal system and courts.

Only someone with way, way too much time on his hands would try to devise a system like this.

Re:IANAL... but then neither are you (0)

Anonymous Coward | more than 6 years ago | (#22380418)

Wall of text crits you for OVER 9000! TLDR

Normally I get annoyed at the TLDR folks you see on some messageboards / forums, but in this particular case I share their sentiments.

While it would appear the "frequent contributor" has a grasp of grammar, punctuation and even *gasp* paragraphs, I must admit that he has produced a veritable wall of text of a magnitude which is so imposing and formidable that it immediately dissuaded me from even considering beginning to attempt to read it.

Re:IANAL... but then neither are you (1)

dotancohen (1015143) | more than 6 years ago | (#22380426)

That's what you have lawyers for. To do the leg reading for you.

Re:IANAL... but then neither are you (1)

ericlondaits (32714) | more than 6 years ago | (#22380436)

Plus, the software development process is anything but perfect. Law and lawmaking has existed for thousands of years, and developed its best practices all along... software engineering is still struggling because its a new discipline trying to hit a moving target.

Re:IANAL... but then neither are you (1)

plague3106 (71849) | more than 6 years ago | (#22380888)

Yes, too much time, and not enough brains to realize that our language itself is ambiguious.

What's really needed is source control (2, Interesting)

umofomia (639418) | more than 6 years ago | (#22380156)

Lawmakers always seem to be able to sneak in pork for their own agendas into bills; and often these bills are passed without people remembering where such clauses came from. If there were a source-control-like system, you could see who "checked in" which changes and how the bill evolved before being passed.

But the Constitution... (4, Insightful)

smidget2k4 (847334) | more than 6 years ago | (#22380168)

and much of the common law system is founded on vagueness. It allows for laws to be adapted over time rather than being too specific and having to write a new law for each case. What you are proposing is more like what the UK has in place, where judges are not interpreting the law, but rather handing down what Parliament said should be.

Having laws that are too specific means that we would need to have many, many more laws passed in order to "cover all of the bases" and keep up with changing laws and technology. Because of the way Congress is set up (planned gridlock to slow law making and knee jerk reactions) this would bring our entire system to a halt.

Another point is that, being a federalist nation, forcing laws to be created like this would take power away from the states. The states, essentially, can make up laws however the heck they want. The feds forcing states laws to go through a process like this screams infringement on the principles of federalism.

It also seems that a process like this would slow down the already extremely burdened process of law making, and with what is proposed, the extra laws that would need to be created would either A) Force complete gridlock or B) Create a much larger bureaucracy to deal with the added burden. Probably both, as the parties would never agree on what is "too vague" or not, giving them the perfect opportunity to strike down laws they didn't like.

Re:But the Constitution... (1)

Actually, I do RTFA (1058596) | more than 6 years ago | (#22380508)

Another point is that, being a federalist nation, forcing laws to be created like this would take power away from the states. The states, essentially, can make up laws however the heck they want. The feds forcing states laws to go through a process like this screams infringement on the principles of federalism.

Except that after the Civil War, the Consitution was amended to give far more power to the federal government. Primarilly, this power was for the federal government to ensure equal protection of citizens and their consitutional rights. If this system were set up to "protect people's right to have understandable laws" than it would be a simple matter to claim federal rights to push it on the states.

I do agree with most of the rest of your post though.

Content Management (5, Insightful)

reemul (1554) | more than 6 years ago | (#22380198)

The main thing I'd want lawmakers to borrow from software development is a content management system. For every sneaky loophole or badly written clause, I want to know exactly which person checked it in and when. No hiding garbage in monster bills and then denying responsibility - every word, every revision, all clearly identifiable by editor.

The first law we vette through this process... (1)

bruce_the_moose (621423) | more than 6 years ago | (#22380210)

...is the second amendment!

Filters (1)

DavidTC (10147) | more than 6 years ago | (#22380232)

I always thought that a useful way to restructure the law would be to apply filters at each level.

It is nearly impossible to actually find all the parts of the law that could apply to what you are doing, so I propose a system where at each level, the law becomes more and more specific, and everything under that level can only apply to situations where it matches the filter.

This would remove a lot of the ambiguity, at least where laws are stretched to cover things they weren't supposed to cover.

Laws are always going to be ambiguous (2, Insightful)

Stringer Bell (989985) | more than 6 years ago | (#22380242)

The complete explanation is complicated, but Godel, Escher Bach [google.com] does a pretty good job of explaining. It's an older book, but a great read..

Re:Laws are always going to be ambiguous (0)

Anonymous Coward | more than 6 years ago | (#22380768)

Executive summary for those who don't like to watch intellectual masturbation at that level:

"Godel's Theorem. Woah!"

Which seems to imply:

"Models of complex systems can never be complete."

But doesn't.

How about mere Constitutionality? (1)

michaelmalak (91262) | more than 6 years ago | (#22380244)

How about we just even attempt to have Constitutional laws? Politicians don't like to be held to the Constitution. This used to be in the 1996 Republican Party Platform [cnn.com] before Bush operatives removed it at the 2000 Republican National Convention:

In addition, we support Republican-sponsored legislation that would require the original sponsor of proposed federal legislation to cite specific constitutional authority for the measure.
This in reference to four bills submitted in the 104th Congress:
  • HR 2270: 104 sponsors, didn't get out of House subcommittee
  • S.RES. 152: 18 sponsors, didn't get out of Senate Committee on Rules
  • S. 1039: 20 sponsors, didn't get out of Senate Subcommittee on Constitution, Federalism, Property
  • HR 106: 20 sponsors, didn't get out of House subcommitee
Further evidene, of course, was that there wass no interest in the Constitution is the media bias regarding -- and relatively poor showing in the primaries by -- Ron Paul.

Let's establish the ground rules before coming up with a process to test against those ground rules.

Re:How about mere Constitutionality? (1)

illumin8 (148082) | more than 6 years ago | (#22380284)

Let's establish the ground rules before coming up with a process to test against those ground rules.
The real problem, which the submitter and author fail to see, is that lobbyists write all of the laws in America. They don't want real public review of the laws, because it would shed light on the shady smoke-filled room negotiations that take place where our politicians sell laws to the highest bidder.

Do you really think a law that ties funding for public colleges to whether or not they stop P2P filesharing has anything to do with the public good? No, that law was bought, paid for, and written by the RIAA.

Re:How about mere Constitutionality? (2, Insightful)

michaelmalak (91262) | more than 6 years ago | (#22380336)

Do you really think a law that ties funding for public colleges to whether or not they stop P2P filesharing has anything to do with the public good?
Do I think that education being in the purview of the federal government is Constitutional?

Re:How about mere Constitutionality? (1)

orclevegam (940336) | more than 6 years ago | (#22380522)

It's worse then that. Ambiguous laws, as laid out in TFA, are the bread and butter of lawyers. Getting a loophole filled and badly written law on the books is like printing money for law firms. Further, most politicians are either ex-lawyers, or have strong connections (usually family) in law. To expect anything to actually get passed that would help to clarify the legal process is failing to understand that the people who would be most hurt by that legislation are the ones responsible for passing it. Simply never going to happen, short of a complete overthrow of our government and/or a top to bottom replacement of all public officials (technically different, practically the same thing).

Re:How about mere Constitutionality? (1)

Actually, I do RTFA (1058596) | more than 6 years ago | (#22380598)

Further evidene, of course, was that there wass no interest in the Constitution is the media bias regarding -- and relatively poor showing in the primaries by -- Ron Paul.

Ron Paul had more political views than a strict reading of the Constitution. Even a strict interpertation would be a hard sell (many people agree with an expansive reading of the commerce clause and the equal protection clause.) However, Ron Paul believed in getting rid of paper money (a power clearly granted in the Constitution.) He favored withdrawing from a conflict that may or may not be legal (Congress never flexed its muscles to get the troops out of Iraq, and the Gulf of Tonkin resolution pretty much lets the President start a war in an emergency and then gives Congress the power to veto later.) He favors the dismantling of the IRS and federal income tax, which the Constitution was amended to explicitly allow. It is just not the case that Ron Paul is solely a strict consitutionalist, there are lots of other views he has, and those other views are why he does poorly in the primaries and in the media.

To create a new law (2, Insightful)

SCHecklerX (229973) | more than 6 years ago | (#22380248)

Two should be repealed. Having specific laws for talking on cell phones while driving vs. a more broad law for distracted and unsafe driving are stupid, for example. Many laws simply become outdated and the new laws should account for that and nuke the old one.

When you run out of stuff that you can repeal, well, I guess you have enough laws, don't you?

Re:To create a new law (1)

sexybomber (740588) | more than 6 years ago | (#22380938)

Having specific laws for talking on cell phones while driving vs. a more broad law for distracted and unsafe driving are stupid, for example.
Stupid for the general citizenry, sure.

Stupid for the police? Not so much. In your case of phoning-while-driving, a cop can write you a ticket for both crimes; thus, you pay twice the fine with negligible additional burden on the police department (they process one more ticket, how long does that take?) Therefore, it would be in the police department's best interest to keep both laws on the books.

Furthermore, no politician wants to be seen as "soft on crime", so it's unlikely that they would vote to repeal criminal statutes, even the patently stupid ones.

Software Development Lifecycle (1)

Anonymous Coward | more than 6 years ago | (#22380254)

Just what we need, entry level programmers trying to fix the legal system, great just great.

So when someone gets convicted on a technicality, they can just release a service pack , right?

Software is great, and developers have good skills, but in the legal system, I'll stick to judges and other non-technical people, thank you very much.

Software developers and simple programmers are used to flexibility, and have no body to report to when [invariably] they foul up.

When the equivalent of the PEO [Professional Engineers Organization] or say the Bar association can be formed to oversee, reprimand, and set real standards [ie: not Microsoft ones], I'll give a serious lesson.

For now, it's just a bunch of wannabe's IANAL's talking where they don't belong.

A big missing piece in the plan... (1)

ZeroPly (881915) | more than 6 years ago | (#22380274)

The proposal assumes that laws are self-contained, but in reality they exist in a context of other (possibly even more vague) laws. The tester group would need to be aware of ALL these other laws to declare a particular law vague. Take a simple case - "obscene materials shall not be displayed inside restaurants that serve minors". Do you already have a law that says restaurants cannot refuse to serve customers who have brought children? Not to mention the can of worms about what is obscene, conflicting federal laws and so on. The tester group would have to be judges, and you're right back at the massive clusterfuck that is the US judicial system.

The only solution is to disallow any lawyer or judge from interpreting a law. If there is a question as to whether a law is vague then it has to be determined by a panel of lay people. Take lawyers out of the equation and you have a set of laws that anyone can understand. If it doesn't make sense to a jury of your peers, it's vague and needs to be thrown out.

Your example seems flawed... (1)

Actually, I do RTFA (1058596) | more than 6 years ago | (#22380298)

(Just last week, after I sued a telemarketer for $1,500 and won a judgment for $565, the telemarketer appealed by posting a bond for twice that amount, or $1,130. This doesn't seem correct under any interpretation of the law, since the "amount in controversy", however you define it, was greater than the "amount of the judgment" of $565.)

As far as I know, the appeal cannot result in a worse result for the defendant. The most he would have to pay would be $565, hence that is the amount in controversy.

IANAL.

An ambiguous law give the power to the judge. (1)

Thanshin (1188877) | more than 6 years ago | (#22380304)

If I'm a judge (or anyone with power of decision) and find a law (or rule) that forbids something everybody does, I'll do everything in my hand to keep that law alive, as it gives me power.

Car analogy:

I place ridiculously low speed limits around the city. Then I instruct all the traffic police not to enforce them unless surpassed by 50% or more. There's an exception, if they find someone that seems suspect for any reason, they can apply the law strictly, to the ridiculously low value.

Everybody agrees the limit is ridiculous, but, as the immense majority are never fined, they don't care and they ignores the limit.

Result? Instant power to the police.

The same strategy can be applied in a multitude of cases to give power to whoever decides when a rule or law applies.

Ambiguity is not a mistake is a power generating tactic.

Re:An ambiguous law give the power to the judge. (1)

dotancohen (1015143) | more than 6 years ago | (#22380474)

Microsoft has been doing this for years with software patents ~

It is the best judicial system... (1)

140Mandak262Jamuna (970587) | more than 6 years ago | (#22380306)

Everyone knows USA has the best judicial system that money can buy, and what is he complaining about?

Cannot be done (1)

Rumagent (86695) | more than 6 years ago | (#22380310)

Stating the obvious I know, but law is not software. You wrote summarized the problem in your first sentence: "everybody to agree on how to interpret them", which of course is impossible. Or to put it in term of software: natural language is based on a ambiguous grammar, thus a multitude of interpretations exists. To assume otherwise is a fallacy of logic and amounts to no more than an exercise in futility.

Re:Cannot be done (1)

pclminion (145572) | more than 6 years ago | (#22380422)

Stating the obvious I know, but law is not software.

Maybe it should be more like it. That's the point.

natural language is based on a ambiguous grammar, thus a multitude of interpretations exists.

It would seem that the ideal is for a single, correct interpretation of law. Therefore, we should not use a base language which has inherent ambiguity to define our laws. We need something kind of like... a programming language. A declarative one, at that. Of course, it would be hard to interpret by laypeople, but the law is already hard to interpret and on top of that, ambiguous.

Way too idealistic (2, Insightful)

michaelepley (239861) | more than 6 years ago | (#22380312)

Something like this could never, ever survive in a politicized environment without be hopelessly distorted by partisan congressional staffs (aka "developers"), partisan committees (aka "testers"), partisan lobbyists (aka "customers").

Not that I haven't thought along similar lines before, but I'm way to pragmatic (aka "cynical").

Quite frankly (1)

eclectro (227083) | more than 6 years ago | (#22380320)

Rather than read all thise words to this slashdot story, I decided to hire a lobbyist to get the law I want. kthxbai.

hacking? (1)

rucs_hack (784150) | more than 6 years ago | (#22380350)

So, I could, y'know, submit a patch to the law that inserted a clause which let me get away with stuff?

What's the Difference Between Slashdot and Court? (0)

Anonymous Coward | more than 6 years ago | (#22380374)

In court, this pointless long-winded nutjob gets tossed to the curb for wasting everyone's time.

In slashdot, this pointless long-winded nutjob becomes a "frequent contributor."

Re:What's the Difference Between Slashdot and Cour (0, Offtopic)

dotancohen (1015143) | more than 6 years ago | (#22380504)

In court, this pointless long-winded nutjob gets tossed to the curb for wasting everyone's time.

In slashdot, this pointless long-winded nutjob becomes a "frequent contributor."
In the street, I'm a nutjob that gets tossed to the curb by every girl.

At the sperm bank, this pointless long-winded nutjob becomes a "frequent contributor."

What's wrong with that?

Nothing will change (3, Insightful)

MikeRT (947531) | more than 6 years ago | (#22380386)

Until lawyers are prohibited by constitutional amendment from serving within the body politic. Having held an active license to practice law within the last ten years should automatically disqualify you from being a legislator. It's a pure, textbook case of conflict of interest to allow lawyers to write the laws that they will be arguing because they're the ones who will be profiting from how those laws are written.

You wonder why medical care costs so much? Part of it is because you have people like John Edwards who make a killing off of suing hospitals using piss-poor science and badly drafted civil laws, and then his ass is protected by the other trial lawyers who serve in the North Carolina state legislature, and who will fight tooth and nail to prevent tort reform from killing off much of their livelihood (suing every doctor who happens to be at the scene of an unfortunate birth defect, not one who is actually guilty of malpractice as conclusively proven).

I for one am perfectly willing to sacrifice the modern democratic ideals that people mindlessly hold to in order to fix the system. I don't believe it's a natural right of every citizen to vote or to hold office. The greater public good even demands that certain types of people be disenfranchised. Such people include government employees and contractors, but it can't entirely stop there, in order to limit the power of those who have a vested interest in keeping the system working to fill up their wallets.

Re:Nothing will change (1)

SoulRider (148285) | more than 6 years ago | (#22380808)

Right on brother, the only political branch of governement that lawyers should be eligible to serve in should be the judicial branch. I also dont think it is right that lawyers should be eligble for election in the Executive branch either. We "are" in a position where law makers are passing laws just to ensure their careers if they dont get elected, and not law makers that are creating laws to benefit the people. I really dont consider it a deliberate conspiracy but you have to admit, the law profession as a whole has strategically placed itself in all branches of government so that they benefit more than anyone else from government. And they dont seem to give a rats ass what happens to the public they are suppose to be serving. In my book that is treason, if there actually is organization behind this movement, then the organizers should be strung up.

Re:Nothing will change (1)

MaceyHW (832021) | more than 6 years ago | (#22380926)

Yep, it's a conflict of interest, and lawyers who helped draft the law are barred from representing someone in a case concerning it by the Model Rules of Professional Conduct [abanet.org] .

But at a larger level, how small do you think the legal community is? The vast majority of practicing lawyers never have anything to do with the drafting of laws; this conflict applies only to very small percentage of lawyers. Yes the plaintiff's bar lobbies for pro-plaintiff legislation, but industry groups lobby for pro-defendant legislation. The fact that lawyers are involved in drafting the laws is not a significant source of pork-barrel legislation.

Re:Nothing will change (1)

xlation (228159) | more than 6 years ago | (#22380956)

Why not exclude everyone who receives a government benefit they don't pay for?

Guess what, with a National debt of around $30,000 per person and climbing, it's a pretty safe bet that no one is paying enough.

Remember, it's not just the welfare checks and food stamps--even the rich suck up tons of government money. Sure, Warren Buffet may pay over $800,000 in income tax, but would GEICO and his other holdings be nearly as valuable if it were not for the federal money that went into building roads and educating the workforce? What would the goods cost if we were not paying for a Navy that has practically eliminated piracy?

Test First Legislation (1)

Bob9113 (14996) | more than 6 years ago | (#22380398)

First, have lawmakers (analogous to "developers") write drafts of the laws. Then a second group (the "test case writers") would try to come up with situations that would be interpreted ambiguously under the law. Then a third group, the "testers", would read the proposed law, read the test case situations, and try to determine how the law should be applied to those cases, without communicating with the law writers, the test case writers, or each other.

I like the idea (though I admit I haven't had the chance to read the entire article yet) - it is a captivating notion.

One revision I might suggest; consider test-first legislation. If you write unit tests first, and then write legislation only to satisfy the unit tests, it reduces the risk of adding "we might need this someday" functionality. That hypothetically needed functionality could be the source of maintenance problems and unintended side-effects.

Yeah - I really like your analogy. Well done!

Re:Test First Legislation (1)

mcmonkey (96054) | more than 6 years ago | (#22380840)

Yeah - I really like your analogy. Well done!

I hope neither you nor the OP are developers or lawyers. Shouldn't the first step be deciding what the goal of the code (or law) is? You know, requirements gathering?

As it is, the system isn't far from what is being proposed. Lawmakers (legislators or corporate lobbyists) write the laws. Trial lawyers come up with the test cases. Judges are QA executing the tests and ruling whether the law passes the test.

Sunset clauses on EVERYTHING (3, Insightful)

Anonymous Coward | more than 6 years ago | (#22380402)

Every law (yes, even the laws against murder, rape, etc) needs to have a sunset clause... say, ten years, with some way of keeping track of them and a required public notice period BEFORE the renewal date so that THE PEOPLE can comment.
Stupid laws would get passed once and then die ten years laters. Smart laws would keep getting renewed.

It will never happen (2, Interesting)

MrSmileyJr (981125) | more than 6 years ago | (#22380410)

Excellent article! The sad thing is, I don't think it will ever happen simply because all those in the legal system see themselves as some kind of elite, and doing things in a way that make sense will make "the ones who figure out the mumbo jumbo for you" kind of unnecessary. I think they will do everything in their power to keep themselves in power.

Totally naive (1, Insightful)

Anonymous Coward | more than 6 years ago | (#22380432)

Wow - this is perhaps the most naive essay I've read in a long time on slashdot, and that's saying a lot. The author not only doesn't understand how laws are created and the role of the judiciary (judges DO make law and always have, right-wing political pandering be damned), but he doesn't even understand that bad laws often pass as a compromise between warring political factions in a legislative body. Not to mention that including examples in your laws might unduly restrict the scope of the law when instead you'd want something flexible to cover the unknowable in 20-50 years time.

This is what happens when young-techies try to get involved in a field that is way beyond their competence.

everything made by man'kind' fails (0)

Anonymous Coward | more than 6 years ago | (#22380452)

& then we start again. let yOUR conscience be yOUR guide. you can be more helpful than you might have imagined. there are still some choices. if they do not suit you, consider the likely results of continuing to follow the corepirate nazi hypenosys story LIEn, whereas anything of relevance is replaced almost instantly with pr ?firm? scriptdead mindphuking propaganda or 'celebrity' trivia 'foam'. meanwhile; don't forget to get a little more oxygen on yOUR brain, & look up in the sky from time to time, starting early in the day. there's lots going on up there.

http://news.yahoo.com/s/ap/20071229/ap_on_sc/ye_climate_records;_ylt=A0WTcVgednZHP2gB9wms0NUE [yahoo.com]
http://news.yahoo.com/s/afp/20080108/ts_alt_afp/ushealthfrancemortality;_ylt=A9G_RngbRIVHsYAAfCas0NUE [yahoo.com]
http://www.nytimes.com/2007/12/31/opinion/31mon1.html?em&ex=1199336400&en=c4b5414371631707&ei=5087%0A [nytimes.com]

is it time to get real yet? A LOT of energy is being squandered in attempts to keep US in the dark. in the end (give or take a few 1000 years), the creators will prevail (world without end, etc...), as it has always been. the process of gaining yOUR release from the current hostage situation may not be what you might think it is. butt of course, most of US don't know, or care what a precarious/fatal situation we're in. for example; the insidious attempts by the felonious corepirate nazi execrable to block the suns' light, interfering with a requirement (sunlight) for us to stay healthy/alive. it's likely not good for yOUR health/memories 'else they'd be bragging about it? we're intending for the whoreabully deceptive (they'll do ANYTHING for a bit more monIE/power) felons to give up/fail even further, in attempting to control the 'weather', as well as a # of other things/events.

http://video.google.com/videosearch?hl=en&q=video+cloud+spraying [google.com]

dictator style micro management has never worked (for very long). it's an illness. tie that with life0cidal aggression & softwar gangster style bullying, & what do we have? a greed/fear/ego based recipe for disaster. meanwhile, you can help to stop the bleeding (loss of life & limb);

http://www.cnn.com/2007/POLITICS/12/28/vermont.banning.bush.ap/index.html [cnn.com]

the bleeding must be stopped before any healing can begin. jailing a couple of corepirate nazi hired goons would send a clear message to the rest of the world from US. any truthful look at the 'scorecard' would reveal that we are a society in decline/deep doo-doo, despite all of the scriptdead pr ?firm? generated drum beating & flag waving propaganda that we are constantly bombarded with. is it time to get real yet? please consider carefully ALL of yOUR other 'options'. the creators will prevail. as it has always been.

corepirate nazi execrable costs outweigh benefits
(Score:-)mynuts won, the king is a fink)
by ourselves on everyday 24/7

as there are no benefits, just more&more death/debt & disruption. fortunately there's an 'army' of light bringers, coming yOUR way. the little ones/innocents must/will be protected. after the big flash, ALL of yOUR imaginary 'borders' may blur a bit? for each of the creators' innocents harmed in any way, there is a debt that must/will be repaid by you/us, as the perpetrators/minions of unprecedented evile, will not be available. 'vote' with (what's left in) yOUR wallet, & by your behaviors. help bring an end to unprecedented evile's manifestation through yOUR owned felonious corepirate nazi glowbull warmongering execrable. some of US should consider ourselves somewhat fortunate to be among those scheduled to survive after the big flash/implementation of the creators' wwwildly popular planet/population rescue initiative/mandate. it's right in the manual, 'world without end', etc.... as we all ?know?, change is inevitable, & denying/ignoring gravity, logic, morality, etc..., is only possible, on a temporary basis. concern about the course of events that will occur should the life0cidal execrable fail to be intervened upon is in order. 'do not be dismayed' (also from the manual). however, it's ok/recommended, to not attempt to live under/accept, fauxking nazi felon greed/fear/ego based pr ?firm? scriptdead mindphuking hypenosys.

consult with/trust in yOUR creators. providing more than enough of everything for everyone (without any distracting/spiritdead personal gain motives), whilst badtolling unprecedented evile, using an unlimited supply of newclear power, since/until forever. see you there?

"If my people, which are called by my name, shall humble themselves, and pray, and seek my face, and turn from their wicked ways; then will I hear from heaven, and will forgive their sin, and will heal their land."

meanwhile, the life0cidal philistines continue on their path of death, debt, & disruption for most of US. gov. bush denies health care for the little ones;

http://www.cnn.com/2007/POLITICS/10/03/bush.veto/index.html [cnn.com]

whilst demanding/extorting billions to paint more targets on the bigger kids;

http://www.cnn.com/2007/POLITICS/12/12/bush.war.funding/index.html [cnn.com]

& pretending that it isn't happening here;

http://www.timesonline.co.uk/tol/news/world/us_and_americas/article3086937.ece [timesonline.co.uk]
all is not lost/forgotten/forgiven

(yOUR elected) president al gore (deciding not to wait for the much anticipated 'lonesome al answers yOUR questions' interview here on /.) continues to attempt to shed some light on yOUR foibles. talk about reverse polarity;

http://www.timesonline.co.uk/tol/news/environment/article3046116.ece [timesonline.co.uk]

You're missing the point (0)

Anonymous Coward | more than 6 years ago | (#22380454)

Laws are supposed to be vague, to give judges and juries discretion. When you set in stone exactly what sentence a judge must impose for a crime, you take away the flexability of the judge to consider new and novel circumstances. Having laws that can be interpreted over time is a feature, not a bug -- by saying, for example, that someone must take "reasonable measures" to avoid injuring other people, you can evolve what constitutes reasonable without re-writing the law (maybe the cost of safety devices changes over time, so what used to be prohibitively expensive is now reasonable. Maybe the fact that something was dangerous was not commonly known in the past, so avoiding it wasn't reasnable to expect, but now everybody knows...)

Foe example: say you pass a law in 1900 saying that "employers must avoid injuring their employees, by doing X, Y, and Z", and carefully enumerate all the things an employer might do to injure their workers.

Would you have realized, in 1900, that radium was dangerous, and limiting exposure to radiation (whose existence was known only to a few scientists), to keep it below a certain threshold (based on medical studies that wouldn't be done for decades), to avoid causing a number of diseases (many of which wouldn't be identified or studied for deacades)? Would your law have covered ergonomic keyboards to prevent RSI for computer programmers, even though neither keyboards nor computer programmers existed yet?

But conveniently, if you just say "Employers must take reasonable measures to avoid injuring their employees", you _have_ covered radiation exposure, RSI, and whatever new danger we might discover in 2009, without needing to revise the law every few days. The cost of this flexibility is that you have to have expensive court cases every so often to draw some lines around "reasonable", but the benefit is that you don't have to have an expensive rewrite-the-law session once a week. You can argue that we want a bit more specificity, but saying we should try to run all the way to the extreme of listing everything is nuts.

The "instant messages aren't email" you mention is actually a perfect example of this. The law in question prohibited sending pornographic emails; someone was convicted for sending porn IMs, because the law actually, *gasp*, anticipated future technological change by stating "For purposes of this section, electronic mail shall be defined as: ...", with a reasonably expansive definition. This prevents people from getting around the intent of the law (prohibiting sending electronic porn), by saying "this was an e-fax, not an email", or "really short electronic messages don't count", or "but I sent it from a phone". The law defined what it meant, in a reasonably future-proof fashion, specifically to avoid having to enumerate the full list of communications technologies that someone might invent in the future using the common english words that hadn't been invented yet for these technologies that haven't been thought of yet.

This guy really knows what he's talking about (2, Funny)

JeanBaptiste (537955) | more than 6 years ago | (#22380468)

or he's on meth. Possibly both. Either way I can't tell.

Politics != Software Development. (1)

Vellmont (569020) | more than 6 years ago | (#22380484)

There's a big part of why Things Are The Way They Are missing in this far too long essay (which I didn't find interesting enough to fully read).

Laws aren't always made to serve the people. Laws are made by politicians, many of which have differing motivations. Some want to get re-elected, some don't like the law being developed, and want to either kill it, or make it innefective, some are heavily influenced by lobby groups, some are just plain morons and just believe they can pass any law they like, and it'll just be interpreted The Right Way.

The essay makes the assumption everyone is on board and wants to accomplish at least partially the same goals. You don't need to pay even much attention to politics to know that's not true.

A better idea (1)

sm62704 (957197) | more than 6 years ago | (#22380512)

How about they just write laws in plain english, write them so my developmentally disabled daughter can understand them?

I didn't see why laws should be written so that you have to be a lawyer to understand them. But I don't think this idea is much of an improvement.

I mean, today's software sucks like an F-5 tornado, why would anybody think thet anything else developed using the same plan would suck any less?

-mcgrew

PS: speaking of laws, my latest journal has hookers, alcoholics, a needle junlkie, and an alien. Read at your own risk as it may make your head asplode [uncyclopedia.org]

Re:A better idea (1)

mcmonkey (96054) | more than 6 years ago | (#22380760)

How about they just write laws in plain english, write them so my developmentally disabled daughter can understand them?

Two reasons off the top of my head: 1) Plain english has to many ambiguities. The law should be as consistent as possible in its application. This requires a jargon where words and phrases have very specific meanings that may differ from the layman's understanding of a corresponding plain English word or phrase.

And 2) the law may have to address situations that are beyond the understanding of your developmentally disabled daughter, in any language. This is like saying, how about they just keep everything on the internet to a level appropriate for my developmentally disabled daughter?

Is there a problem if code is written so that only a developer can understand it? Laws shouldn't be obfuscated purposely, but that doesn't mean there is no place for specific legal language.

You Forgot One Thing (0)

Anonymous Coward | more than 6 years ago | (#22380560)


You have NO rights in the United Gulags of America.

Fascistly yours,
The world's most dangerouse person [whitehouse.org]

Your SDLC is broke. (3, Insightful)

mcmonkey (96054) | more than 6 years ago | (#22380562)

First, have lawmakers (analogous to "developers") write drafts of the laws.

Perhaps you meant to say (analogous to "an infinite numbers of monkeys that we hope might someday produce usable code")

Shouldn't there be some requirements gathering? Don't the developers need to know the function the code is performing? Where is the risk analysis?

I mention this because 1) I really hope your development process doesn't start with "write code." But also 2) you miss a HUGE issue with the ways laws are written and propagated in the US of A.

Many of our laws are written by corporations. Corporate lawyers do the requirements gathering and of course place the interests of the corporation at priority one. The corporate lawyers write the bills. The corporate lobbyists pass the bills to legislators.

This is why you see similar laws pop up in multiple states. Lobbyists get a law passed in one state, and they simply re-use the same code for other states. This is especially useful after a controversial law survives challenge in court.

In many instances, today's lawmakers are more akin to script kiddies than developers.

(The OP may have addressed this issue. I stopped reading after the SDLC started with writing code, and not deciding what the code should do.)

assumes competent law makers - ha ha ha (1)

petes_PoV (912422) | more than 6 years ago | (#22380580)

Sadly the only way to become a lawmaker (aka politician) is to win a popularity contest - not to succeed in a technical evaluation of your skills. Even if you could come up with a way to weed out the idiots (and still be able to fill the goverenmental chambers) you could not filter out the corruption.

In fact what you would end with is skillful, corrupt politicians who would be a lot harder to idenitfy than the current bunch of idiotic, corrupt politicians, who give themselves away with their incompetence.

A Little Knowledge is a Dangerous Thing (1)

sed quid in infernos (1167989) | more than 6 years ago | (#22380590)

Clarence Thomas, who is often held out as an example of a "strict constructionist" judge, has said that Tinker vs. Des Moines, the Supreme Court case that extended First Amendment rights to high school students, is "without basis in the Constitution". But there's nothing in the First Amendment to say that it's limited to individuals over 18, although ironically most "strict constructionist" judges and their supporters, read it as if it is.)

There's also nothing in the First Amendment to say that it covers state action at all - the Amendment starts "Congress shall make no law..." The reason courts - including Justice Thomas - apply the First Amendment to the states is because of the Fourteenth Amendment's due process clause - an application that is not at all evident from the text of the Fourteenth Amendment.

So, to apply the freedom of speech clause to students in a public high school, one has to interpret the Constitution to apply the First Amendment to states (essentially expanding "Congress" to "state legislatures") and further interpret it to apply to the acts of unelected civil servants (teachers and principals).

I'm not saying that the decision to apply the free speech clause to public schools is wrong. I'm saying that the frequent contributor's analysis condemning Thomas' position as incompatible with his strict constructionist leanings is laughably superficial.

Law is complex. Can our laws be simplified? Yes. Should they be? Yes, in many case. But this isn't achieved by oversimplifying the underlying issues.

Re:A Little Knowledge is a Dangerous Thing (1)

Beyond_GoodandEvil (769135) | more than 6 years ago | (#22380858)

So, to apply the freedom of speech clause to students in a public high school, one has to interpret the Constitution to apply the First Amendment to states (essentially expanding "Congress" to "state legislatures") and further interpret it to apply to the acts of unelected civil servants (teachers and principals).
That's what happens when you ratify the Constitution, you agree to the limitations set forth. As for the unelected civil servants, like cops?

Btw, what part of No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
Implies that States don't have to abide by 1st amendment?

This is a great idea because... (1)

sarysa (1089739) | more than 6 years ago | (#22380620)

...then new laws would never get passed.

Purposefully Vague (1)

Rydia (556444) | more than 6 years ago | (#22380648)

This entire argument presupposes that legislators want the meaning of the statute's language to be clear. Very, very often vague language is used to effectuate compromise, or to avoid extremely difficult questions that would bog legislation down for years in debate. A little vagueness can go a long way.

Software isn't the real world (1)

jackjjordan (1149367) | more than 6 years ago | (#22380650)

I feel like you are saying "hey we do this for software and it works so why not do it for the real world" Software is complex, but not nearly as complex as the real world. It is actually pretty amazing how well our system does in a country of 300 million people. Most of the problems seem to be opinion or resource related. People feel laws are too strict/not strict enough, should exist/shouldn't - or there are not enough resources to enforce them.

more importantly what about "user" feedback? (1)

ecloud (3022) | more than 6 years ago | (#22380672)

In the government of, by, and for the people, the requirements for the laws should start with the people. The main reason we have a republic instead (we elect representatives to Congress) is a historical one... not enough communication bandwidth when the only choice was a mounted courier. Nowadays we ought to follow Estonia's example and get the people more involved. But now we have too much mass of existing governmental bodies, so it cannot easily happen.

Anyway it's too bad that the summary doesn't even mention user feedback. This is the same mistake a lot of cathedral software companies make: maybe they get some user input for the requirements, maybe they take user feedback after the project is released, but the rest of the design work and implementation are done in a vacuum.

The ideal solution! (1)

slawo (1210850) | more than 6 years ago | (#22380680)

I agree on your process!

When can I vote for you?

Too much cooperation is the problem (0)

Anonymous Coward | more than 6 years ago | (#22380714)

one of the posters mentioned that congress was constructed to be planned gridlock. This was so that very few laws would be made at this level. By the time they got to this level all the people would agree that there is a problem and that there is consensus on the solution. It had been tested in all kinds of local settings so that by the time it went national all the bugs had been worked out.
Instead congress has been streamlined and bad national laws are churned out rapidly with no sunset clauses. this is a result of the civil war. the civil war was actually about who had the power ....states or the federal govt.
Slavery was a side issue dealing mainly about money. It's cheaper to use slaves and the south was getting richer using them.

Nice idea...if those in power care about citizens (1)

jbeach (852844) | more than 6 years ago | (#22380746)

Pardon my cynicism, but those in power don't tend to really give a crap about what's good for citizens or what they want. To manage a smooth society, they have to make sure the classes under them are happy - but it is far from their first concern. Their first concern is to make *their* bosses happy.

And the overall purpose of laws is to tell citizens what to do, for the benefit of those in power. And those in power are both formal officials and those in the same social / economic class. So, one thing the rulers of *any* society absolutely do not want, is their laws to be vetted and determined by those who are *not* in their class, such as the other 98% of that population.

So, an inefficient law-creation process with no adequate testing period or prior review by those who'd be subject to the laws, and as much of a lack of involvement with the subjects as possible, is kind of how the rulers of any nation like it. And, although we do live in a democracy, our leaders do have that tendency as well.

Case in point: NAFTA. That bill was practically hidden from the citizens by both the direct rulers in D.C. *and* the media, before it was passed. This was because they all knew it was to *their* benefit as rulers, and straight talk about it's intentions and it's likely effects on the working class would keep it from being passed. This was *both* Democrats and Republicans, working together for their social / economic class. Joining hands across the aisle, in the true spirit of bipartisanship: shafting the US working class.

As for how the media is involved in this, it doesn't require conspiracy at all; the media is run by wealthy people, and wealthy people, like all people, will not spread information that is not in their perceived best interest. No conspiracy required, just interests in common.

This sort of law review is still a great idea. But it or something like it will probably have to be done by private citizens. It could be done in just such a way as this article describes, perhaps by a "Consumer Reports" type of situation. And perhaps with sufficient economic modeling algorithms, it could end up being a useful tool for the ruling class at well - allowing some laws which actually do benefit citizens to at least be less watered down by the time they emerge from D.C.

Re:Nice idea...if those in power care about citize (1)

jbeach (852844) | more than 6 years ago | (#22380796)

Supreme executive power derives from a mandate from the masses, not from some - not some farcical aquatic ceremony!

Let me get this straight... (0)

Anonymous Coward | more than 6 years ago | (#22380774)

You want to improve the quality of the way something is done, and you're looking to the way we write software as a model?

OMG teh Legal Sytem Just Crashed. (1)

jameskojiro (705701) | more than 6 years ago | (#22380778)

So if you blue screen the legal system will a core memory Dump cause all convicts to be released?

Right now the Legal System is just hanging in there like a Badly Spyware infected Wuindows XP installation.

Windows 3.1 = Magna Carta
Windows 95 = Constituion
Windows 98 = Bill orights
Windows ME = Dred Scott Case
Windows 2000 = Amendments to Constitution
Windows XP = Judicial Precendent

Each built upon the ones above it.

Maybe we can wipe our hard drive and Install Linux, where do we go to open souce our Legislative Branch?

Strange Responses (1)

localman (111171) | more than 6 years ago | (#22380782)

So far the main responses seem to be that it would be too time consuming and hard to write better laws.

Hold on -- we're talking about laws here: the things that literally make and break lives, and infringe or protect our personal liberty. It seems to me a no-brainer that lawmakers could spend a little time and procedure making laws better. To argue otherwise is essentially to say you want more laws regardless of quality. This is strange, because I don't think of the country as a law-factory, whereby we succeed by producing the most laws for the lowest cost. The quality of the laws is serious issue and I'm disappointed (though not actually surprised) to see so many people dismiss it as "too hard".

I guess that's the answer to most things today -- it's "too hard" so we might as well just stall out right here and forego progress.

Cheers.

It's a Zero-Sum Game (1)

cheesethegreat (132893) | more than 6 years ago | (#22380802)

Preface: IANAL, but I am a law student doing fairly well for himself so far.

In legal systems there has always been give-and-take between flexibility and predictability. On the one hand, it is important for citizens to live in a society where they can confidently predict the legal outcomes of their actions (even if that means consulting a lawyer first). On the other hand, lawmakers cannot predict future events and developments, and vague laws enable courts to adapt to rapidly changing legal, social and ethical environments.

TFA is advocating certainty in law. This is a perfectly valid viewpoint, but you must acknowledge what is being lost. Courts will not be able to handle new technologies, new cultural interactions, or changing social standards. Currently, the courts provide a very cheap way to keep laws up-to-date. If you want to have this process operate as the sole means of progressing the law, then expect to be pouring huge amounts of money into the civil service.

Also, this flies in the face of common law systems such as that used in the UK. This is a system which has proven so resilient to abuse that former British colonies such as Jamaica still use the common law of England and Wales to settle many legal disputes. (e.g. R v Beckford 1988). While there are many arguments against Common Law systems, it has proven to be fairly sustainable in England's case, and I would suggest reading more about those.

To paraphrase Sir Winston Churchill, "Common law is the worst possible legal system, with the exception of all the other systems which have been tried from time to time."

Overall, this article looks, smells and tastes like someone writing about a topic they don't really understand. I don't mean any offense by this, but I do recommend reading some books on political and legal theory before suggesting a radical overhaul of the world's legal structure.

The courts exist to make money for lawyers (1)

dloyer (547728) | more than 6 years ago | (#22380804)

If you are ever sued, you will learn that the courts exist for one reason, and one reason only.... To make money for lawyers. It is a process that is amazingly optimized and efficient for this purpose.

Haha! (2, Interesting)

Russ Nelson (33911) | more than 6 years ago | (#22380806)

Haha! You're so funny, Bennet. Do you seriously think that legislation exists to be rational? Laws are rational, but legislation is enacted purely through a political process, which is frequently irrational.

http://blog.russnelson.com/economics/legislation-vs-law.html [russnelson.com]

solutions to this problem are out there (1)

phossie (118421) | more than 6 years ago | (#22380812)


First, a reference: Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085 (2002). Definitely worth a read, good stuff. You don't need some tweak to the process, you just need consistent *language* - to extend the metaphor, instead of switching from waterfall to XP, start using a programming language instead of excerpts from the Rime of the Ancient Mariner. Of course, that would take a lot of the fun out of politics.

The problem is most clear if you take a look in the back of Black's Law Dictionary. There you'll find a collection of legal canons, generally Latin phrases that are supposed to illuminate how to think about the law. Judges and lawyers sometimes use these as grasping-straws... the problem with adages like these is that there's always one that fits, no matter which side you're on. So another reference is in order - this one's a classic, a fun and depressing read: Karl N. Llewellyn, Remarks on the Theory of Appellate Decision & the Rules or Canons About How Statutes are to Be Construed, 5 Green Bag 2d 297 (2002) [Originally published at 3 Vand. L. Rev. 395 (1950)]. Notice the date. People have been frustrated with this stuff for a *long* time.

Second, reemul is on the right track IMO:
http://developers.slashdot.org/comments.pl?sid=449194&cid=22380198 [slashdot.org]

Better oversight *by the public* solves a lot of problems, and this might be one of the first. At the risk of sounding like a shill, take a look at Obama's tech positions. (Come on, you know you want to, he got opinions from Lessig...)

Reflective Equilibrium (1)

Otto_Von_Toronto (1237360) | more than 6 years ago | (#22380866)

This idea is pretty close to John Rawl's reflective equilibrium [wikipedia.org] . The idea that a law derives its legality and force from what a group of rational beings would consent to is a powerful and great idea. Supposedly our current system does work this way, or at least isn't opposed to it, but a great deal hinges upon what we consider "rational" to mean.

The courts exist to make money for lawyers (1)

dloyer (547728) | more than 6 years ago | (#22380868)

The courts stated purpose is to settle disputes, but it does not do that. Instead it serves to create more disputes. It's real purpose is to make money for lawyers. That, it does with amazing efficency. It is a process that is highly optimized. This is what happens when you let lawyers make the rules. Dont ever sell your home to a lawyer. You cant aford to.

Start with requirements, not coding (1)

qaseqase (746962) | more than 6 years ago | (#22380940)

I hope your software development lifecycle doesn't start with coding.
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