Lawyers aren't humans

"You have to write clearly in order to understand where
your mistakes in 
thinking are."
    Attributed to Hugo Bedau, Professor Emeritus of
Philosophy, Tufts 
University



Jim Sowers wrote:
> When I was in law school, back in 1986   I took a
contract writing
> class.  It had a lasting effect on me.  We practiced
writing in plain
> English -- the teacher worked for Bank of America, and
because they 
> had lost
> some cases because courts had found their contracts to
be 
> unintelligible to
> the average consumer (the other party to the contract),
BofA found 
> religion
> and started re-writing their contracts.
>
> We studied a law review article by Richard Wydick,
Plain English for
> Lawyers, which is now in its 3rd edition as a book, and
which I 
> mentioned in
> an earlier post to this list.  The SEC has also imposed
a "plain English"
> requirement on filings.  I think CC has done a pretty
good job on this 
> front
> (with the notable exception of the excessive, and I
would argue improper,
> use of the word "such" as a definite article,
see my earlier post).
>
> Nevertheless, I think the line at the bottom of the
deed that reads 
> "This is
> a human-readable summary ..." is unfortunate. 
Obviously, CC intends 
> to say
> that it is a simple summary for non-lawyers.  Some will
think that I'm 
> being
> too sensitive here, however, I believe that using the
term 
> "human-readable",
> aside from reinforcing some of the nastier stereotypes
about lawyers, 
> also
> reinforces the idea that lawyers use a different,
incomprehensible
> language.  I find that two types of lawyers tend to do
so: those not
> confident enough to make things simple -- e.g., afraid
to replace "any 
> and
> all" with just "any", and those who are
pompous and throw in every
> heretofore and therewith to add to the cloak of mystery
around what it 
> is to
> practice law.  Finally, some of the worst examples come
from non-lawyers
> trying to "write like lawyers".
>
> Thus, I would change the terminology to reflect
"summary" v. "detailed"
> rather than "human" v. "lawyer" --
as even the detailed documents 
> should be
> eminently readable by humans; those are the kinds of
documents really 
> good
> lawyers write.
>
> Jim Sowers
> Lawyer   (DJ,
Dance Teacher, Motorcycle Adventurer)
>
>
>
> On 11/21/06, Andres Guadamuz <a.guadamuzed.ac.uk> wrote:
>>
>> Luis,
>>
>> While I don't know if there was any sort of
doctrinal consideration with
>> the creation of the Commons Deed, I can tell you
that at least in
>> Scotland we drafted the licences under the
requirement of writing form
>> contracts in "plain intelligible
language" contained in section 6 of the
>> the UK's Unfair Terms in Consumer Contracts
Regulations 1999:
>> http://
www.opsi.gov.uk/si/si1999/19992083.htm
>>
>> Regards,
>>
>> Andres
>>
>> Luis Villa wrote:
>> > Hey, all (but really primarily to the lawyers
on the list -
>> >
>> > As I was stumbling through Contracts this
morning (specifically, a
>> > lecture on interpretation of contracts) I was
reminded of the human
>> > readable versions of CC contracts/licenses.
The question that came to
>> > mind: were those inspired by any particular
strain of academic thought
>> > on license legibility/usability? Or did they
just come out of a
>> > general ease-of-use impulse? If there was a
strain of academic thought
>> > on the issue that was inspirational or
otherwise important, any
>> > pointers to where I could start reading?
>> >
>> > Thanks in advance- let me know if my question
itself is 
>> incomprehensible
>> 
>> > Luis
>> >
_______________________________________________
>> > cc-licenses mailing list
>> > cc-licenseslists.ibiblio.org
>> > http://lists.ibiblio.org/mailman/listinfo/cc-licenses
>> >
>>
>> -- 
>> Andres Guadamuz
>> AHRC Research Centre for Studies in
>> Intellectual Property and Technology Law
>> Old College, South Bridge
>> Edinburgh, EH8 9YL
>>
>> Tel: 44 (0)131 6509699
>> Fax: 44 (0)131 6506317
>> a.guadamuzed.ac.uk
>> http://www.law.ed.ac.uk
/ahrb/
>>
>> IP/IT/Medical Law LLM by Distance Learning
>> http://www.
law.ed.ac.uk/distancelearning/
>>
>>
>> _______________________________________________
>> cc-licenses mailing list
>> cc-licenseslists.ibiblio.org
>> http://lists.ibiblio.org/mailman/listinfo/cc-licenses
>>
>
>
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>   

-- 
Robert A. Morris
Professor of Computer Science
UMASS-Boston
ramcs.umb.edu
http://www.cs.umb.edu/efg
http://www.cs.umb.edu/~ram

phone (+1)617 287 6466

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Jim Sowers wrote:
> Nevertheless, I think the line at the bottom of the
deed that reads
> "This is a human-readable summary ..." is
unfortunate.

I agree with Jim. That line should be changed. It is time to
change it.

"This is a summary" says it better and more
appropriately.

Someone who can change it, please do.

Thank You!

Roger Chrisman           
http://wikigogy.org    -  
  free resources
                 for teachers of English as a second or
foreign language
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To be fair, the line "we all know lawyers aren't
human" always gets a
good laugh at conferences 

There's nothing like a good self-deprecating lawyer joke to
break the
ice with non-legal audiences.

Andres

Jim Sowers wrote:
> When I was in law school, back in 1986   I took a
contract writing
> class.  It had a lasting effect on me.  We practiced
writing in plain
> English -- the teacher worked for Bank of America, and
because they
> had lost some cases because courts had found their
contracts to be
> unintelligible to the average consumer (the other party
to the
> contract), BofA found religion and started re-writing
their contracts.
>
> We studied a law review article by Richard Wydick,
Plain English for
> Lawyers, which is now in its 3rd edition as a book, and
which I
> mentioned in an earlier post to this list.  The SEC has
also imposed a
> "plain English" requirement on filings.  I
think CC has done a pretty
> good job on this front (with the notable exception of
the excessive,
> and I would argue improper, use of the word
"such" as a definite
> article, see my earlier post).
>
> Nevertheless, I think the line at the bottom of the
deed that reads
> "This is a human-readable summary ..." is
unfortunate.  Obviously, CC
> intends to say that it is a simple summary for
non-lawyers.  Some will
> think that I'm being too sensitive here, however, I
believe that using
> the term "human-readable", aside from
reinforcing some of the nastier
> stereotypes about lawyers, also reinforces the idea
that lawyers use a
> different, incomprehensible language.  I find that two
types of
> lawyers tend to do so: those not confident enough to
make things
> simple -- e.g., afraid to replace "any and
all" with just "any", and
> those who are pompous and throw in every heretofore and
therewith to
> add to the cloak of mystery around what it is to
practice law. 
> Finally, some of the worst examples come from
non-lawyers trying to
> "write like lawyers".
>
> Thus, I would change the terminology to reflect
"summary" v.
> "detailed"  rather than "human" v.
"lawyer" -- as even the detailed
> documents should be eminently readable by humans; those
are the kinds
> of documents really good lawyers write.
>
> Jim Sowers
> Lawyer   (DJ,
Dance Teacher, Motorcycle Adventurer)
>
>
>
> On 11/21/06, *Andres Guadamuz * <a.guadamuzed.ac.uk
> <mailto:a.guadamuzed.ac.uk>> wrote:
>
>     Luis,
>
>     While I don't know if there was any sort of
doctrinal
>     consideration with
>     the creation of the Commons Deed, I can tell you
that at least in
>     Scotland we drafted the licences under the
requirement of writing
>     form
>     contracts in "plain intelligible
language" contained in section 6
>     of the
>     the UK's Unfair Terms in Consumer Contracts
Regulations 1999:
>     http://
www.opsi.gov.uk/si/si1999/19992083.htm
>     <htt
p://www.opsi.gov.uk/si/si1999/19992083.htm>
>
>     Regards,
>
>     Andres
>
>     Luis Villa wrote:
>     > Hey, all (but really primarily to the lawyers
on the list -
>     >
>     > As I was stumbling through Contracts this
morning (specifically, a
>     > lecture on interpretation of contracts) I was
reminded of the human
>     > readable versions of CC contracts/licenses.
The question that
>     came to
>     > mind: were those inspired by any particular
strain of academic
>     thought
>     > on license legibility/usability? Or did they
just come out of a
>     > general ease-of-use impulse? If there was a
strain of academic
>     thought
>     > on the issue that was inspirational or
otherwise important, any
>     > pointers to where I could start reading?
>     >
>     > Thanks in advance- let me know if my question
itself is
>     incomprehensible 
>     > Luis
>     >
_______________________________________________
>     > cc-licenses mailing list
>     > cc-licenseslists.ibiblio.org
<mailto:cc-licenseslists.ibiblio.org>
>     > http://lists.ibiblio.org/mailman/listinfo/cc-licenses
>     >
>
>     --
>     Andres Guadamuz
>     AHRC Research Centre for Studies in
>     Intellectual Property and Technology Law
>     Old College, South Bridge
>     Edinburgh, EH8 9YL
>
>     Tel: 44 (0)131 6509699
>     Fax: 44 (0)131 6506317
>     a.guadamuzed.ac.uk <mailto:a.guadamuzed.ac.uk>
>     http://www.law.ed.ac.uk
/ahrb/
>
>     IP/IT/Medical Law LLM by Distance Learning
>     http://www.
law.ed.ac.uk/distancelearning/
>
>
>     _______________________________________________
>     cc-licenses mailing list
>     cc-licenseslists.ibiblio.org
<mailto:cc-licenseslists.ibiblio.org>
>     http://lists.ibiblio.org/mailman/listinfo/cc-licenses
>     <http://lists.ibiblio.org/mailman/listinfo/cc-licenses&g
t;
>
>
>
------------------------------------------------------------
------------
>
> _______________________________________________
> cc-licenses mailing list
> cc-licenseslists.ibiblio.org
> http://lists.ibiblio.org/mailman/listinfo/cc-licenses
>   

-- 
Andres Guadamuz
AHRC Research Centre for Studies in
Intellectual Property and Technology Law 
Old College, South Bridge
Edinburgh, EH8 9YL

Tel: 44 (0)131 6509699
Fax: 44 (0)131 6506317
a.guadamuzed.ac.uk
http://www.law.ed.ac.uk
/ahrb/

IP/IT/Medical Law LLM by Distance Learning
http://www.
law.ed.ac.uk/distancelearning/ 


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Jim Sowers wrote:
> 2. The "language lawyers write in" as you put
it, is very often
> different because they choose to write that way, not
because it makes
> a legal difference. Most contracts are between
non-lawyers -- thus,
> the language is expected to be plain and clear. Of
course, certain
> things, like indemnification, will always be more
legally technical.
> [... and similar ideas snipped...]

I disagree. I think jargon is inevitable whenever precision
is required.

Consider, for example, three different meanings of the word
"object":

1) In *computer science* an "object" most likely
refers to "an aggregate
data type, representing both finer data elements and
associated code to
manipulate them"

2) In *astronomy* an "object" is "a physical
entity, usually a star or
planet that appears in a predictable place in the sky for
observation" /
"the thing you are trying to observe"

3) In *law* an "object" is probably "a goal
or purpose of an agreement"

4) In "plain English", the word "object"
most likely means "a tangible
thing"

and so on.

And that's a simple, fairly loosely defined jargon word,
which happens
to correspond to an even more general word in "plain
English".

In the interest of "speaking in plain English", I
once told a fellow
astronomer that a particular star in our observation list
was "faster"
than another one.  I've since forgotten which particular
meaning I had
intended, but I realized after registering his confusion
that it
could've been any one of the following:

1) "this star has a higher absolute radial
velocity"
2) "this star has a higher rate of rotation"
3) "this star has a shorter period of radial velocity
variability"
4) "this star has a higher amplitude of radial velocity
variability"

and there are still more possibilities, had we not both
known from
context that we were talking about absorption spectroscopy
measurements.  Clarity would've been much better served by
me using
correct astronomical jargon, instead of "plain
English".

Now, I am not a lawyer, but I feel pretty confident that the
same sort
of situation exists in legal terminology.

Surely it is impossible to be precise about what you mean in
a legal
agreement without using legal jargon?

Sometimes, "plain English" isn't plain enough. 


OTOH, I agree that calling the "deed" the
"human readable" version is
unnecessary and potentially insulting. The truth is that
this term was
lifted from computer science, and refers to an analogy
between "source"
and "binary" (the source being "human
readable", and the binary being
"machine readable").  Of course, the real
"machine readable" version of
the CC licenses is the RDF version.  However, while this
makes sense to
programmers, they aren't really the principle target
audience of CC
licenses.

A better practice would probably be to call it a
"summary" or a
"non-technical summary".

Cheers,
Terry

-- 
Terry Hancock (hancockAnansiSpaceworks.com)
Anansi Spaceworks http://www.AnansiSpac
eworks.com

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------------------------------------------------------------
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Hi Jim

I agree.

In my field, I'm working with kids - kids who are also
musicians, 
composers, film-makers, artists, authors, computer game
designers 
etc....Try involving  a teenager in the depth of the
discussion you're 
currently having! But Creative Commons licensing is about
them too - 
after all, Mozart was a child prodigy, and many of his major
works were 
written before he was what we currently consider an adult to
be. What if 
he was alive now, and publishing on the internet?

Plain English is one concern, but at what stage of
development? What may 
be clear to young people at the age of 21, may still be
unintelligible 
to a kick-ass musician of 16. (and I've got kick-ass
musicians and 
film-makers of 14 in my world - they need the promotion and
protection 
that Creative Commons licensing can give them.

I'm currently working on a presentation to some young people
I'm about 
to work with about Creative Commons licensing because they
don't 
understand it. Somehow or other they think it is removing
their rights  
- and I now have to convince them that it is enhancing their
(and their 
audience's) rights, and allowing viral promotion to an
international 
audience, legally.

If the words or concepts were more obvious, maybe I wouldn't
have to 
spend valuable time doing this?

Or is the root problem the English language itself? Take the
US and the 
UK - "two nations divided by a common language" -
few other languages 
are open to such (mis-)interpretation. Let's say what we
mean as well as 
meaning what we say...

The hell with lawyers anyway - this is a people's movement -
if it's 
important to me, then it's just as important to my little
brother.

 

Regards

*Pete Rabjohns*
E-mail: infotheprojekt.co.uk <mailto:infotheprojekt.co.uk>

------------------------------------------------------------
------------
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------------



Jim Sowers wrote:
> Hi Terry,
>
> You give good examples #1 and #2.  However, your
examples involve 
> people in a particular discipline talking to each
other, e.g. computer 
> scientists (of which I am also one), astronomers, etc. 
Example #3 is 
> a straw man in my opinion--it is not a legal
definition, just another 
> of the many definitions for that word, and you have
demonstrated that 
> you don't need to be a lawyer to understand the
concept.
>
> These Creative Commons licenses are going to be
between, in most 
> situations, two non-lawyers.  This is a major
difference from the 
> examples you give.  You could have a store owner
entering a CC license 
> with a musician; a graphic artist entering a CC license
with a car 
> dealer, etc.  The parties involved have "plain
English" as their 
> lingua franca.
>
> This is the very point of the plain English movement in
this country 
> and elsewhere in the legal context -- that most of the
language in 
> contracts should be readable by non-lawyers; that words
take on their 
> normal meaning, and if they don't, that can be
explained clearly (just 
> as you did in explaining the special uses below). 
>
> The point is not that there are never special terms in
the law, but 
> rather that contracts can be written with much less
jargon than they 
> currently are.  A reasonably intelligent person should
be able to read 
> well-written contract and be able to the bulk of it. 
You could not 
> say the same about someone reading a treatise on
astronomy, or a 
> medical procedure, or a sort routine for a
doubly-linked list.
>
> Thus, most of the language in the promotional material
for CC talks 
> about people being able to license things without
needing a lawyer.
>
> Again, I'm not suggesting that everyone can will be
able to read a CC 
> license and understand all of it.  But I am a big
advocate of 
> openness: open source, no-DRM, and open access to legal
contracts that 
> are becoming pervasive and non-optional for many. 
Thus, making the 
> actual contract as "plain" and jargon-free
should be a goal.  Unlike 
> science writers, who use an economy of words to be
precise (I used to 
> work for the Jet Propulsion Laboratory), lawyers use an
excess of 
> words, many of which are superfluous.  This was the
very reason that 
> Prof. Wydick was compelled to write his article/book.  
> http:
//www.law.ucdavis.edu/faculty/wydick.shtml
>
> CC takes the extraordinary step of writing a summary,
for which I 
> commend it.  Remember, however, all the websites to
which you are 
> bound by a Privacy Policy; or all the Terms of Service
and User 
> Agreements that you have checked off without reading. 
Do you think 
> you think those agreements are binding on you, even
though you are not 
> a lawyer?  The answer is yes, so, I argue that it is in
your best 
> interest to support the "plain English"
effort so that these contracts 
> will be as readable/accessible as possible to the rare
non-lawyer who 
> wants to read them.
>
> All the best,
>
> Jim
>
>
> On 11/22/06, *Terry Hancock* <hancockanansispaceworks.com 
> <mailto:hancockanansispaceworks.com>> wrote:
>
>     Jim Sowers wrote:
>     > 2. The "language lawyers write in"
as you put it, is very often
>     > different because they choose to write that
way, not because it
>     makes
>     > a legal difference. Most contracts are between
non-lawyers -- thus,
>     > the language is expected to be plain and
clear. Of course, certain
>     > things, like indemnification, will always be
more legally technical.
>     > [... and similar ideas snipped...]
>
>     I disagree. I think jargon is inevitable whenever
precision is
>     required.
>
>     Consider, for example, three different meanings of
the word "object":
>
>     1) In *computer science* an "object" most
likely refers to "an
>     aggregate
>     data type, representing both finer data elements
and associated
>     code to
>     manipulate them"
>
>     2) In *astronomy* an "object" is "a
physical entity, usually a
>     star or
>     planet that appears in a predictable place in the
sky for
>     observation" /
>     "the thing you are trying to observe"
>
>     3) In *law* an "object" is probably
"a goal or purpose of an
>     agreement"
>
>     4) In "plain English", the word
"object" most likely means "a tangible
>     thing"
>
>     and so on.
>
>     And that's a simple, fairly loosely defined jargon
word, which happens
>     to correspond to an even more general word in
"plain English".
>
>     In the interest of "speaking in plain
English", I once told a fellow
>     astronomer that a particular star in our
observation list was "faster"
>     than another one.  I've since forgotten which
particular meaning I
>     had
>     intended, but I realized after registering his
confusion that it
>     could've been any one of the following:
>
>     1) "this star has a higher absolute radial
velocity"
>     2) "this star has a higher rate of
rotation"
>     3) "this star has a shorter period of radial
velocity variability"
>     4) "this star has a higher amplitude of radial
velocity variability"
>
>     and there are still more possibilities, had we not
both known from
>     context that we were talking about absorption
spectroscopy
>     measurements.  Clarity would've been much better
served by me using
>     correct astronomical jargon, instead of "plain
English".
>
>     Now, I am not a lawyer, but I feel pretty confident
that the same
>     sort
>     of situation exists in legal terminology.
>
>     Surely it is impossible to be precise about what
you mean in a legal
>     agreement without using legal jargon?
>
>     Sometimes, "plain English" isn't plain
enough.  
>
>     OTOH, I agree that calling the "deed" the
"human readable" version is
>     unnecessary and potentially insulting. The truth is
that this term was
>     lifted from computer science, and refers to an
analogy between
>     "source"
>     and "binary" (the source being
"human readable", and the binary being
>     "machine readable").  Of course, the real
"machine readable"
>     version of
>     the CC licenses is the RDF version.  However, while
this makes
>     sense to
>     programmers, they aren't really the principle
target audience of CC
>     licenses.
>
>     A better practice would probably be to call it a
"summary" or a
>     "non-technical summary".
>
>     Cheers,
>     Terry
>
>     --
>     Terry Hancock (hancockAnansiSpaceworks.com
>     <mailto:hancockAnansiSpaceworks.com>)
>     Anansi Spaceworks http://www.AnansiSpac
eworks.com
>
>     _______________________________________________
>     cc-licenses mailing list
>     cc-licenseslists.ibiblio.org
<mailto:cc-licenseslists.ibiblio.org>
>     http://lists.ibiblio.org/mailman/listinfo/cc-licenses
>     <http://lists.ibiblio.org/mailman/listinfo/cc-licenses&g
t;
>
>
>
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>   
>
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