Next Year's Laws, Now Out In Beta!

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.

Good idea ...

[Jhon]

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.

[ICLKennyG]

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 le

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[cHiphead]

All any of this shows us is that Lawyers are the SysAdmins of Law, a few really know their stuff, most of them are 'paper' certified instead of experienced and don't know what the fuck they are doing, and nobody likes them until they need help, upon which they get to stick it to you with their hourly rates.

Also, the saying applies to both IT and Law: If you can't dazzle them with brilliance, baffle them with bullshit.

Cheers.

Re:Good idea ...

[dotancohen]

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.

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[AKAImBatman]

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 d

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[Bob9113]

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

A grave misunderstanding

[tjstork]

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.

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[Kjella]

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 i

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[Nimey]

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.

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[MasterC]

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"?

Randy Barnett in "Restoring the Lost Constitution" (ISBN 0691123764) argues that the law should be interpreted as a reasonable person would at the time of enactment (original meaning). Not the intent of the writers, but the meaning. This goes for the constitution, all of the amendments, and all statutory l

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[TubeSteak]

Author of TFA:

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

You:

The legislative branch writes laws that are clearly unconstitutional.

What makes you think that the legislative branch writes laws?
The norm is that usually your representative('s staff) searches for or is provided with model legislation (aka a draft).

If you don't believe me, just click through the first 10 pages of Google results:
http://www.google.com/search?q=model+legislation [google.com]

The writing of laws has been in the hands of non-governmental draft makers for quite some time.
Anyone can read the drafts, make up test cases and then interpret them (Steps 2 & 3

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[Random BedHead Ed]

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

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[Quattro Vezina]

Not only that, but we have also expanded this right beyond what it literally says in other ways. Consider that the phrase "Congress shall make no law" has no literal consequences for the states. In theory New York could ban publications critical of Governow Spitzer without violating the letter of the first amendment, but in practice the Supreme Court has interpreted it more broadly. (Thank goodness the so-called "strict constructionists" lost that one.)

It's not so much that the strict constructionists lost, but that the 14th Amendment overrode it. The relevant part: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor den

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[digitalhermit]

Hehe..

As I was reading this, the first thing that came to mind was Godel's Incompleteness Theorem. I don't understand it much at all, but essentially it was saying that no one could design a useful ruleset (i.e., axiomatic system) that was entirely self-consistent. The notes (from smart people who understand the Theorem) seems to say that you either have outright contradictions in the system, or there will be statements that cannot be proven by the system.

I know it's a complete misapplication of Incompleten

STATES RIGHTS

[inKubus]

The problem with the system is not that it's lacking transparency and a review process. The legal system is a fairly fine review process. The problem is there's too much law for the number of people. It's caving in on itself. That's why the framers favored a SMALL federal government. There's just too many special cases, regional differences, etc. for federal laws to be made and not adjusted hundreds of times.

That's why the STATES are supposed to be the test environment. If the law sucks, people will m

Re:

[somersault]

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 la

Re:

[moderatorrater]

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 moder

Re:

[Anonymous Coward]

UbuntuDupe again.

Because that was the check put in the constitution to make sure that the legislature stays in line.

I think you misunderstood the focus of that question. Yes, it's good that the courts make the legislature stay in line. But people need to know *now* what is not *and* what is legal. If the mismatch between the constitution and the law isn't resolved before the law is passed, we are in legal limbo.

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.

That's because you're not a subscriber and thus can't see the string of four-in-a-row -2 flamebaits during a debate on IP, two [slashdot.org] of which [slashdot.org] should still be visible to non-subscribers. (mine expir

Good idea

[KublaiKhan]

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.

Time constraints

[techpawn]

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:

[Atzanteol]

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:

[techpawn]

can think of no law that needs to be passed quickly

Not a one [voanews.com] huh?

Re:

[Xtravar]

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:

[techpawn]

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:

[Dragonslicer]

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

Re:

[Atzanteol]

That's right, not one.

Re:

[Xtravar]

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:

[plague3106]

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:

[vertinox]

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

Re:Arrgh...

[vertinox]

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

Re:

[rahvin112]

As others have said, moving a law through the system too quickly are exactly the laws that cause the most problems. The DMCA went through very fast, the patriot act went through faster than any law in history.

There is a simple rule for laws that congress has never taken into account. No law should be passed that isn't enforced in every case. Laws that are rarely enforced are exactly the laws that the current "establishment" uses against people they want to punish. Take for example the requirement in the rec

Re:Time constraints... I'd say he's on the scent,

[davidsyes]

but the idea will be sent away because it makes too much sense, and will interfere with lawyers ever-historic ability to make cents...,

IANAL... but then neither are you

[rueger]

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:

[dotancohen]

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

Re:

[bwalling]

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

When I'm looking at a leg, I prefer to skip straight to the top.

Re:

[ericlondaits]

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:

[plague3106]

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

What's really needed is source control

[umofomia]

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...

[smidget2k4]

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:

[Actually, I do RTFA]

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 cit

Re:

[Stradivarius]

You have a point, but there is a difference between being vague intentionally and being vague due to sloppiness.

Certainly you don't want to define the law so tightly that it can't deal with minor evolutions in society (e.g. instant messages versus email, say). And certainly there will always be unusual circumstances that can't all be enumerated in the bill, thus requiring judicial interpretation.

But on the other hand, if highly educated and intelligent lawyers and judges cannot agree, at the time of its pas

Content Management

[reemul]

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.

Re:

[Nerdfest]

Also, how about treating the badly written or sloppy clauses like bugs, and actually going back and fixing them.

Re:

[StreetStealth]

Yes! Let's take it a step further though: The legislators that vandalize an otherwise good bill get their IPs banned.

Re:

[Bob9113]

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.

Brilliant.

Re:

[inKubus]

Except they would then "legally" spam the bill with commas, periods, t crossing, i dotting so you couldn't find the real corrections.

Laws are always going to be ambiguous

[Stringer Bell]

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..

How about mere Constitutionality?

[michaelmalak]

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

Re:

[illumin8]

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

Re:

[michaelmalak]

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:

[orclevegam]

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. Simpl

Re:

[Actually, I do RTFA]

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 f

To create a new law

[SCHecklerX]

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:

[sexybomber]

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 inter

Your example seems flawed...

[Actually, I do RTFA]

(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.

IANA

An ambiguous law give the power to the judge.

[Thanshin]

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 li

Re:

[dotancohen]

Microsoft has been doing this for years with software patents ~

It is the best judicial system...

[140Mandak262Jamuna]

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

Cannot be done

[Rumagent]

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:

[pclminion]

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 laypeo

Way too idealistic

[michaelepley]

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

[eclectro]

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

hacking?

[rucs_hack]

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

Comment removed

[account_deleted]

Comment removed based on user account deletion

Re:

[MaceyHW]

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-defendan

Re:

[theoddball]

Having held an active license to practice law within the last ten years should automatically disqualify you from being a legislator.

Um, you do know what legislators do, right? They make laws. You know who spends a lot of time looking at what statutes say and applying it in practice, day in and day out? Lawyers. (Well, lawyers writ broadly -- which includes judges, prosecutors, and a whole bunch of other people who aren't part of the plaintiff's bar [i.e. John Edwards and pals]). There's a reason so many

Re:

[ubrayj02]

What you have written sounds unreasonable. I believe that you are describing an absurd situation.

In your ideal scenario, would specialists in any field would be barred from influencing the field they specialize in?

How would you feel driving on a large suspension bridge designed by a committee of your "peers" (think of jury duty) vs. a bridge designed by humans who have spent most of their lives studying bridge design?

Many people who are interested in becoming legislators go to school to study law. They know

Re:

[grimarr]

I think this would work better if you turned it around. That's an idea I've been in favor of for a long time.

First, it's probably unconstitutional to add that sort of restriction to tell voters they can't elect the person they want to represent them.

Secondly, it solves the wrong problem. The problem is a person passing law X, then later, making money as a lawyer prosecuting/defending people relative to law X. So, make that illegal: No person may practice law in a jurisdiction over which he or she has ha

Re:Nothing will change

[DragonWriter]

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).

This is a nice speculation. The problem is that actual studies of medical costs find no relation in different jurisdictions between the rate of increase in medical costs and malpractice awards, and even no relation between the rates increases in medical costs and whether or not jurisdiction has established award limits through some form of "tort reform". The fact is, malpractice awards aren't a substantial driver of the increases in healthcare costs. But they are what the politicians who are backed by the pharmaceutical companies and other healthcare giants like to point to, to direct the blame away from their own sponsors.

(Also, how you would only sue people after they are conclusively proven liable is beyond me; people are proven liable, or not, through a process which commences with a lawsuit.)

Test First Legislation

[Bob9113]

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

Re:

[mcmonkey]

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.

Re:

[Bob9113]

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?

Obviously you can't write tests without knowing the business requirements. But this isn't a discussion about the entire development cycle, only about how to advance a portion of it. I rather thought that was apparent.

As it is, the system isn't far from what is being proposed. Lawmakers (legislators or corporate lobbyists) write the laws. Trial

Sunset clauses on EVERYTHING

[Anonymous Coward]

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

[MrSmileyJr]

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.

This guy really knows what he's talking about

[JeanBaptiste]

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

Politics != Software Development.

[Vellmont]

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 i

A better idea

[sm62704]

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 alie

Re:

[mcmonkey]

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 underst

Your SDLC is broke.

[mcmonkey]

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

[petes_PoV]

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.

Purposefully Vague

[Rydia]

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.

more importantly what about "user" feedback?

[ecloud]

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

Strange Responses

[localman]

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 s

It's a Zero-Sum Game

[cheesethegreat]

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 eth

Haha!

[Russ Nelson]

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

[phossie]

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

Laws are vague because people don't use logic

[hypnagogue]

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

No, the problem is that most folks that say "there ought to be a law" can't think logically. If they were capable of thinking their argument through, they would realize that although something is seen as "undesirable" according to some ineffable social science aesthetic, it does not follow that it can be forbidden or regulated.

Take "assault weapons bans", for exa

Two suggestions to improve our legal system

[Stiletto]

These were posted a while back buy some Slashdotter, and I thought they were awesome:

1. Every law automatically sunsets 10 years after it is passed, without exceptions. This means if it's important enough to be considered pertinent, you still have to keep passing it over and over to prove it.

2. Every law must be read aloud, IN FULL, to an open lawmaking session, before it can be passed. This prevents those 1000 page laws that contain millions of lines of loopholes and exceptions that no legislator could p

Code is usually better when it is more brief

[roystgnr]

There are always exceptions, but unless you're looking at obfuscated (whether deliberately or via writing in Perl) line noise, it seems that briefer code factored into smaller functions ends up being easier to understand and easier to test. For those reasons it ends up with fewer mistakes per line as well as more functionality per line.

I suspect the same would be true for the US Code, which IIRC contains tens of millions of words now. Nobody would expect most citizens to even read a fraction of it, but we

Filed under...?

[xerxesVII]

This wasn't really an "Ask Slashdot". I guess you could call it a "Tell Slashdot".

I'll have to type one of these up and submit it. Stay tuned, folks. Next week you just might read a long-winded blog entry by yours truly in which I'll talk about something that really bugs me and how I think it could be fixed. Behavior of cats? Behavior of women? Use of turn indicators among the driving populace at large? I'm open to suggestions!

I would be happy if ...

[RKBA]

I would be happy if our legistraitors would at least read the bills [amazon.com] before they pass them into law!

Understanding the law (generally and specifically)

[DragonWriter]

If I were writing laws such that I wanted everybody to agree on how to interpret them

Guess what? That's usually not the purpose of laws. Many laws (including, for instance, the U.S. Constitution itself) are expressly written so with ambiguities that will be resolved in application. One theoretical reason for this is that application in the light of concrete facts will be better consider that abstract consideration; a practical reason for it is that otherwise, often, disputes over edge cases would prevent a

Missing the Forest for the trees

[MaceyHW]

IAALStudent. Four quick points and one big beef:

1) For what it's worth, the anecdotal evidence among lawyers is that pro se litigants are given a lot of procedural latitude by judges.
2) The first option for the bond amount is not subsumed by the second. Judgment amount plus costs is greater than twice the amount in controversy when the amount in controversy is less than fees. (e.g. you sue for $50 and filing fees are $100). Generally, and certainly at the federal level, the amount in controversy mean

i disagree

[bmajik]

the suggestion that the justicies would need to reach the same conclusion in private is foolish.

The reason you go for 9 redundant judges is not to have broad unanimity. It's to get diversity of opinion to the input of the legal function.

Suppose that one of the justices really _nails_ the interpretation of the law, or his copy of the paperwork was the only one where a "comma" was printed clearly enough to see.

In isolation, he might come to the correct, but minority opinion.

Once all the justices confer, they

Simple solution!

[thisissilly]

When a new law is passed, have a one year period in which the new law is optional for the general populous (they don't have follow it, but can use if if they want), but mandatory for all elected officials.

Laws are ROMs, courts are CPUs

[mbstone]

--as my Usenet .sig used to say. I Am A Lawyer And A Former Software Developer. Why Slashdot chose to publish this rant from a legally uneducated pro-per is beyond me. But there are some valid points:

Yes, writing laws is kind of like developing software. With a few exceptions:

There are fewer lawyers than ever in Congress and other legislative (lawmaking) bodies. There is even a post in this topic -- at present it is moderated Insightful!!?! -- that opines that lawyers should not be legislators. C'mon people, would you want users administering your firewall or coding your apps? The bad thing about there being few lawyers in the legislature is obvious. You wind up with badly drafted laws. OK, sometimes lawyers write laws that benefit the economic interests of lawyers, but I respectfully submit that, on balance, having lots of badly drafted laws is worse.

There is no development life cycle as such. Legislators get ink by passing laws, not repealing them. Bad laws tend to stay on the books like so many big, wet, farts. Same for useless or obsolete government agencies. I wish someone would count the sizeof(bytes in the federal and state statute books) and graph the progression of this number over time. There is no formal iterative process to review recently passed laws to see if they are achieving their intended effects.

Most people (especially the media, the legislature, and the electorate) buy into the notion that passing a law will actually solve the perceived social problem the law was designed to address. My state's legislature (California's) passes 700 silly laws each and every year.

There are, of course, endemic political factors such as the forever-war among proponents of liberal / conservative /authoritarian / libertarian ideologies; as well as special interest groups and their campaign contributions / lobbying expenditures.

P.S.: If you are a mega-successful technology CEO, you will get more bang for the buck sponsoring good candidates (ahem) for the legislature than expending money trying to influence or explain things to the dummies who are presently in office.

P.P.S.: Many seemingly irrational aspects of the law are that way for good and valid reasons, but often the reasons are difficult to explain to nonlawyers. You will just have to go to law school to find out.

Insufficient Cynicism

[anorlunda]

Your little essay sounds great, but it is based on a faulty assumption. What makes you think that Congress is interested in passing unambiguous, effective laws?

Members of Congress are not interested in the public good. They are motivated to get reelected and to acquire and maintain power. They love vague laws because then they can do the easy part while leaving the hard parts to the courts. Consider antipornography laws and campaign finance laws for example. They want Congress to hold the authority to write laws but pass to the executive and judiciary branches the responsibility to enforce and interpret them. The more vague the laws are, the more Congress can point to the failures of the other branches and thus argue that more power should accrue to Congress.

The best possible case for a Congressman is when he/she can vote on vague laws that span the issue. "I voted for the war before I voted against it." I remember reading that in New York state, for example, 33 laws pass one house of the legislature but not the other, and thus never become law. That's great for the members. They can vote on every side of every issue without fear that these bills will actually become law and that someone might hold them responsible.

I learned a long time ago that it is foolish and futile to try to apply logic to income tax rules. Similarly, it is foolish and futile to try to assume good intentions with regard to the law making process.

Re:

[Beyond_GoodandEvil]

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 la

Re:

[DigitalSorceress]

/*

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

*/

In that case:

Windows Vista = Post-911 / Homeland Security Paranoia and FUD

Seriously. It feels as if there is more abuse of the law and of our rights since 9/11, The whole system is a giant elephant in the room, but very few p

Re:

[tjstork]

...is the second amendment!

But then we would never agree, and in fact, we would never agree on gun control. Majority of Americans oppose gun control, which is why Democrats always lose presidential elections whenever they bring it up. Republicans could run Hitler, and Democrats, Ghandi, and if Ghandi said that guns should be banned, Ohio and PA go for Republicans, and with them, the general election.