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Next Year's Laws, Now Out In Beta! 238

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

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

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

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

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

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

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

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

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

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

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

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

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

So, ambiguous laws could be divided into three categories:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  • 'Congratulations!'
  • 'Touching base'

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

  • 'Re: Question about your website'
  • 'Shareholder request'
  • 'urgent cancer call'
  • 'Reminder: link to your website'

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

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

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

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Next Year's Laws, Now Out In Beta!

Comments Filter:
  • Good idea ... (Score:5, Interesting)

    by Jhon ( 241832 ) * on Monday February 11, 2008 @12:32PM (#22380074) Homepage Journal
    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?


    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?
  • Time constraints (Score:4, Interesting)

    by techpawn ( 969834 ) on Monday February 11, 2008 @12:39PM (#22380132) Journal
    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.
  • by umofomia ( 639418 ) on Monday February 11, 2008 @12:41PM (#22380156) Journal
    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.
  • NOT a good idea. (Score:2, Interesting)

    by ICLKennyG ( 899257 ) on Monday February 11, 2008 @12:44PM (#22380194)
    This is somewhat how it works with the Office of Legal Council who reviews proposed bills to check for Constitutionality and consistency (from the acting president's perspective.) The problem with making actual judges the reviewers is that those are 'advisory' opinions and unconstitutional in this country (USA). Under the very first court, SCOTUS said it undermined their authority and the separation of powers doctrine to issue advisory opinions for the Executive branch, and one can reasonably infer the legislative branch into this. This is the reciprocal case of where the technologically adept don't understand the full process of making laws. Which is refreshing considering how often the reverse happens.
  • Re:Time constraints (Score:3, Interesting)

    by Atzanteol ( 99067 ) on Monday February 11, 2008 @12:58PM (#22380380) Homepage
    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.

  • It will never happen (Score:2, Interesting)

    by MrSmileyJr ( 981125 ) on Monday February 11, 2008 @01:00PM (#22380410) Homepage
    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.
  • Haha! (Score:3, Interesting)

    by Russ Nelson ( 33911 ) <> on Monday February 11, 2008 @01:35PM (#22380806) Homepage
    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. []
  • by Anonymous Coward on Monday February 11, 2008 @02:01PM (#22381108)
    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 [] of which [] should still be visible to non-subscribers. (mine expired and no, I don't see the merit in paying while being victimized by the hate machine)

    Let's look at some more:

    Wussy double-overrated [] for pointing out that a politician weaseled on a quesion by stating goals instead of which policies he would support to achieve those goals. Anyone can be "in favor of eliminating crime" for example. Longer prison sentences? Well, then we have debate.

    Net -2 flamebait [] for saying that a lot of /.ers don't like the Boy Scouts because of their position on homosexual Scoutmasters.

    -1 Flamebait [] for lengthy analysis post, much of which praises the doctor, and goes all the way to reveal very intimate medical history details (not something people like to do) to refute claims about the medical system.

    -1 Overrated [] for question that invokes a few interrelated facts about Google relevant to the spectrum auction.

    -2 Overrated [] for question about the seemingly improper use of the term "insider trading".

    -1 Overrated [] for qualified defense of Hillary and analysis of how to handle people who can't afford emergency care.

    And it goes on into the part that only subscribers can find. It's ridiculous! There's no way I deserve to go from excellent to terrible that quickly for those kinds of posts.

    And I don't consider it off-topic to tag this plea onto otherwise constructive, relevant comments.
  • by mbstone ( 457308 ) on Monday February 11, 2008 @03:08PM (#22381928)
    --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.

  • by anorlunda ( 311253 ) on Monday February 11, 2008 @03:47PM (#22382434) Homepage
    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.
  • by DragonWriter ( 970822 ) on Monday February 11, 2008 @05:09PM (#22383452)

    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.)
  • STATES RIGHTS (Score:3, Interesting)

    by inKubus ( 199753 ) on Monday February 11, 2008 @05:37PM (#22383734) Homepage Journal
    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 move away. So the states have a tendency to enact laws which the people want. Unlike the state environment, you can't just "move away" from your country without a lot of hardship. So there's no checks on the government enacting all kinds of laws. Sure they eventually get edited, but the problem is the interim time (which is growing constantly because the system is so bogged down).

    The process (in the constitution) goes something like this: The states try to adopt regulations general enough for the entire state's population to accept. This means city AND rural folks. If a city or county needs stricter laws (say gun use in city limits), they enact at that level. The states are all in competition with one another to make the best laws. Good laws mean people stick around, pay taxes, have jobs, and are generally happy.

    Over time, a state enacts a good law, people love it. Other states rush to enact the same law. After a certain time period, people all over the country realize this law is so good, it should probably be in the constitution, so the other countries in the world can read it and see what we're all about. In this sense, the states themselves have a vote, in what's called the Senate. They really elect 2 people to vote for them but that's what a senator really is--a vote.

    So, that's the constitution; basically the set of laws all the states agree on.

    Then you have the United States Code, which is basically the law of the government. This doesn't apply to you and me at the state and local level. The reason is it is not in the constitution, and therefore the individual states have to make the laws, according to the constitution. Unfortunately, the government doesn't follow the constitution. This is due to fear.

    You see, one of the first federal laws that really went against the will of the people was prohibition. It was enacted at the federal level with no help from the states. What happened after was a drastic rise in crime. Thus came the need for a federal police force to fight this crime against the federal government. Yes, it happened in that order. The government created the crime, then created a police force to fight it. Since then, there was the depression, which happened because the government shut down all of the businesses. Then they decided they would work FOR the businesses to prevent another depression. Well, then they came up with a great business idea for America! What if we CREATE A WAR and then create a military to fight it. So that's what they did. First, we supplied both sides in the war, just long enough until they were both weakened enough that we could come to the rescue. Oh, and political demands because we had been bombed by the Nipponese. So we fought the war, and it got worse, and we started losing more and more men so we dropped the bomb. Then we decided, hey, let's keep increasing our power, let's make everyone fear this nuclear bomb thing and we can create an even bigger military, and underground bunkers and spies and shit! So they did that. And then it turned out that this fear was not based in reality. The Russians could care less about America. Why would they attack us? For LAND? They have way more land than us. So, anyway, we went on for a few years of bliss, with a quick oil war in Iraq and then they came up with the idea of a new enemy, Terrorists. They didn't come up with the idea actually, it's been popular in literature for a long time. But it makes sense. Make a war, create the industry to fight it,

Some people carve careers, others chisel them.