I suspect this is actually a legal nightmare. What happens when the informal summary actually fails to capture some legal subtlety embodied in the legalese? Which have I agreed to? What happens when a company (deliberately, perhaps) musrepresents the meaning of the legalese in the summary.
The real solution is to write simpler clearer User Agreements, rather than attempting to skin them.
Creative Commons takes the same approach. Each license comes with a "Deed", which is a human-readable summary of the full legal code of the license. A disclaimer points out that the text of the deed has no legal value.
Given that CC was started and is run by lawyers, I doubt they would shoot themselves in the foot like this if they thought it would cause problems.
Absolutely. I tried to get a US-based lawyer to agree that we could set our terms of use out like this and he strongly recommended against it. His main argument was that whatever we wrote in the 'plain English' would be just as minding as the main body of the terms and, since the plain English section was invariably less rigorous in its specifications, we risked weakening the terms.
It is a potential legal problem, but not a nightmare. The solution can be fairly simple: include a clause that says that the "legalese" is the contract, and the summary is not. You could even summarize that contract in non-legalese, saying, "Pay attention to the main text, not to this summary column; the real legal action is over there."
Exactly. If the plain English is in fact the same as the legalese, then the legalese can be dropped. But it isn't, because there are (presumably) important subtleties.
You still have to read both, and understand the legalese.
"The real solution is to write simpler clearer User Agreements"
It isn't so much that legalese is a separate language with its own subtleties; it is just that it is language with predictable effects in courts. Think of contract language as code, except the only time you get to run it through a debugger is when someone sues. Only then do you get to find out whether your code runs as intended, i.e. whether a judge interprets it to have the effect you intended. Once language is proven to have a certain effect, lawyers like to re-use that language in the sometimes naive belief that it will always be given that meaning. The tradeoff here is that the language can be difficult for laypeople to understand, especially as usages change. Some of the most notorious legalisms are redundancies, like "free and clear," that according to some scholars date back to the Norman conquest, when contracts were written simultaneously in two languages (free being Germanic, clear being Latinate).
There is another comparison here: recall how Joel Spolsky criticized the Netscape team for throwing out their old code and starting over? Lawyers can make the exact same criticism about people who want to disregard legalese.
I like your comparison! But justice should protect us, while everything here has no bound checks... Instead of having it in a high level language, we have some old cobol (it works!) here and we must pay specialists for $$ to decipher it...
There is a burgeoning "agile" movement amongst some (albeit very few) lawyers to improve things.
I wrote this rant about it a while back about how lawyers really should learn a bit from the agile movement that has so revolutionized the startup world:
Under 25 CFR §1.4(b), the Secretary of the Interior may in specific cases or in specific geographic areas, adopt or make applicable to off-reservation Indian lands all or any part of such laws, ordinances, codes, resolutions, rules or other regulations of the State and political subdivisions in which the land is located as the Secretary shall determine to be in the best interest of the Indian owner or owners in achieving the highest and best use of such property.
After
Section 1.4(b) of 25 CFR allows us to make State or local laws or regulations apply to your off-reservation lands. We will do this only if we find that it will help you to achieve the highest and best use of your lands.
If the point of the legalese is to have a predictable effect in court based on a previous legal interpretation, how is it fair to expect me to "read, understand and agree to" the legalese when I don't have lawyerly training to have studied all the relevant previous interpretations I am agreeing to?
I'm not sure I like this. Let's suppose that this does become standard practice.
Now we could end up in a situation where users and corporations disagree on the wording in the terms of service, or about definitions of terms.
As a simple example, let's use Apple's Itunes "software updates" that attempts to push safari onto my machine.
Now lets suppose they add into the terms of service that if you use itunes, they can use this updater to add safari without your permission.
In legalese it might read something like "add or update installed or new programs onto your device" while in english it may read "Installs software updates automatically."
I'm not saying Apple would do something like this, or that this article and company it uses as an example has such intentions - but this is how I would abuse the system if it became widespread, and if I wanted to abuse it.
I do think it would be better to have terms of service that users actually read - and in fact, I would assume many terms of service do start of being readable and understandable. However, in the end its about CYA (covering your ass) and for that reason I think it's best to have everything spelled out. Perhaps the summaries would be useful though to draw attention to what is discussed in each section ,as it it in the example provided, so that I know exactly where the privacy information is, I can quickly see where the SLA is, etc.
I've seen this type of thing a couple of times before. Sometimes it works better than others. The best example I've seen is just little italicized blurbs marked (intent) before each barrage of law-speak. There was, of course, a sizable disclaimer about how the italicized parts were not legally binding yadda-yadda. It was on a car rental contract of all places.
Its kind of like comments on code, so that if the legal code doesn't run correctly on the courthouse hardware, everyone can at least tell what the programmer was trying to do.
The right solution is to go back and clean up 400 years of worthless cruft that's built up in the legal system that makes law documents quite literally another language, with the added confusion that it borrows words from a familiar one but assigns them new meanings and connotations. I was always of the opinion that if I should be required to follow an agreement, then I should be reasonably expected to be able to read it myself.
I read somewhere that Steve Jobs tore up a long contract and demanded a new one that was one page long if the other party wanted to do business with Apple. Lots of people demanding such contracts are the only way things will change.
I can't imagine this happening, though, as lawyers would need to write these contracts and greatly simplifying contracts would probably put many of them out of a job.
In addition, many people with their shorter contracts would be shocked when a judge rules against their interpretation of the contract, and others will complicate their contracts to prevent the same thing happening to them. This is likely the process that led to the contracts we have now. Legalese is not intended to be clear and expressive, but as a kind of adversarial form of communication.
IANAL, but I think many of them write complicated contracts mostly in an effort to protect their clients. Simple contracts may not include verbiage that has survived court challenges.
I'm not trying to defend the system, just pointing out that lawyers aren't necessarily trying to do anything but make the system work for their clients -- which is what they got hired to do. If we want simpler language, we need legal decisions that will back it up.
This is a myth. Most contracts are not even written down and are perfectly legal.
For example if you're in a restaurant and order food you have accepted a contract to pay for that food once you finish. The contract does not include any legalese it isn't even written down, yet is just as valid if not more so as any 100 page document filled with legalese.
If this is so you can also write it in plain English. Anything that can be written in legalese can almost always be rewritten in more concise plain readable English.
That's the cruft I'm speaking of. The courts are almost slaves to precedent, no matter how bogus that precedent might be. Every time some high-moneyed legal team rams through some bogus bit of jargon, it appends itself verbatim to all of the contracts after that, almost like a macro, or worse, a virus.
Like our own dna, over the years the simple genomes get loaded down with crap that has nothing whatsoever to do with the creature but replicates nonetheless.
I just don't understand how come legalese can't be replaced with some kind of mathematical formal system? A few lawyers I shared this view with laughed at me, but after some digging I realized that was because they lacked a proper training and believed that English was more expressive than Math. Wrong: math is the language that describes the world around us, surely it can be used to describe their stupid laws, which can't even approach the laws of nature in complexity.
Sure such language won't be readable by regular folks, but that's not the point. Such "mathematized legalese" would be made readable by computers and translated into all sorts of usable applications: for instance you can do almost automatic "legislation simulation" without even going to a court room: given two theorems (legal agreements) and variable bindings (facts) a computer (judge) could estimate your chances of winning without wasting a single dollar on lawyers.
Am I an idiot because I see nothing wrong with this?
Laws have varying degrees of clarity. Laws about what side of the road you must drive your car on are clear. Others aren't. Consider the FTC Act: "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful." Turning that into mathematical language would not be useful, because all the work is being done by one, largely undefined, word: "unfair." Courts have, over time, given a rich and complex meaning to that word. In English.
Some law is already formalized, enough so that it can be, and has been, translated into software code. TurboTax is a good example of this; it doesn't capture the entire tax code, and it apparently doesn't get everything right (ask Timothy Geithner), but it does dramatically illustrate the extent to which the tax code is determinate. (Self-plug: the U.S. federal sentencing guidelines are also highly determinate, although actual sentences are not, and a web site I run lets lawyers calculate these sentences).
If you are interested in this area, take a look at XBRL, an XML dialect used by financial institutions to make some legally required reports in a highly formalized manner.
Such a system would be particularly valuable for the European Union. The EU has over 20 official languages, and all legislation approved by the EU needs to be translated into all of the languages. (The situation is further complicated by several categories of laws: EU regulations are practically equal to federal laws, whereas EU directives are "law blueprints" that must be translated into national law, thus giving member states some leeway on how to implement them.)
I don't know exactly how EU lawmaking works (nor do I really want to know too much about what goes on in that monstrous Brussels/Strasbourg sausage factory), but I'd presume that the law drafts are most commonly worked out in English and French. A final document is then produced in either of these dominant languages, but it's written in a specific form to make it easier to translate into 20+ languages without catastrophic signal loss.
Your system could replace that subset of English or French... And it might actually be fairly easily accepted by EU officials because it would offer a scientific, seemingly objective solution to the perennial problem of what language the EU itself speaks (currently the situation is rather close to "all EU languages are equal, but some are more equal than others").
Translate a nation's entire legal code into your system. Pick a bunch of cases in the sub-domain of law you want to tackle first. Find a way to model the evidence and agreed upon facts of the case (I'm guessing this will be especially difficult). Run your system on the translated laws and information on each case, then compare the results to how the court actually ruled.
If you were able to predict outcomes with high accuracy, you would have an extremely valuable tool and can retire soon if you market it effectively.
The gist of it - What the Maori's thought they signed - and what the English thought they signed - were two different documents.
"The English and Māori versions differ. This has made it difficult to interpret the Treaty and continues to undermine its effect. The most critical difference revolves around the interpretation of three Māori words: kāwanatanga (governorship), which is ceded to the Queen in the first article; rangatiratanga (chieftainship) which is retained by the chiefs in the second; and taonga (property or valued possessions), which the chiefs are guaranteed ownership and control of, also in the second article. Few Māori had good understanding of either sovereignty or "governorship", as understood by 19th century Europeans, and so some academics, such as Moana Jackson, question whether Māori fully understood that they were ceding sovereignty to the British Crown."
As many of the commenters pointed out the summary becomes a part of the agreement. I think it would even trump the legalese if there is some inconsistency between them.
What people fail to understand is that the contract/agreement itself is not the written text. Rather it is a legally binding relationship between 2 or more parties.
The better each party understands the terms and duties the less likely disputes are going to happen.
Legalese is a kind of legal FUD, which sometimes works and sometimes doesn't. Unfortunately most people are still scared of changing it.
All those legalese clauses you see in most agreements can be trumped by plain English or actually even common sense. The common law contract system allows judges to invalidate extremely unfair terms based on common sense and common practice as it requires both parties to perform some sort of equal exchange for a contract to be valid.
I believe that a well written plain language contract is a lot less likely to have disputes. I also believe that judges like the rest of us are perfectly able to read English as well, so I can only conclude that legalese is FUD.
See these two posts to learn more about how contracts work:
If you are interested in the history of legalese I warmly recommend the book http://www.partyofthefirstpart.com/ which is probably the funniest legal book I have ever read.
I'm on a bit of a crusade against legalese myself and at http://agree2.com we've tried to write our user agreement in plain english. We had it for public review last year (http://blog.extraeagle.com/2008/05/20/public-review-of-agree...) during a major rewrite and even allow you to propose changes to it during your signup.
Both summary and legalese become the contract. Courts look within the four corners of the document for the terms, wherever they may be. Other terms are implied by statute and case law. Still more terms are implied by 1) custom and usage in the industry, and 2) course of past dealing between the parties.
And the mathematical version of the law brings up many issues. The law is actually pretty mathematical. Non-lawyers may not know this, but legal standards follow strict standards whenever possible.
Here is an example: Plaintiff brings discrimination suit based on US Constitutional equal protection claims. Is the Defendant the Federal Government? If yes, you sue under the 5th Amendment. Is the Defendant a State? If yes, you sue under the 14th Amendment. Is the Defendant neither, and this case doesn't fit into a limited exception that I haven't listed here for clarity? If yes to both, then you can't sue based on the US Constitution. It is that simple.
Continuing the example (assuming you are suing the Feds or a State. Also, I am leaving out corner cases): Is the suit based on Race, Alienage, or National Orgin? If so, strict scrutiny applies. Is the suit based on gender? If so, then intermediate scrutiny applies. All other claims are analyzed based on rational basis. Now there are some terms of art that need to be defined there. But they are pretty easy to understand.
Perhaps the main reason the mathematical legal system won't happen is that courts only decide the issue at hand. The math system will require a programmer to enter an outcome based on the applicable laws and facts ahead of time. But every case is an example where the court hasn't yet ruled on these unique facts applied to the laws. That is why the case is heard and not dismissed, tossed via summary judgment or a directed verdict. If the exact same facts and exact same law is applied, the verdict is mechanical. Trial lawyers make their money when that isn't the case.
This might make a contract more expensive to develop but if courts started holding these sorts of contracts in higher regard, perhaps it would justify the cost. I'm not a lawyer but intuitively it seems that if a contract has a big summary that says "we're allowed to eat your baby", it will more likely withstand a challenge than one that hides that clause in page 30. No one could claim they weren't aware of that clause.
The real solution is to write simpler clearer User Agreements, rather than attempting to skin them.