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.
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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?
The real solution is to write simpler clearer User Agreements, rather than attempting to skin them.