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DU Lawyers - I could use some feedback here.
Feel free to flame, although I would hope that is because I am unaware that what I am proposing has already happened
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Software Engineering methods should be applied to legal practice by arendt
1. The origins of Software Engineering
Software engineering (SWE) arose to improve not only the control over the software production process and its costs, but also to improve the efficiency and reusability of the code produced. One of the earliest successes of SWE was to determined that certain computer-language constructs, such as "go to" statements, almost always led to problems (e.g., "spaghetti code"); so, their usage was strongly deprecated.
SWE was able to make progress because it operates in a tightly constrained linguistic universe. This universe contains only the instructions of a particular computer architecture, and the instructions of operating system functions built to manipulate that architecture. Later, higher level languages abstracted these instructions across a large number of hardware platforms and operating systems, but the fundamental finite-ness of the language remained in place.
To economize on precious hardware, early computer architects ruthlessly limited language constructs. Later, as hardware became cheaper, instructions sets became more complex. But, this was proven to be inefficient in the well-studied "CISC/RISC"* architecture wars. The end result of the co-evolution of these two architectures was to have a RISC core surrounded by a CISC instruction translator, where the relative complexity of these final CISC instructions was much lower than 1970s era CISC instructions.
SWE's seminal contribution was to move computer programming out of the era of pure text, and into the era of graphical representations, graphical interfaces, and, eventually, automatic checking of SWE constructs and references. Although this is obvious in retrospect, at the time, it took some serious argumentation to make the case:
"Can you imagine spending five years' salary on a custom-built house on the basis of an exhaustive narrative description of how the home will be built? No pictures, no plans, no visits to a similar house - just a 150 page narrative. 'The living room, which faces south-southeast, will be 27' x 16' at its greatest width, with the western half taking a trapezoidal form, the west wall being 13'4" long (abutting the northern portion of the east wall of the kitchen)...'
"If you use English to describe a complex system, the result takes up so much space that its hard for the reader to grasp how the parts fit together. Worse than that, English has some built-in problems that make it very difficult to use where precision is needed..."
"Not only but notwithstanding, and/or unless...
"In trying to understand narrative in POLICY DOCUMENTS, memos, and specifications, we continually run up against the variety of possible forms that English allows...
"...as frequently happens, the POLICY STATEMENT involves combinations of conditions..." (these can be expressed precisely via tools such as decision trees, decision tables, if-then-else constructions, etc.)
C. Gane & T. Sarson "Structured Systems Analysis: tools and techniques" pp. 4, 76-7, & 80
SWE created the potential for vastly more reliable software, although the majority of programming organizations today still operate under the myth that really good programmers are only slowed down by SWE. However, with the end of the SWE language wars, and the adoption of the UML standard from Rational Software, SWE seems to have found a standard formalism, and that formalism is being forced upon engineers by management.
2. The legal profession is the ultimate CISC architecture
With the above background, one must ask why the same evolution has not occurred in the legal profession.
By and large, the legal profession has used computers to merely automate a spaghetti code process. The vast literature of precedent has been put into searchable databases; but legal language is still a rats nest of "party of the first part" archaic constructs. Today, these constructs are mainly a barrier to entry for interloping outsiders. One only becomes a legal expert by rote study of fossilized phraseology, previous cases, and glosses of those cases by expert commentators - sort of like Talmud.
The teaching of law still is done by the "case study" method, thereby directly acknowledging the lack of formal rigor in the corpus of legal concepts. This is the downside of English law's over-reliance on precedent, as opposed to statute law.
It is largely due to the precedent system that the judiciary is so clogged with cases. In any action, each side can bring a stack of precedents to court. It is often the case that the side with deeper pockets can overwhelm the system with so many precedents to be studied and considered that the other side's legal team gets beaten by a bad argument they don't have resources to refute. This is no small matter. The 2000 Florida election was decided by applying a law meant to enfranchise minority voters in a manner that effectively disenfranchised them by refusing a recount. This kind of gamesmanship is quite unremarkable in the precedent-based legal system. That makes it no less egregious.
Of course, the whole point of having human judges is to recognize the unique features of each case and to apply the many conflicting laws in a wise manner. I personally think of the border line between legal and illegal behavior as being a fractal. Each case is testing an unknown point of the fractal space, asking whether that new point is inside or outside the fractal boundary of legality. This analogy is appropriate because it was through the study of fractals that mathematicians became aware of how much computing was going on in natural processes, such as mountain formation. The formation of the law is a process that has taken immense amounts of legal computation. A good judge, despite the guild-like methods by which legal knowledge is gained, can apply the results of that computation to correctly place a case vis-a-vis the fractal boundary.
Mathematicians know that creating fractals is a compute-intensive process when you are dealing with a well-defined mathematical space, such as the field of real numbers. Imagine the difficulty of finding a fractal border when you don't have an equation (i.e., statute), but only the status of a couple of neighboring points (i.e., precedents) . Unless you are a good judge, its like stumbling around in a mine-field.
3. The legal profession's backwardness cripples the legislative process
The majority of legislators are lawyers. Yet the Constitution allows legislators to introduce any law they care to draft, whether or not it is obviously bad law. Any bill can become law without any kind of judicial review before the fact. The Constitution grants the power of deciding the legality of these laws to the Judiciary, which decides after the fact of the law existing. The process of finding test cases and appealing to the Supreme Court can take decades. This is like waiting a year to find out the results of one compilation of your computer program. Only instead of merely slowing one programmer down, you are wasting the whole country's time.
This legislative situation has arisen because the precedent law is so complicated that no one can predict the goodness or badness of a law. In fact, obviously bad law, like the Dred Scott decision, has been approved by partisan Supreme Courts.
4. What is to be done?
I doubt that we can dismantle the self-serving chaos, delays, and one-of-a-kind costs of the legal system in the face of the entrenched lawyers' lobby. This lobby fought the lay practice and then the computerization of trivial matters, such as wills and testaments, for decades. They see every clarifying or simplifying improvement to the legal process as a threat to their pocketbooks and priest-like authority. Tort reform would merely limit the scope of the chaos, without changing its nature.
What we can do, however, is rationalize the legislative process, which as already noted can allow even the most specious "law" to be passed.
There is nothing to stop a progressive lawmaker from creating a sensible object-oriented representation for Congressional bills and using it inside his office and staff. Its certainly possible to automatically translate computer-friendly decision tables and the like back into legal boilerplate for submission. My guess is that such back-translations would be as good as anything a lawyer would produce. Except, when the intent of that lawyer is to deliberately introduce loopholes, or bias, or legal booby-traps, or unwarranted advantage into a bill. Unfortunately, such intents abound in today's lobbyist-driven legislative process.
Therefore, the introduction of object-oriented representations for laws must be managed by first-rate legal minds. These lawyers must have as their goals to streamline and speed up the legal process and to give transparency to the legal language. Essentially, they are fighting for a different kind of Sunshine Law. The conventional Sunshine Laws in government merely open discussion. But legal mumbo-jumbo can create a fog so dense as to be impenetrable to mere sunshine.
It is long past time to reduce the complexity of the legal system. Rather than sacrificing the performance of the system by changing it, a correctly engineered object-oriented legal system will improve the performance. As in the RISC/CISC war, complexity will not be completely eliminated; but it will be greatly reduced. Pursuing the analogy, old legal precedents would be able to be translated by a CISC front-end into clear, object-oriented RISC precedents. Such translation would be relatively painless, much as instruction set emulators allow old code to run on new computers.
Finally, lest lawyers fear for their livelihoods, who do you think will eventually be writing the code? The computer profession has had "language lawyers" for decades. These are the guys who argue over the minutiae of what constructs are *legal* in a programming language. Furthermore, it is a tossup whether the public at large finds programming language or legal language more opaque; so no need to worry about deskilling in a RISCified legal profession.
Hello, lawyers, cluephone calling! My personal opinion is that the legal profession is missing a major revenue source here. I thought that might get your attention.
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* Complex Instruction Set Computer / Reduced Instruction Set Computer
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