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.

Comments

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?

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.

Re:Good idea ...

[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 poster!

Re:Good idea ...

[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 does it mean, "Thou shalt not kill anyone, ever." (Consistent with the "turn the other cheek" policy of Jesus.) Interpreting the intent of the law in context of the rest of the Bible provides a doctrine of "Thou shalt not murder". Similar to how lawmakers look for intent in the law when faced with an unforeseen situation, then attempt to set doctrine based on that intent.

Re:Good idea ...

[billcopc]

Simple: make the test cases LAW.

If X then Guilty, else !Guilty.

The big problem with law is the human aspect: different people interpret things differently, and that's why lawyers get paid tons of money to be anal-retentive pricks. They pick one side, not necessarily caring whether it's "right" or "wrong", and defend that side to the death, making up arguments as they go along. It's all about convincing people, and that's why some blatantly absurd stuff gets away while harmless people get fined and jailed. It's just a big game of spin.

Take the spin out of the law, and people will freak out at first, but at least we'll be able to tell with certainly what flies and what doesn't. People will push to the edge of the law, and stop. Those who don't, we throw away.

Re:Good idea ...

[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 in any case, those details should probably not be entrenched in the constitution but described in normal law. One would think that once you got down to very detailed criminal code things would be much clearer.

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, If you want to talk revisionist interpretation, you're a stellar example. It goes against everything the 9th amendment says both in words and in meaning: "The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people." Despite not being enumerated, the people may have a right to privacy that the government can not infringe upon. Under no circumstance should the bill of rights be considered final or complete.

Re:Good idea ...

[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.

Re:Good idea ...

[thechao]

"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)."

It certainly does, they're called the "9th" and "10th" amendments, although I prefer "forgotten and ignored".

Re:Good idea ...

[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 law.

Think of it this way in terms of contracts: contracts are written down so it is understood what the parties agreed to. If the meaning of the contract can change over time based on who reads it then the whole point and premise of writing it down is lost. The only way to maintain a contract's validity is to interpret based on the meaning of when it was written down. Ditto for the constitution.

The legislative branch writes laws that are clearly unconstitutional. The executive branch ignores the constitution. The judicial case law has basically cut holes out of the constitution. The concept of a written constitution works if you have a branch of government that respects it and interprets it according to the original meaning. The fact that we have deviated so much from the constitution is proof enough to me that Jefferson was right when he said "because law is often but the tyrant's will, and always so when it violates the rights of the individual." When the president can snoop on anyone's phone conversation in the name of "anti-terrorism" it violates your rights and is an action of a tyrant.

Nowhere in the constitution does it provide a "right" to privacy...

This thinking is why our constitution has basically been shit upon. The constitution is a restriction upon the government, not the people. You have every right you can possibly think of (wear a hat or not, go to bed @ 10pm or not, wear white after labor day or not, etc.) and you only "give up" certain rights for the protection of your liberty. For example, you give up the right to enforce law because if you could then you act as the judge, jury, and "executioner" and the defendant is no longer presumed innocent when your emotions take hold of your reasoning. So you have every right to privacy by virtue of being human except those parts you give up to protect the rest of your liberty or willingly give up (no different than any other right).

Your reasoning about privacy is precisely what I think is wrong with this country (but I don't blame you, I blame the politician of past and present) and why I'm a strong supporter of Ron Paul in either congress or presidency.

Re:Good idea ...

[Anonymous Coward]

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.

Well, it's a logical conclusion: if the state sanctions an exercise of religion during the business of the state, then it has effectively created an establishment of religion. The anti-establishment clause was to prevent ANY religious establishment, not just a single state church.

The right to privacy is less clear. Roe v. Wade, on the other hand, did not rest entirely on privacy, but the majority opinion in this 7-2 decision (yes, it wasn't even close) also referenced the equal protection clause of the 14th amendment.

Re:Good idea ...

[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 with public safety, etc...

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.)

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!)

It also says that this is because "a well regulated Militia [is] necessary to the security of a free State." Which some have interpreted as meaning this right only exists to allow for what today is the National Guard. It's been interpreted broadly so we can all own guns. (Which I'm not suggesting is entirely off the mark either, since the right is explicitly granted to "the people," an intentionally broad term. Still, why did the framers bother to include the militia clause, considering that our present interpretation makes it meaningless?)

What good is the damn document if in 20 or 50 years it will mean something entirely different?

Writing law more simply and clearly would make our ability to interpret it decades hence a lot easier. As it stands today the average citizen can't easily read and understand most laws. Personally my eyes glaze over, and not because the subject matter itself is boring.

Re:Good idea ...

[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

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).

Re:Good idea ...

[BigRedFed]

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).
No where in the constitution are you PROVIDED any rights. The document lists rights that are to be protected. And since you know you amendments so well, you should also know the 10th amendment which says that the rights listed in the first eight amendments does not mean that you only have those rights listed. The right to privacy is inherent in being a human and and extends from your ownership of your mind, your body and your self as does every other right we hold dear. If you do not understand this, then you will continue to allow the Constitution to be misread and subverted.

Re:Good idea ...

[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 Incompleteness, but it fits in some cases to the TFA...

There will always be exceptions to the laws where there are outright contradictions. Throw in a bunch of PACs, SIGs, pork belly projects, enthusiastic junior legislators, corruption and what not, then it is inevitable that the laws will morph from their original intent. It's impossible for them to be static. Mix in the fact that laws are more easily passed than repealed and we end up with the situation today.

Re:Good idea ...

[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 deny to any person within its jurisdiction the equal protection of the laws.".

This is also why I hate Ron Paul; he wants to roll things back so state governments are explicitly allowed to violate the 1st Amendment again. Rather than repeal the 14th Amendment, Paul wants to ban the Supreme Court from ruling on 1st Amendment-related issues involving state laws.

Re:Good idea ...

[Hotawa Hawk-eye]

You're assuming the test cases are themselves unambiguous and can't be twisted. For instance, let's take a test case: X is "you strike someone with your car and they die." Sounds reasonably straightforward, doesn't it?

Does that include the case where you strike someone with your truck? How about a motor home? A motorcycle? An SUV? Do those fall into the category "car"?

What if you strike someone else's car, pushing them into a person, and that person dies. Is the person you hit the Guilty party, even if they were obeying the letter and spirit of the law?

What if the person that you struck wanted to commit suicide and threw themselves in front of your car giving you no time to avoid them. Are you Guilty or !Guilty?

How long can pass between the first part of the clause, "you strike someone with your car", and the second "they die"? Let's say you strike someone with your car and they recover, then five years down the line they die from causes unrelated to you striking them with your car. Are you still Guilty? After all, you struck them with your car and they died ... the test case wasn't written unambiguously, and doing so (if it's even possible) would probably make the test case (or test cases, since once it gets too big you're going to want to break it into smaller tests) longer than the law it was designed to test!

Re:Good idea ...

[Estanislao Mart�nez]

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.

A few things:

1. I'm not sure that you and GP are using the term "consistent" in the same way. I think by "consistent" you mean that the law will be free of contradictions. I think what GP was questioning was the assumption that various interpreters, or the same interpreter at various times, will interpret the law in the same way.
2. The more elaborately you define something, actually, the more likely you are to introduce a logical inconsistency, either within the definition itself, or between it and some other assumption you've made elsewhere. (Unless by "thoroughly" you mean something that presupposes that you'll be logically consistent, in which case the whole statement smacks of circularity.)
3. Typically, by the time that problems are discovered with a law, it is too late to amend, because the discovery arises in the context of its application to a case at hand. What do we do when, in the process of judging whether Joe committed some specific crime, discover a flaw in the relevant statute that would make him guilty? Do we find him guilty, sentence him to prison, and then amend the law (and do we free him retroactively? and what if the amended version has an error that requires us to free people who were rightly imprisoned)? Or do we leave him in a legal limbo while the legislature amends the law?
4. The law isn't the same thing as statutes. Learn the difference.

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.

Yup, it could have been expressed in more detail. The problem is that it would quite likely not have been ratified, in that case.

Re:Good idea ...

[MasterC]

What makes you think that the legislative branch writes laws?

Of all that I wrote and you nitpick over "write"? I sum up the job of thousands politicians (plus their staffs) for over 200 years in two words and you nitpick? I talk of constitutional law and grand theory of interpretation...and you nitpick on a two-word summarization?

It doesn't matter who writes the law when you talk of how to interpret the law. Does the python interpreter care who wrote the foo.py? Is there a special interpreting mode for Guido or you? HELL NO!

The overwhelmingly evident premise of my post was how to interpret law, or rather how it should be interpreted. It was not a dissertation on how a law is written because if your method of interpreting law is flawed then it doesn't matter who writes it. Period.

Re:Good idea ...

[Estanislao Mart�nez]

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.

So what makes you think that we'll be able to figure out accurately the nuances of English from 225 years ago? And more importantly, what makes you think that the "meaning" of those laws can be definitely fixed by appeal to that criterion? Do you think that the people who approved the laws didn't disagree among themselves about what those laws meant, at any point?

There are many common phrases from many years ago that people currently misunderstand, for example, "one nation under God". So we will most certainly need experts in a specialized field to read laws. (Hey, don't we have those already?) And those experts will be fallible, and will often disagree about how to read a text.

Think of it this way in terms of contracts: contracts are written down so it is understood what the parties agreed to. If the meaning of the contract can change over time based on who reads it then the whole point and premise of writing it down is lost. The only way to maintain a contract's validity is to interpret based on the meaning of when it was written down.

The problem here is that no document can fix its own meaning, no matter how carefully you write it or read it. Therefore all your talk about the "meaning" of a contract or of the constitution begs the question that it had a fixed meaning when it was written down. How can a contract or a law have a meaning beyond the concrete applications that are made of it? (This is all Wittgenstein 101, applied to law...)

Re:Good idea ...

[DougWebb]

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).

You've got that backwards. The 10th Amendment, http://www.usconstitution.net/xconst_Am10.html, affirms that all rights which aren't discussed elsewhere in the Constitution belong to the people. The Constitution is a list of the rights and powers of the government, giving the government a limited authority over the natural rights of the people. It is not a list of the people's rights granted by the government.

Re:Good idea ...

[ObsessiveMathsFreak]

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!)

It also states that "A well regulated Militia, being necessary to the security of a free State, ....". True the entire sentence makes little sense, but it is clear to me that your right to bear arms depends on your being part of a "militia", and on the "security of a free State". Yet I've never heard anyone demand those conditions. Why? Because the law is deliberately ambiguously worded so that it is flexible enough to fit a variety of current, and future, situations.

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).

Your constitution has another amendment which is rather explicit:

"The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people."
It recognises that the people have their own intrinsic rights which are not explicitly mentioned in it, and that these rights, which the vast majority would place their privacy in and many would place abortion in. Again, this is to ensure that the law is adaptable and important rights need not be mentioned in the constitution, or the law, in order for people to be free to exercise them. Take as a concrete example, the right to urinate and defecate (sometime simultaniously!).

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"?

A lot better than one which becomes outdated and disliked by the people. The constitution of Ireland provides some good examples of constitutional articles which were too specific to their time and place.

The constitution as it was originally written gave a "special position" to the Catholic Church, which was practically all powerful in the country at the time. As time wore on, less and less people thought this was a good idea, and so the article in question had to be removed in a referendum. (Unfortunately the section proclaiming "The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion." was not removed, which doesn't sound good if your not an Irish Monotheist, or possibly an Irish Muslim. We'll probably have a second referendum at some point to change that too.)

The constitution also prohibited divorce. Yes that's right. The Irish constitution prohibited divorce. We had to have another referendum to change that too.

At the time it was written, the constitution also laid Irish (Republic of) claim to Northern Ireland. Quite specific claim in fact. As time went on, this became an ever greater impossibility and, long story short, we had to have a referendum to change that.

More pertinent to the current debate is the amendment introduced in 1983 which explicitly prohibited abortion. This is probably the one that the wider world knows most about, as we later had a rather internationally high profile referendum looking to strengthen this amendment. Most Irish people however, will remember this amendment as the one that caused the

Re:Good idea ...

[Relic of the Future]

Complete, concise, consistent: pick two.

Re:Good idea ...

[z80kid]

Which part of that says that restrictions on Congressional power are now restrictions on state power?

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"

So a state imposing speech regulations is abridging "Congress shall make no law..."

Hardly.

This amendment has been turned on its head almost as much as the Interstate commerce clause (which is often combined with chaos theory to show that everything will eventually impact somebody buying something from out of state).

Re:Good idea ...

[JPStroud]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The so called "right to privacy," is a generalization of the 4th Amendment. Your "right" is with regards to the government, not the guy with binoculars in the apartment complex next door...

Re:Good idea ...

[Spacepup]

If laws were written like software, wouldn't it follow that the legal system would mysteriously and suddenly crash with an obscure message at least a few times a week?

Re:Good idea ...

[Libertarian001]

You started off making a few nice examples, all of which are easily explained. It comes down to the courts performing a balancing test between the conflicting ideas. Not really ideal and probably not really what you're looking for.

Where you lose it is that "right to privacy" non-sense. The Constitution does not grant rights to people; it limits the power of government. See the 10th Amendment.

Re:Good idea ...

[complete loony]

If you really want to treat laws like software, create a strict legal language, with a strict syntax and precedence rules. Build a virtual machine that can evaluate the law and determine which rules should ally to a given situation. A good testing framework would be required with a way to evaluate if the full impact of the laws is understood, and how the laws apply to the common man.

The role of a judge would then be to evaluate if each condition actually applies to this case. However you are not going to eliminate ambiguity completely. Judges should always be allowed to rule on compassionate grounds, or apply their own common sense to test the law further. When a judge makes a ruling that is contradictory to the existing law or applies to a case not previously tested, a new test case should be added explaining under what conditions his interpretation should hold.

If legislators see that judges are interpreting the law differently they may ammend the legislation to pass the tests that the judges have added.

In a way this is exactly what the legal system should already be doing.

Re:Good idea ...

[cpt kangarooski]

Which part of that says that restrictions on Congressional power are now restrictions on state power?

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"

Not that part. The privileges and immunities clause was basically killed off in the Slaughter-House Cases in the late 19th century, and hasn't amounted to anything since. The main working part of the 14th Amendment is the due process clause, closely followed by the equal protection clause.

It's the due process clause that is relevant here:

[N]or shall any State deprive any person of life, liberty, or property, without due process of law.

The Supreme Court found that many of the rights protected in the First through Eighth Amendments are among the liberties mentioned in the due process clause. Thus, no state can infringe on those liberties without due process. In effect, then, those amendments become applicable to the states. This is known as 'incorporation.'

For various reasons, it's occurred in a piecemeal fashion. Rather than just decide that all of those rights are incorporated by the 14th Amendment, the courts have only found certain rights to, as needed. Of course, very nearly all of them have been incorporated by now, but there's still some holdouts of varying importance. Wikipedia has a decent list.

And of course, there is evidence indicating that the framers of the 14th Amendment deliberately wanted incorporation, so I'd hardly say that it's a total fabrication of the courts.

Re:Good idea ...

[dotancohen]

It would be difficult for us carnivores to eat should we not kill. The Original Testament commands "Do not murder", not "Do not kill". Jesus' recommendation that one "turn the other cheek" was a good 1000 years after God's "do not murder" commandment. So I think that the intent here is clear.

Re:Good idea ...

[AKAImBatman]

It would be difficult for us carnivores to eat should we not kill.

Only if your diet consists of soylent green. One thing that is not argued about is that the "kill" or "murder" part refers to humans.

Oh, and we're omnivores. We're perfectly capable of living without meat in our diet, though it's not ideal under most circumstances.

 

Jesus' recommendation that one "turn the other cheek" was a good 1000 years after God's "do not murder" commandment.

Thus the reading in context. Reading out of context results in many a discussion about the Biblical justification for self-defense and/or war.

Re:Good idea ...

[Shadowlore]

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).

The US Constitution was never intended to be a list of rights. It was to be a limitation on government, not we the people. Does the constitution say it lists all the rights you have? No. Does it say the government has the power to invade your privacy and take it away on a whim? No. Thus, do you have a right to privacy? Absolutely.

The constitution does not, and was never intended to, grant people rights. Only to limit government powers. How can we know this? We can read the debates from the time. Those who objected to what later became the "Bill of Rights" objected to them based on the knowledge that you can not list all of them and to list some of them implies you've defined them.

It isn't a matter of interpretation, it's a matter of reading and understanding.

Re:Good idea ...

[mikeinwa]

How do we stop them from becoming obsolete in the next 20 or 50 years? Simple, we keep applying the same principles. Software testing works for this too! Smoke testing, new test cases, etc.

Re:Good idea ...

[vuffi_raa]

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"? this statement totally disregards our entire legislative system- the congress has it's powers of legislation laid out in article I and among those is "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."
This means that the legislature has the powers to make laws in accordance with the constitution. there is nowhere in the constitution (and I argued about someone with this before) that says "no topics not specifically written in this document may be ruled upon", nor does it say anywhere that "local laws must be written and ratified as an amendment to this document to be legal". Face facts, if every single law was written as an amendment to the constitution it would not be a document, it would be a library and it would take a million people to sort it out.
do I think that it is perfect? hell no.
but I think that the problem in the end is that there is little to no understanding by the legislative branch about the laws that they are passing and/or writing. I completely agree with what "Bennett Haselton" has to say about vagueness, but conflicting laws are just as bad.
when it comes down to it the constitution is and always will be a framework, and it was intended as such.

Re:Good idea ...

[dotancohen]

One thing that is not argued about is that the "kill" or "murder" part refers to humans. I was unaware that anyone could ever think that the commandment was "do not kill" instead of "do not murder". At least in Hebrew, we have absolutely no confusion.

Thus the reading in context. Reading out of context results in many a discussion about the Biblical justification for self-defense and/or war. Reading (and quoting) out of context is very popular for those who wish to wage war.

Re:Good idea ...

[AKAImBatman]

I was unaware that anyone could ever think that the commandment was "do not kill" instead of "do not murder". At least in Hebrew, we have absolutely no confusion.

Agreed. The commandment was actually pretty clear in the original Hebrew. What caused confusion was the King James translation into "Thou shalt not kill", an Old English translation that loses some of its meaning in modern English. Since the majority of Christians are not Hebrew speakers, the exact meaning of the commandment became widely debated.

Re:Good idea ...

[billcopc]

I'd like to appoint you as a test-case writer. That's exactly the kind of questions that should be asked, answered, and written down for the lesser minds to absorb.

Part of the problem with the law, is its underlying language. Laws are purposely kept in their cryptic archaic english forms, expressly to give more leeway to the lawyers that profit from the aberration of meaning. It's kind of like the various bibles... they all say more or less the same thing, but they've all been tainted through the "magic" of translation and skilled orators can ply the verses to their will. Jesus / no Jesus, whores / no whores, miracles / no miracles... Guilty / not guilty.

Eliminate the gray areas of the law, and we'll see the resale value of BMWs and Benz' plummet as the snarky word-warpers scamper. We'll also see a more faithful representation of societal ideals in courts and in the news.

Re:Good idea ...

[z80kid]

The Supreme Court found that many of the rights protected in the First through Eighth Amendments are among the liberties mentioned in the due process clause.

I appreciate your insight, as no one has ever attempted to explain this to me beyond simply saying "14th amendment".

However, reading the wording it still sounds like another fabrication of the courts.

[N]or shall any State deprive any person of life, liberty, or property, without due process of law.

This simply seems to be reiterating rights found elsewhere - that the state cannot deprive you of these things without your day in court. The logic you've outlined seems to indicate that the courts have ruled like this:

1. The first amendment prohibits Congress from establishing a religion.
2. This implies a "liberty from religion" on the part of the people.
3. The 14th amendment says the state can't deprive you of a liberty, so
4. The first amendment applies to the state.

I'm not endorsing state religion here (and most state constitutions do protect against this). I'm just saying that the legal basis for the conclusion in (4) is a sham, and it's the same kind of whimsical logic that has allowed the courts to pretty much rewrite the Constitution to suit their whims.

Re:Good idea ...

[cpt kangarooski]

This simply seems to be reiterating rights found elsewhere - that the state cannot deprive you of these things without your day in court.

Well, actually you've described procedural due process; that there there has to be a fair method that the state has to go through if it is going to infringe on your life, liberty, or property.

However, there is also substantive due process (in both the 5th and 14th Amendment due process clauses; the former is the one that applies to the federal government); this is that the more important the thing is that they're trying to take away, the more important their reason for doing so has to be, and the more the means they choose to advance that reason have to actually advance it without being excessive. So, for example, if the government wants to imprison you for life because you jaywalked, and jaywalking is bad, even if they can't really show why it is bad, or what bad things would happen if they allowed jaywalking, then a court would rule against them. After all, it's not merely good enough to have a fair process for dispensing justice, but there has to be actual justice, rather than unjust punishments, laws, etc.

Substantive due process, then, has to identify various liberties (since that's usually what these cases involve) and determine just how important they are, and therefore just how important of a reason the government can have for infringing on them. Your right to have a child is more important, for example, than your right to litter. The government would have a very hard time arguing why you couldn't be allowed to have a child, but could quite easily show why they should be allowed to make a law against littering.

Incorporation builds on this logic. If due process requires that the states not unduly infringe on peoples' liberties, and some liberties have a lower bar for what constitutes undue infringement, then quite probably the liberties that were important enough to be mentioned in the Bill of Rights are pretty high up there. It's not precisely like this, but this is basically how you arrive at the idea of incorporation.

Anyway, if you still think that incorporation is a sham -- despite having been around for a long while, and pretty likely having been the intent of the framers of the 14th Amendment to begin with -- could you say why, instead of just asserting that it is?

Re:Good idea ...

[z80kid]

Anyway, if you still think that incorporation is a sham -- despite having been around for a long while, and pretty likely having been the intent of the framers of the 14th Amendment to begin with -- could you say why, instead of just asserting that it is?

I'm afraid that I already have - at least to the best of my ability. But I'll try to elaborate -

The Constitution is very specific as to what limitations apply to what parties, addressing "the Congress" and "the people". It specifically mentions things that the feds can do that the states cannot. In other cases, it limits the feds without limiting the states. In some cases it is open ended and limits both. For example:

After all, it's not merely good enough to have a fair process for dispensing justice, but there has to be actual justice, rather than unjust punishments, laws, etc

This is covered by the eighth amendment - not by "incorporation". The eighth amendment is open-ended: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." This limit applies to any governing body under the constitution - both federal and state.

As for why "incorporation" is a sham - you are asking me to explain why I think the Constitution doesn't say what it clearly doesn't say. I can't. Previously in this thread, I asked where the Constitution explicitly says that powers denied the feds were now denied to the states. You explained "incorporation" as a set of judicial principles surrounding the 14th amendment, and I appreciate that. But those judicial principles still don't change the meaning of the words that the states ratified.

[N]or shall any State deprive any person of life, liberty, or property, without due process of law.

I can't explain why this does not say that powers denied the feds are now denied to the states any more than I can explain why it does not enshrine a right to free jelly doughnuts. I can explain what it does say (affirms of the right to jury trial and legal representation in state matters). But what isn't there just isn't there.

Re:Good idea ...

[cpt kangarooski]

The Constitution is very specific as to what limitations apply to what parties, addressing "the Congress" and "the people".

Yes, although these are subject to later amendment. Just because the First Amendment deals with the federal government, that doesn't mean that the Fourteenth can't say that it also applies to the states.

This is covered by the eighth amendment - not by "incorporation". The eighth amendment is open-ended: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." This limit applies to any governing body under the constitution - both federal and state.

Actually, that didn't apply to the states, and was ultimately incorporated. Remember that at the time the Bill of Rights was written, it wasn't interpreted as being binding on the states.

I asked where the Constitution explicitly says

Well, there's your problem. The Constitution doesn't explicitly say all that much. We have to read a lot into it to make it work. For example, does the First Amendment guarantee that the federal government will not prohibit people from reading? It doesn't explicitly say so (and the Ninth Amendment doesn't guarantee any rights, it just says that they may exist) but since the right to a free press would be quite meaningless if the government allowed anything to be printed, but prohibited any of it from being read, there must be an implied First Amendment right to read.

I can explain what it does say (affirms of the right to jury trial and legal representation in state matters). But what isn't there just isn't there.

Actually, you can have due process without necessarily having those things. Don't go claiming that it says something other than what is explicit, now. But what makes you think that substantive due process doesn't exist? Why do you think that (most of) the rights in the Bill of Rights do not fall under 'liberty.'

Don't you know . . .

[arizwebfoot]

Logical Government is a oxymoron?

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.

Wait

[Anonymous Coward]

If laws are drawn up this way, how are policy-makers supposed to exploit them for personal gain?

If you call him "Frequent Slashdot Contributor"

[everphilski]

... could you please give him his own ID to post under so we could filter out his bullshit along with the likes of kdawson, etc? Thanks.

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:Time constraints

[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:Time constraints

[techpawn]

can think of no law that needs to be passed quickly

Not a one huh?

Re:Time constraints

[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:Time constraints

[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:Time constraints

[Dragonslicer]

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

Re:Time constraints

[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:Time constraints

[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:Time constraints

[Atzanteol]

That's right, not one.

Re:Time constraints

[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 NOT!

We simply prosecute the guy for murder as if he used his bar hands, knife, or any type of technology. How hard is that!

The problem with law makers is that by definition of their job they believe that everything can be solved with new laws. Simply making something illegal usually doesn't cause people to change their ways unless it was a big gray area.

To correct the "law bloat" we face would require a whole new body of government whose job is solely to revoke old laws who should no longer apply. The real problem is that laws have no expiration date and although many should not, if you keep on constantly making new laws eventually over a couple hundred of years almost everything will be illegal one way or another.

Either we need expiration and review dates on all new laws or we need a body of government reviewing and revoking laws as their sole job.

Re:Time constraints

[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 recent budget bill that requires that colleges filter at the cost of losing federal funding. The feds claim the law will never be enforced, but the question becomes if it's not going to be enforced why is the law in there? And secondarily do you believe the law won't be enforced against everyone, or only against colleges the administration wants to punish? Because in the real world such a bill likely won't be enforced except to exact revenge or punish an institution for angering an administration. Laws that are seldom enforced are the laws that are used to exact political revenge. They are a threat to our constitution and our very freedoms. That is the problem the original poster should be dealing with, not some terrible review system.

Congress should not work to pass new laws, they should be spending the majority of their time removing all the old laws and seldom enforced laws.

Re:Time constraints

[blurryrunner]

+1 if i had the mod points

Re:Time constraints

[DragonWriter]

Why do laws need to be constantly changed and updated in the first place?

Because the context to which laws are applied changes, and because the social value judgements on which laws are inevitably based change, and because a growing divergence between social preferences and law is a recipe for disaster.

To correct the "law bloat" we face would require a whole new body of government whose job is solely to revoke old laws who should no longer apply.

No, we'd just need popular pressure on the lawmaking bodies to acheive that: they can already repeal old laws the same way they create new ones. The reason they don't is the people don't demand it. If the people did, not doing it would not be a viable political options. The thing is, people like the idea of "less laws" in the abstract, but that doesn't carry over into specifics.

Re:Time constraints

[Creepy]

The economic stimulus only works if people getting the 'rebate' (read: borrowed money) spend it on buying stuff (stimulating the economy) and not paying their personal debt. If it backfires, it can cause a worse depression and stimulate hyper-inflation as the currency devalues and causes the debt to grow on its own (one of the risks of fiat currency). Whether rushing this is worth the risk or not is debatable.

    As a side note, Income tax rebates are generally considered taxable earned income, so in a way some of that money is just a temporary loan. The government does not collect sales tax, so offering a (tax free) sales tax rebate is not an option.

Re:Time constraints

[DragonWriter]

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

Budget items are laws (or parts of laws), and to get a new budget item passed takes exactly whatever is necessary to get a new law passed.

Re:Time constraints

[vertinox]

Because the context to which laws are applied changes, and because the social value judgements on which laws are inevitably based change, and because a growing divergence between social preferences and law is a recipe for disaster.

Ummm... That was what I said. Laws need to have an review or expiration date. Thomas Jefferson had once suggested that a 20 year national constitutional convention should happen to go with the new changes in social attitudes. The reason people aren't calling for revoking of laws because they are too complex to understand so most people ignore them.

But over all, laws simply do not need to be made when existing laws applied. Sure, in my example, there was no need to make killing people with ray guns illegal, but maybe you want to pass a law outlawing ray guns which is a different matter.

At the same time, laws outlawing muskets with bayonets over 9 inches may want to be reviewed since such a danger no longer applies to modern society.

The key issue we have today is lawmakers are simply are appeasing voters who themselves have no true understanding of law. A representative democracy in its ideal form would attempt to remove some of the complexity by having a built in process to remove unneeded laws.

Re:Time constraints

[Shadowlore]

Laws are not intended to be things you "pass on a whim". Therefore there is no danger in letting laws take a while to get reviewed and passed. Most of the greatest injustices and statist/fascist deeds were done in rapid-action bill passage.

If it's worth doing, it's worth doing right. I'll take Ms. RightLaw tomorrow over Ms. RightNowLaw tonight because Ms. RightNowLaw has VD, man. The kind that never goes away.

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:IANAL... but then neither are you

[Anonymous Coward]

Wall of text crits you for OVER 9000! TLDR

Normally I get annoyed at the TLDR folks you see on some messageboards / forums, but in this particular case I share their sentiments.

While it would appear the "frequent contributor" has a grasp of grammar, punctuation and even *gasp* paragraphs, I must admit that he has produced a veritable wall of text of a magnitude which is so imposing and formidable that it immediately dissuaded me from even considering beginning to attempt to read it.

Re:IANAL... but then neither are you

[dotancohen]

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

Re:IANAL... but then neither are you

[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:IANAL... but then neither are you

[plague3106]

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

Re:IANAL... but then neither are you

[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:IANAL... but then neither are you

[Anonymous Coward]

Perhaps if you had an attention span longer than that of a gnat, your policies and by-laws could anticipate more outcomes and interpretations.

I'd type more but you wouldn't bother to read it anyway.

Re:IANAL... but then neither are you

[sir fer]

meh

I was gonna read your post but it reeked of tedium after the first line.

Re:IANAL... but then neither are you

[nomadic]

Wel IAAL, and there isn't any way in hell I'm reading that whole thing. It's very very long.

Re:IANAL... but then neither are you

[dotancohen]

Some like it that way. I did.

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:But the Constitution...

[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 citizens and their consitutional rights. If this system were set up to "protect people's right to have understandable laws" than it would be a simple matter to claim federal rights to push it on the states.

I do agree with most of the rest of your post though.

Re:But the Constitution...

[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 passage, what the meaning of a statute is for common present-day circumstances, then what was accomplished? Essentially the law has not truly been created, because it will require years of court cases and appeals before anyone has a clue what the law really is. That's just poor craftsmanship on the part of lawmakers, which forces judges to essentially do the lawmakers' jobs.

Many of the situations in Bennett Haselton's editorial were examples of poor craftsmanship rather than intentional ambiguity. Surely rules about the size of the required bond to post an appeal could be written more clearly. And even for cases where some level of ambiguity is desired, having a "test team" seems like it could be useful to help lawmakers keep the ambiguity they want and eliminate the ambiguity they don't.

Re:But the Constitution...

[Anonymous Coward]

Not so sure about needing a law for all cases but you are right about slowing the system down. I am going to take the science example since courts in the US follow the out line of the Scientific method: a belief of wrong doing (hypothesis), provide evidence that support claim of wrong doing (data), check law (validating data), and punishment or make change to current laws (out come, a little different then theorem which leads to a law but sometime changes to the current law do happen so close enough for more then just a passing similarity).

Now in science, we have theorems that get thoroughly tested before they become laws (aka Law of Thermal dynamics). But theorems are statements about the observed interaction (aka theory of Gravity). This theory covers a large area on how gravity works, not just holding people in place and things along that nature. But you have to understand the action that is occurring before making such a theory. Its this understanding that would slow it all down or one could make a lot of little laws until it became clear what the big idea is that covers it. However, congress does not go back and review several cases to determine if or what groups of laws should be combined to support a more general rule which would be very time consuming.

Part of the biggest problem with laws are how people are interacting, what are they trying to do, extra, because most people dont want to tell you that yes I want $450 worth of CD for only $35 and yes I was trying to get away with it because of someone else had errored, instead of pointing it out to the company that they might have the CD priced wrong (I really want to take advantage of this persons error instead of being nice and trying to point out a problem and help correct it). This is true at a personal leave, at a company level (ENRON), even at a government level which also makes law (very interesting). So perhaps this part might be more of what needs to be fixed. Good luck with that one though.

Re:But the Constitution...

[sperxios10]

Interesting objections!
In order to augment this "law-zilla" proposal and accomodate for your valid points i would add the following guidelines:
* Oligonomy, in the ancient-greek sense: The public faith that laws should be as few as possible.

* Law-makers and law-testers should be selected by alotment in order to be more neutraly motivated.

* Having an open process where more people can participate through some CMS may actually *speed-up* thinbgs.

* I dont live in a feds state, so i can't think of a safe counter-meausure.
But i'm a european citizen and i'm hoping to live long enough to become a world-citizen.
And the world is in a badly need for such a law-zilla.

Re:But the Constitution...

[Anonymous Coward]

"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."

Er...how is this a real counterargument? I see so often:
A: I have a great idea that would reform the country. It goes like this!
B: But federalism - you can't make the states do that!

And to that my response is: then implement idea A at the state level. In your state. Maybe if your state does it, other ones will pick it up. And the federal government will pick it up for its laws...

I wouldn't imagine that the way this would be implemented would be the feds forcing the states - it might even be the states forcing the feds. Or some states doing it, and being much better off for it, and the system being that much more just.

Re:But the Constitution...

[Zordak]

I think what he describes sounds a lot more like continental (and Louisiana) Civil Law. In civil law, supposedly everything is in the statutes, so courts don't get to make new law. At common law, judges writing law is not a bug, it's a feature. It's been like that for many centuries, and for the most part, it works pretty well. Judges can protect rights that the drafters of the law didn't foresee. That's a good thing (though I hasten to point out that this is not the same thing as using non-textual constitutional rights to strike down what the legislators did write).

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 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:NOT a good idea.

[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.

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:Content Management

[Nerdfest]

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

Re:Content Management

[StreetStealth]

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

Re:Content Management

[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:Content Management

[inKubus]

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

Re:Content Management

[OldeTimeGeek]

The text of bills and their authors, sponsors and cosponsors is already published and freely available - if you're willing to look for it.

The THOMAS information system of the Library of Congress has information on all bills heard before the US Senate and House. You can also ask your member of Congress for information on any specific bill that interests you.

Most states have similar systems.

The first law we vette through this process...

[bruce_the_moose]

...is the second amendment!

Re:The first law we vette through this process...

[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.

Re:The first law we vette through this process...

[bruce_the_moose]

I didn't want to bring up gun control per se, but rather in keeping with the spirit of TFA, I suggest that this:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

is pretty darn ambiguous, and had the founders run it through a test phase whereby people could have asked (as beta tester might have asked the developers), "umm, what does the first part of the sentence have to do with the second?" We could thereby have avoided having the Supremes try to decipher what the hell the authors were thinking.

The whole school of "Strict Constructionism," as it is commonly used, whereby the justices try to ascertain what the original intent of the authors was, might be rendered moot if we really could test drive a law and see how it works in practice.

But it would never work, as many of the philophers here point out, the Law of Unintended Consequences remains the law of the land.

Re:The first law we vette through this process...

[tjstork]

is pretty darn ambiguous, and had the founders run it through a test phase whereby people could have asked (as beta tester might have asked the developers), "umm, what does the first part of the sentence have to do with the second?

It would have been mighty tough to do that in an era when most people couldn't read.

As a historical note though, the idea of the 2nd amendment was in fact, to give the people the right to rebel against the government, and to eliminate the need and expense of a standing army. The FF's didn't trust the idea of a professional military at all, or really, anything that could be abused by the Federal Power, so that's why historically, America hasn't had a large military (until WWII).

So, if you are a peacenik liberal type, you couldn't really argue against the historical nature of the 2nd amendment - it is intended to be that every citizen should have a gun. But... you could also make a damned good argument against having a standing military. If the FF's saw today's DoD, they would be outraged, for sure!

Re:The first law we vette through this process...

[DragonWriter]

As a historical note though, the idea of the 2nd amendment was in fact, to give the people the right to rebel against the government, and to eliminate the need and expense of a standing army.

It would be more accurate to say thay idea of the second amendment was, in part, as a guarantee against the states being oppressed by the federal government in the same way that the colonies had been by the British crown by guaranteeing the states the capacity (not the right, which the founders generally considered, obviously, to exist naturally but never codified anywhere in the Constitution) to resist encroachment by the federal government.

and to eliminate the need and expense of a standing army.

Congress power to regulate, train, and equip the militia (understood, at that time, to be universal) in Article I was designed for that purpose; a right expressly outside of Congress' ability to regulate and direct didn't add anything to that in terms of reducing the need for a standing federal army.

The FF's didn't trust the idea of a professional military at all, or really, anything that could be abused by the Federal Power, so that's why historically, America hasn't had a large military (until WWII).

Well, at least not a large peactime military, until arguably after WWII, though alternatively one could view the entire post-WWII period (not just from the size of the military, but from powers assumed by the executive and other aspects of government behavior) as a permanent state of war even in those moments where the US was not actively engaging a particular external enemy.

So, if you are a peacenik liberal type, you couldn't really argue against the historical nature of the 2nd amendment - it is intended to be that every citizen should have a gun.

No, its not. "Every citizen should have a gun" is arguably something within Congress' Article I powers should it have ever decided to exercise them that way, but Amendment II neither has the purpose nor the effect of mandating or even encouraging the citizenry to arm themselves, it simply restricts the federal government from prohibiting that (or, at least, from prohibiting the states from allowing it.)

Re:The first law we vette through this process...

[tjstork]

No, its not. "Every citizen should have a gun" is arguably something within Congress' Article I powers should it have ever decided to exercise them that way, but Amendment II neither has the purpose nor the effect of mandating or even encouraging the citizenry to arm themselves, it simply restricts the federal government from prohibiting that (or, at least, from prohibiting the states from allowing it.)

I simply disagree with both assertions.

Re:The first law we vette through this process...

[tjstork]

No, its not. "Every citizen should have a gun" is arguably something within Congress' Article I powers should it have ever decided to exercise them that way, but Amendment II neither has the purpose nor the effect of mandating or even encouraging the citizenry to arm themselves, it simply restricts the federal government from prohibiting that (or, at least, from prohibiting the states from allowing it.)

I apologize for my last post. I misread what you wrote.

There's an interesting argument here. You argue that the Congress has the power to mandate that every citizen has a gun, but, then if that were the case, would universe health care actually be constitutional? Can the Federal Government mandate that every citizen actually purchase something? Yes, the government can regulate commerce, but does it have the right to impose it?

Me thinks not.

Re:The first law we vette through this process...

[DragonWriter]

You argue that the Congress has the power to mandate that every citizen has a gun, but, then if that were the case, would universe health care actually be constitutional?

Not for the same reason. Whether any particular mechanism of acheiving universal healthcare is Constitutional is a completely different question than the one at issue here.

Can the Federal Government mandate that every citizen actually purchase something?

Neither "universal healthcare" nor "every citizen has a gun" require Congress to "mandate that every citizen actually purchase something", except insofar as general taxes (which Congress clearly has the Constitutional power to levy) could be said to require people to purchase whatever it is that Congress spends the money on (yes, either of them could, Constitutional questions aside, be acheived through individual purchase mandates, but neither requires individual purchase mandates.)

Yes, the government can regulate commerce, but does it have the right to impose it?

On the matter of "every citizen has a gun", Congress' power isn't the Commerce power, but the power to "To provide for organizing, arming, and disciplining, the militia".

Re:The first law we vette through this process...

[tjstork]

(yes, either of them could, Constitutional questions aside, be acheived through individual purchase mandates, but neither requires individual purchase mandates.)

Well the question here would be applicable to Clinton's health care proposal, which would require that everyone have health insurance. In fact, Obama's proposal requires the same as well, but he's treating the ends of the equation somewhat differently.

On the matter of "every citizen has a gun", Congress' power isn't the Commerce power, but the power to "To provide for organizing, arming, and disciplining, the militia".

That does go back to my original point, which is, the idea of a standing Army as we have it today is rather unconstitutional, isn't it? I mean, if we conclude that the founding fathers envisioned an armed citizenry, "the militia" as not being an army, in order to have 2nd amendment rights, then, we also have to conclude that we can't really have a standing army. Or, at least, if there was one, the militia and the army is not the same thing. I think they were quite capable of saying Army even in those days and the word "militia" implies something very different than an armed citizenry AND and an army.

I only bring this up because in Jefferson's letters to Madison and vice versa, an excellent volume, both men felt the idea of a permanent army was a risk to the republic. The idea was that citizens would be armed, so, that, they could be called up in times of crisis, and repel the invader, and that was better than having a standing army, which might be used for more imperial ends, or to support a tyranny. Sure, we can say government by the consent of the governed, and Jefferson could throw out such dreamy sounding things, but, to Madison, it was a practical consideration, and his answer was that every citizen should be armed.

Of course, then it gets into, what is a citizen?

Re:The first law we vette through this process...

[DragonWriter]

Well the question here would be applicable to Clinton's health care proposal, which would require that everyone have health insurance.

Yes, Clinton's program has individual purchase mandates. The Constitutionality of those is unrelated to any power Congress has to mandate personal armament for all members of the (universal) militia.

In fact, Obama's proposal requires the same as well, but he's treating the ends of the equation somewhat differently.

As I understand it, Obama's does not, and that's a principal criticism of it from the Clinton camp, but that's increasingly off-topic here.

That does go back to my original point, which is, the idea of a standing Army as we have it today is rather unconstitutional, isn't it?

No, nothing in the Constitution prohibits a standing army. Congress has the Constitutional power to raise one, and the only Constitutional limit is that appropriations for the army can't be for longer than two years at a time.

I mean, if we conclude that the founding fathers envisioned an armed citizenry, "the militia" as not being an army, in order to have 2nd amendment rights, then, we also have to conclude that we can't really have a standing army.

No, we don't. It is certainly the case that the the founding fathers distrusted standing armies, and that they put into the Constitutions provisions which were designed to reduce the need for them (various militia related provisions) and provisions designed to reduce the chance of them being self-perpetuating without review (the limit on duration of appropriations) and provisions designed to prevent the military from becoming detached from civilian control (the commander-in-chief provision attaching supreme command to the elected President, provisions expressly granting Congress the power to govern the military.) But they did not prohibit them in the Constitution, we can have them, Constitutionally, subject to all those constraints placed on them.

I only bring this up because in Jefferson's letters to Madison and vice versa, an excellent volume, both men felt the idea of a permanent army was a risk to the republic.

I think both Jefferson and Madison expressed the idea, too, that a permanent Constitution without the active buy-in of successive generations was a risk to the Republic, as well; what particular founders would prefer occur and what the Constitution actually requires and prohibits are not always perfect matches.

Filters

[DavidTC]

I always thought that a useful way to restructure the law would be to apply filters at each level.

It is nearly impossible to actually find all the parts of the law that could apply to what you are doing, so I propose a system where at each level, the law becomes more and more specific, and everything under that level can only apply to situations where it matches the filter.

This would remove a lot of the ambiguity, at least where laws are stretched to cover things they weren't supposed to cover.

Laws are always going to be ambiguous

[Stringer Bell]

The complete explanation is complicated, but Godel, Escher Bach does a pretty good job of explaining. It's an older book, but a great read..

Re:Laws are always going to be ambiguous

[Anonymous Coward]

Executive summary for those who don't like to watch intellectual masturbation at that level:

"Godel's Theorem. Woah!"

Which seems to imply:

"Models of complex systems can never be complete."

But doesn't.

Re:Laws are always going to be ambiguous

[Relic of the Future]

It always amazes me the things people say "Godel, Escher, Bach" is about.

Read "I Am a Strange Loop", which is sort of Hofstadter's spiritual sequel to GEB, which not only more-plainly states what GEB is actually about (he, too, is always amazed at what people think his book was about), but expounds on where he was going with those ideas; 20 extra years has given him more time to hone his points. (Actually, read his preface to the 20th anniversary edition of GEB just before reading IAaSL.)

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 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 sponsors, didn't get out of House subcommittee
• S.RES. 152: 18 sponsors, didn't get out of Senate Committee on Rules
• S. 1039: 20 sponsors, didn't get out of Senate Subcommittee on Constitution, Federalism, Property
• HR 106: 20 sponsors, didn't get out of House subcommitee

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.

Let's establish the ground rules before coming up with a process to test against those ground rules.

Re:How about mere Constitutionality?

[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 has anything to do with the public good? No, that law was bought, paid for, and written by the RIAA.

Re:How about mere Constitutionality?

[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:How about mere Constitutionality?

[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. Simply never going to happen, short of a complete overthrow of our government and/or a top to bottom replacement of all public officials (technically different, practically the same thing).

Re:How about mere Constitutionality?

[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 favored withdrawing from a conflict that may or may not be legal (Congress never flexed its muscles to get the troops out of Iraq, and the Gulf of Tonkin resolution pretty much lets the President start a war in an emergency and then gives Congress the power to veto later.) He favors the dismantling of the IRS and federal income tax, which the Constitution was amended to explicitly allow. It is just not the case that Ron Paul is solely a strict consitutionalist, there are lots of other views he has, and those other views are why he does poorly in the primaries and in the media.

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:To create a new law

[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 interest to keep both laws on the books.

Furthermore, no politician wants to be seen as "soft on crime", so it's unlikely that they would vote to repeal criminal statutes, even the patently stupid ones.

Software Development Lifecycle

[Anonymous Coward]

Just what we need, entry level programmers trying to fix the legal system, great just great.

So when someone gets convicted on a technicality, they can just release a service pack , right?

Software is great, and developers have good skills, but in the legal system, I'll stick to judges and other non-technical people, thank you very much.

Software developers and simple programmers are used to flexibility, and have no body to report to when [invariably] they foul up.

When the equivalent of the PEO [Professional Engineers Organization] or say the Bar association can be formed to oversee, reprimand, and set real standards [ie: not Microsoft ones], I'll give a serious lesson.

For now, it's just a bunch of wannabe's IANAL's talking where they don't belong.

A big missing piece in the plan...

[ZeroPly]

The proposal assumes that laws are self-contained, but in reality they exist in a context of other (possibly even more vague) laws. The tester group would need to be aware of ALL these other laws to declare a particular law vague. Take a simple case - "obscene materials shall not be displayed inside restaurants that serve minors". Do you already have a law that says restaurants cannot refuse to serve customers who have brought children? Not to mention the can of worms about what is obscene, conflicting federal laws and so on. The tester group would have to be judges, and you're right back at the massive clusterfuck that is the US judicial system.

The only solution is to disallow any lawyer or judge from interpreting a law. If there is a question as to whether a law is vague then it has to be determined by a panel of lay people. Take lawyers out of the equation and you have a set of laws that anyone can understand. If it doesn't make sense to a jury of your peers, it's vague and needs to be thrown out.

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.

IANAL.

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 limit is ridiculous, but, as the immense majority are never fined, they don't care and they ignores the limit.

Result? Instant power to the police.

The same strategy can be applied in a multitude of cases to give power to whoever decides when a rule or law applies.

Ambiguity is not a mistake is a power generating tactic.

Re:An ambiguous law give the power to the judge.

[dotancohen]

Microsoft has been doing this for years with software patents ~

Re:An ambiguous law give the power to the judge.

[DragonWriter]

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.

A law that categorically forbids something that is universal and unavoidable gives power to whoever has the decision to prosecute the offense (the public prosecutor if it is a criminal law, or a civil law that creates a public cause of action; whoever can afford to prosecute it on their own if it is a civil law that creates a private cause of action.)

A law that is unclear as to what it prohibits gives power to the judicial system (though not necessary the trial judge, as decisions under such a law are most likely to be appealed and the results are hard to predict.)

What empowers a trial judge are laws:
1) Which give express discretion to the trial judge, or
2) Which limit the ability of a certain decisions to be appealed, either through express limits on which appeals may be heard or by posing procedural hurdles in terms of standards of review or prerequisites for review.

Re:An ambiguous law give the power to the judge.

[Thanshin]

Much more correct, precise and better explained than me. Would you mind giving examples of:

- A criminal law that categorically forbids something that is universal and unavoidable.
- A civil law that creates a private cause of action.
- A law that is unclear as to what it prohibits.
- A law which give express discretion to the trial judge.
- A law which limit the ability of a certain decisions to be appealed, either through express limits on which appeals may be heard or by posing procedural hurdles in terms of standards of review or prerequisites for review.

I'd try filling some of those, but I'd probably fail.

Re:An ambiguous law give the power to the judge.

[DragonWriter]

Would you mind giving examples of:

- A criminal law that categorically forbids something that is universal and unavoidable.

Well, a hypothetical example would be, say, a law that made it criminal to breathe. In the real world, criminal laws don't reach quite that extreme, but may approach it, usually for the purpose of allowing prosecutors to prosecute an easy-to-prove charge when the goal is to prevent some other activity. An example from the town I grew up in is a city ordinance making it illegal for minors to possess paint, marker pens, chalk, or any of a wide variety of other things that could be used as marking instruments on any public right-of-way. The stated purpose, of course, was to attack graffiti, and the police chief (who was also the city manager), when lobbying the city council for the law, claimed that it would never be used for any other purpose. Naturally, though, nothing in the law included anything about intent, purpose, or use.

- A civil law that creates a private cause of action.

Anything that allows a private person to file a lawsuit.

- A law that is unclear as to what it prohibits.

That's tough to do meaningfully and concisely off the top of my head; usually, the kind of ambiguity that exists results in using one or more terms or combination of terms that have different clear definitions in different contexts, in a context where it is unclear which definition applies.

- A law which give express discretion to the trial judge.

Laws which provide for a range of remedies, such as a range of criminal sentences, without specific conditions controlling where in the range a remedy falls would be one example of express discretion.

- A law which limit the ability of a certain decisions to be appealed, either through express limits on which appeals may be heard or by posing procedural hurdles in terms of standards of review or prerequisites for review.

An example of such a hurdle (a fairly low one) is the bond requirement for appeal in the small claims cases at issue in this thread. A more significant hurdle is found in the Military Commissions Act.

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:Cannot be done

[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 laypeople, but the law is already hard to interpret and on top of that, ambiguous.

Re:Cannot be done

[radimvice]

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.

To call any attempt at structured interpretation of meaning an exercise in futility because a multitude of interpretations exists is itself an exercise in futility - otherwise known as the standard philosophical position of 'post-structuralism'. Programmers, on the other hand, create meaning out of ambiguity by cobbling together stable, unambiguous grammars smack in the middle of all the unknowns and uncertainties of the human world and all of its messy, natural language. And you can feel free to quote Godel and call computer code a fallacy of logic, but you know what, sometimes it manages to actually get some things done.

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?

What's the Difference Between Slashdot and Court?

[Anonymous Coward]

In court, this pointless long-winded nutjob gets tossed to the curb for wasting everyone's time.

In slashdot, this pointless long-winded nutjob becomes a "frequent contributor."

Nothing will change

[MikeRT]

Until lawyers are prohibited by constitutional amendment from serving within the body politic. Having held an active license to practice law within the last ten years should automatically disqualify you from being a legislator. It's a pure, textbook case of conflict of interest to allow lawyers to write the laws that they will be arguing because they're the ones who will be profiting from how those laws are written.

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).

I for one am perfectly willing to sacrifice the modern democratic ideals that people mindlessly hold to in order to fix the system. I don't believe it's a natural right of every citizen to vote or to hold office. The greater public good even demands that certain types of people be disenfranchised. Such people include government employees and contractors, but it can't entirely stop there, in order to limit the power of those who have a vested interest in keeping the system working to fill up their wallets.

Re:Nothing will change

[SoulRider]

Right on brother, the only political branch of governement that lawyers should be eligible to serve in should be the judicial branch. I also dont think it is right that lawyers should be eligble for election in the Executive branch either. We "are" in a position where law makers are passing laws just to ensure their careers if they dont get elected, and not law makers that are creating laws to benefit the people. I really dont consider it a deliberate conspiracy but you have to admit, the law profession as a whole has strategically placed itself in all branches of government so that they benefit more than anyone else from government. And they dont seem to give a rats ass what happens to the public they are suppose to be serving. In my book that is treason, if there actually is organization behind this movement, then the organizers should be strung up.

Re:Nothing will change

[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.

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-defendant legislation. The fact that lawyers are involved in drafting the laws is not a significant source of pork-barrel legislation.

Re:Nothing will change

[xlation]

Why not exclude everyone who receives a government benefit they don't pay for?

Guess what, with a National debt of around $30,000 per person and climbing, it's a pretty safe bet that no one is paying enough.

Remember, it's not just the welfare checks and food stamps--even the rich suck up tons of government money. Sure, Warren Buffet may pay over $800,000 in income tax, but would GEICO and his other holdings be nearly as valuable if it were not for the federal money that went into building roads and educating the workforce? What would the goods cost if we were not paying for a Navy that has practically eliminated piracy?

Re:Nothing will change

[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 lawyers end up in Congress, and it's not (purely) self-interest. One needs, at the least, a working knowledge of how the American legal system works in order to craft a worthwhile law to be applied in it. (Any decent law school student can look at a law that says "no spam with misleading subject lines", and see there's a world of difficulty waiting in the courts.)

Look, I realize that lawyers are more than a little out of control in this country, but they are necessary players in the legislature.

Re:Nothing will change

[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 that they will have use for an understanding of laws and lawmaking. Others are lawyers already, and become interested in making laws because they deal with them all day.

There is another group that I have noticed dominates local politics: real estate brokers, agents, and land owners. Like any group of specialists, these folks have an interest in laws and policies that they can exploit, since so many of our local laws have to do with the disposition and acquisition of land. Shall we bar these people too?

Who gets to be on that committee? This is a complicated problem. Barring lawyers from legislating is an unreasonable idea.

Re:Nothing will change

[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 had legislative authority at any time within the last ten years.

So, if you serve on city council, you can't practice law in the city for ten years, but you can go to some other city and practice there. Similarly with state legislators. We already have rules, requirements, and enforcement mechanisms to control who may or may not practice law, and where. This is just one more rule, easy to enforce. But it would be VERY hard to get such a law passed.

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.)

Re:Nothing will change

[mr_matticus]

It's a pure, textbook case of conflict of interest to allow lawyers to write the laws that they will be arguing because they're the ones who will be profiting from how those laws are written. Horseshit.

1. If you participated in the drafting of the legislation, you are barred from representing a client suing under it.
2. Lawyers as a class don't agree on anything more than doctors as a class, or programmers as a class.
3. Practicing lawyers hate legislators just as much as everyone else. They won't just sit on their thumbs, and they keep changing things, even if it's just to renumber everything to make all brief citations wrong every couple of years.
4. Lawyers argue all laws, and it doesn't matter who writes them. Judges make the final decision, and if you're qualified to read something, one would hope you're also qualified to write it and vice versa.
5. If you think that lawyers gain a strategic advantage by writing laws (with the underlying assumption that they are more complicated as a result), you're absolutely delirious. Lawyers and judges battle their caseloads, and no sane lawyer wants a case sitting around for five, six, seven years. You try to remember everything you've said from a case that is now 30 deep in the pile but just won't go away. Lawyers don't want them to last forever, either. Even if the sole source of income is from fees during that time, there comes a point where the amount of energy it takes to hold up that accretion ball is not worth your time in dealing with it. There are only so many billable hours in a week.
6. You don't have non-chemists review chemistry papers. Why should you bar "lawyers" by which I assume you mean all legal professionals from making sure that laws make legal sense?
7. If you put people in a room with no experience in how laws work, how they're applied, and what the consequences are to a given side in litigation, they'd have no clue how to draft a good law. A legislature should not be exclusively lawyers (and they rarely are), but there's a reason why experience in the thing you're creating is a desirable trait.
8. Attorneys make more than their legislative counterparts in almost every instance. Legislators either do it because they care, or because they're already so rich that they don't have anything to worry about it. Contrary to popular belief, the number of people in the latter category is not tremendous until you hit the US Senate, and even there, "rich" is a relative term.

Re:Nothing will change

[cpt kangarooski]

There are only so many billable hours in a week.

See, now there's a problem the law could fix! ;)

Re:Nothing will change

[mr_matticus]

...but would there be anyone left standing at the end of the first week? :)

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 to read the entire article yet) - it is a captivating notion.

One revision I might suggest; consider test-first legislation. If you write unit tests first, and then write legislation only to satisfy the unit tests, it reduces the risk of adding "we might need this someday" functionality. That hypothetically needed functionality could be the source of maintenance problems and unintended side-effects.

Yeah - I really like your analogy. Well done!

Re:Test First Legislation

[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:Test First Legislation

[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 lawyers come up with the test cases. Judges are QA executing the tests and ruling whether the law passes the test.

OK, now it's my turn to be aghast. You're suggesting testing code in production? That's quite risky. Wouldn't an approach that attempts to test before production be preferable?

Re:Test First Legislation

[bishiraver]

Of course you can't write tests first without knowing the business requirements. However, the tests should be defined specifically by business requirements.

Have it work like TDD (Test Driven Development):

1) write a unit test that fails
2) write code (law) to make that unit test pass
3) write more unit tests for each piece of business (legislative) logic needed such that it fails with the current law
4) wirite code(law) to make said unit test pass
5) goto 3

Once all tests needed are written and pass with given legislation, the legislation can be brought to floor.

Re:Test First Legislation

[mcmonkey]

OK, now it's my turn to be aghast. You're suggesting testing code in production? That's quite risky. Wouldn't an approach that attempts to test before production be preferable?

Quite risky indeed, which is why proper thought and consideration before beginning development is even more important.

Law is the ultimate in practicality. 'What is legal' and 'what you can get away with' are, in the end, the same thing. (And everything is legal in New Jersey, as long as you don't get caught.)

The law is what the judge you are in front of says is the law. Usually it's not too hard to predict what a judge will say is the law on a certain case. On the other hard, there are times where what you have done is not illegal until a judge says it is.

This is why law school is all case law and precedent. What do we have, other than production, in which to test laws? What in software development would be done with a test or UAT platform, must in law, either be considered before hand in requirements gathering or after in production.

To do true testing with law, you either need legislators to consult with judges before a law is put into effect. (Which is unlikely as legislators are likely to see this as an encroachment on their powers by the judicial branch.) Or you need the right to challenge a law separate from any enforcement activity.

IANAL, but my impression is, that while this has been done, it is becoming harder and harder to do. For example, I'd like to challenge the holding of prisoners in Gitmo without trial or even charges being filed. The courts would likely rule I have no standing on which to bring a case--my rights aren't being infringed. At the same time, the prisoners aren't being afforded access to the legal system to challenge on their own behalf.

Basically, the US executive is saying, you can't run this code on a test system, and once it's in production we won't allow any changes.

Re:Test First Legislation

[Bob9113]

This is why law school is all case law and precedent. What do we have, other than production, in which to test laws? What in software development would be done with a test or UAT platform, must in law, either be considered before hand in requirements gathering or after in production.

That is indeed the current state of affairs in law. There was a time (and there are still places) where that is also the current state of software development. What the original poster is proposing is that it may be possible to change that.

Consider this: When the next version of the DMCA is being drafted, have Larry Lessig argue a hypothetical case on the side of the copyright holder. Have argue that same hypothetical case on the side of the infringer. Both lawyers would be motivated to present the most extreme attempts to invalidate the law, because they want it to work in their favor once passed.

Cost? What is the cost of a poorly written law making it into production? Surely it is vastly greater than the cost of hiring a few lawyers and a judge for a month or two.

It might not work at all. And it would surely not cover all cases, just as unit and integration tests do not cover all cases in software. It does not make perfect software, but it makes software better. It might do the same for law; law and software have many things in common.

You seem quite familiar with both law and software development. I think you could make a significant contribution to the idea (which may never come to fruition but is at least an interesting mental exercise). Why not take a spin on the positive side, see what you can come up with?

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.

Re:Sunset clauses on EVERYTHING

[PTBarnum]

So once every 10 years, someone will introduce a bill quoting the entire text of the current CFR and extending it by 10 years. Of course, representatives and senators will amend it to remove laws they don't like or add new ones that they do like, but that is similar to what they do with individual bills today.

But at least the public will clearly understand the difference between repealing something and failing to renew it, right? And no politicians will claim one when they mean the other? After all, this is all being handled in a very mature and professional manner with the expiring tax cuts.

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.

Totally naive

[Anonymous Coward]

Wow - this is perhaps the most naive essay I've read in a long time on slashdot, and that's saying a lot. The author not only doesn't understand how laws are created and the role of the judiciary (judges DO make law and always have, right-wing political pandering be damned), but he doesn't even understand that bad laws often pass as a compromise between warring political factions in a legislative body. Not to mention that including examples in your laws might unduly restrict the scope of the law when instead you'd want something flexible to cover the unknowable in 20-50 years time.

This is what happens when young-techies try to get involved in a field that is way beyond their competence.

everything made by man'kind' fails

[Anonymous Coward]

& then we start again. let yOUR conscience be yOUR guide. you can be more helpful than you might have imagined. there are still some choices. if they do not suit you, consider the likely results of continuing to follow the corepirate nazi hypenosys story LIEn, whereas anything of relevance is replaced almost instantly with pr ?firm? scriptdead mindphuking propaganda or 'celebrity' trivia 'foam'. meanwhile; don't forget to get a little more oxygen on yOUR brain, & look up in the sky from time to time, starting early in the day. there's lots going on up there.

http://news.yahoo.com/s/ap/20071229/ap_on_sc/ye_climate_records;_ylt=A0WTcVgednZHP2gB9wms0NUE
http://news.yahoo.com/s/afp/20080108/ts_alt_afp/ushealthfrancemortality;_ylt=A9G_RngbRIVHsYAAfCas0NUE
http://www.nytimes.com/2007/12/31/opinion/31mon1.html?em&ex=1199336400&en=c4b5414371631707&ei=5087%0A

is it time to get real yet? A LOT of energy is being squandered in attempts to keep US in the dark. in the end (give or take a few 1000 years), the creators will prevail (world without end, etc...), as it has always been. the process of gaining yOUR release from the current hostage situation may not be what you might think it is. butt of course, most of US don't know, or care what a precarious/fatal situation we're in. for example; the insidious attempts by the felonious corepirate nazi execrable to block the suns' light, interfering with a requirement (sunlight) for us to stay healthy/alive. it's likely not good for yOUR health/memories 'else they'd be bragging about it? we're intending for the whoreabully deceptive (they'll do ANYTHING for a bit more monIE/power) felons to give up/fail even further, in attempting to control the 'weather', as well as a # of other things/events.

http://video.google.com/videosearch?hl=en&q=video+cloud+spraying

dictator style micro management has never worked (for very long). it's an illness. tie that with life0cidal aggression & softwar gangster style bullying, & what do we have? a greed/fear/ego based recipe for disaster. meanwhile, you can help to stop the bleeding (loss of life & limb);

http://www.cnn.com/2007/POLITICS/12/28/vermont.banning.bush.ap/index.html

the bleeding must be stopped before any healing can begin. jailing a couple of corepirate nazi hired goons would send a clear message to the rest of the world from US. any truthful look at the 'scorecard' would reveal that we are a society in decline/deep doo-doo, despite all of the scriptdead pr ?firm? generated drum beating & flag waving propaganda that we are constantly bombarded with. is it time to get real yet? please consider carefully ALL of yOUR other 'options'. the creators will prevail. as it has always been.

corepirate nazi execrable costs outweigh benefits
(Score:-)mynuts won, the king is a fink)
by ourselves on everyday 24/7

as there are no benefits, just more&more death/debt & disruption. fortunately there's an 'army' of light bringers, coming yOUR way. the little ones/innocents must/will be protected. after the big flash, ALL of yOUR imaginary 'borders' may blur a bit? for each of the creators' innocents harmed in any way, there is a debt that must/will be repaid by you/us, as the perpetrators/minions of unprecedented evile, will not be available. 'vote' with (what's left in) yOUR wallet, & by your behaviors. help bring an end to unprecedented evile's manifestation through yOUR owned felonious corepirate nazi glowbull warmongering execrabl

You're missing the point

[Anonymous Coward]

Laws are supposed to be vague, to give judges and juries discretion. When you set in stone exactly what sentence a judge must impose for a crime, you take away the flexability of the judge to consider new and novel circumstances. Having laws that can be interpreted over time is a feature, not a bug -- by saying, for example, that someone must take "reasonable measures" to avoid injuring other people, you can evolve what constitutes reasonable without re-writing the law (maybe the cost of safety devices changes over time, so what used to be prohibitively expensive is now reasonable. Maybe the fact that something was dangerous was not commonly known in the past, so avoiding it wasn't reasnable to expect, but now everybody knows...)

Foe example: say you pass a law in 1900 saying that "employers must avoid injuring their employees, by doing X, Y, and Z", and carefully enumerate all the things an employer might do to injure their workers.

Would you have realized, in 1900, that radium was dangerous, and limiting exposure to radiation (whose existence was known only to a few scientists), to keep it below a certain threshold (based on medical studies that wouldn't be done for decades), to avoid causing a number of diseases (many of which wouldn't be identified or studied for deacades)? Would your law have covered ergonomic keyboards to prevent RSI for computer programmers, even though neither keyboards nor computer programmers existed yet?

But conveniently, if you just say "Employers must take reasonable measures to avoid injuring their employees", you _have_ covered radiation exposure, RSI, and whatever new danger we might discover in 2009, without needing to revise the law every few days. The cost of this flexibility is that you have to have expensive court cases every so often to draw some lines around "reasonable", but the benefit is that you don't have to have an expensive rewrite-the-law session once a week. You can argue that we want a bit more specificity, but saying we should try to run all the way to the extreme of listing everything is nuts.

The "instant messages aren't email" you mention is actually a perfect example of this. The law in question prohibited sending pornographic emails; someone was convicted for sending porn IMs, because the law actually, *gasp*, anticipated future technological change by stating "For purposes of this section, electronic mail shall be defined as: ...", with a reasonably expansive definition. This prevents people from getting around the intent of the law (prohibiting sending electronic porn), by saying "this was an e-fax, not an email", or "really short electronic messages don't count", or "but I sent it from a phone". The law defined what it meant, in a reasonably future-proof fashion, specifically to avoid having to enumerate the full list of communications technologies that someone might invent in the future using the common english words that hadn't been invented yet for these technologies that haven't been thought of yet.

Agree and disagree

[Anonymous Coward]

It's certainly impossible to make it so you can algorithmically decide what is legal and isn't[1]. So yes, there will always be interpretation issues.

But Bennett Haselton is exactly right that we can do a lot better than what we have now:

-Why should we have to wait until a Supreme Court case to know if what we're doing is kosher?
-Why can't judges rule on constitutionality of a law immediately, rather than wait until there's a case? Wouldn't that save us a lot of time and grief?
-Why is the law so complicated that it takes a lawyer to navigate, effectively taking rights away from those who are wronged but can't make sense of all the things they have to do to legally right the wrong? Imagine what that was like before the internet.
-Like above, why can't laws be corrected the moment someone sees an ambiguity in them?

Btw, my /. username is UbuntuDupe which was recently the target of an internet hate machine, with errant mods modding me down for no justifiable reason. Please, check my posting history, and see if the flamebait mods are accurate. Also, check any post below 1, or maybe 2, since a lot of them used the wussy "overrated" moderation. My karma was excellent as of about 2 weeks ago, and now it's down to terrible. Please help if you can by modding up posts in my history.

[1]I've been reading Hubert Dreyfus's What Computers Can't Do, which documents a very long philsophical tradition of aiming for exactly this kind of thing. Gottfried Leibniz is an excellent example, where he proposes to reduce all concepts to binary numbers and have a procedure to determine the truth of anything, so that if he ever disagrees with anyone, he can simply say, "Let us calculate, Sir."

Re:Agree and disagree

[Anonymous Coward]

Btw, my /. username is UbuntuDupe which was recently the target of an internet hate machine, with errant mods modding me down for no justifiable reason. Please, check my posting history [slashdot.org], and see if the flamebait mods are accurate. Also, check any post below 1, or maybe 2, since a lot of them used the wussy "overrated" moderation. My karma was excellent as of about 2 weeks ago, and now it's down to terrible. Please help if you can by modding up posts in my history. While I am sorry to hear about your Karma, doesn't this interjection qualify as 'Offtopic' from the parent thus nulling your argument?

Re:Agree and disagree

[Anonymous Coward]

-Why can't judges rule on constitutionality of a law immediately, rather than wait until there's a case? Wouldn't that save us a lot of time and grief?

You are obviously not familiar with the Constitution. Courts are limited to deciding "cases and controversies" - which have been interpreted to mean that there must actually need to be someone out there who was willing to sue in court before the system decides to rule on the constitutionality of what's at stake.

Otherwise, the court system would literally be overloaded with "what ifs" without any real facts. Also, you'd have the judiciary stepping on the legislators toes prematurely. My god, some people are dense.

Re:Agree and disagree

[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 lawyers trying to get them out of trouble by not following the actual spirit in which the law was made, with people getting off lightly on technical grounds or whatever. I am not a lawyer, and of course that's just my opinion.

Re:Agree and disagree

[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 moderation, but I wouldn't say it was a vendetta against you.

Re:Agree and disagree

[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 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.

Re:Agree and disagree

[DragonWriter]

I would have thought that it would be pretty easy to algorithmically decide what is legal in a lot of cases

Sure, most legal questions are easy -- even, contra TFRant, under the status quo system -- there is a reason that most disputes don't become formal legal disputes, and most of those that do are settled before going to trial. Cases that go to trial are not representative of the cases to which the law applies.

Re:Agree and disagree

[Curunir_wolf]

You are obviously not familiar with the Constitution. Courts are limited to deciding "cases and controversies" - which have been interpreted to mean that there must actually need to be someone out there who was willing to sue in court before the system decides to rule on the constitutionality of what's at stake.

Well, why can't they just make up an interpretation like they did for the Commerce Clause, and just say "Well, this will have a substantial effect on the cases and controversies that may arise, and that's our interpretation of that clause, so we're going to rule on this right out of the gate..."

Re:Agree and disagree

[cpt kangarooski]

Well, that seems unlikely, given the actual wording of Art. III. Heck, George Washington once asked the Supreme Court for advice and, based on the cases and controversies clause, they basically told him to fuck off. It's an important part of the separation of powers, after all; it keeps the courts from interfering with the political branches, and keeps the courts honest, having been uninvolved with the drafting of the laws on which they'll later be called upon to interpret. Having stuck with this principle for a few centuries now, I doubt they're going to change.

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 it'll just be interpreted The Right Way.

The essay makes the assumption everyone is on board and wants to accomplish at least partially the same goals. You don't need to pay even much attention to politics to know that's not true.

Re:What's the Difference Between Slashdot and Cour

[dotancohen]

In court, this pointless long-winded nutjob gets tossed to the curb for wasting everyone's time.

In slashdot, this pointless long-winded nutjob becomes a "frequent contributor." In the street, I'm a nutjob that gets tossed to the curb by every girl.

At the sperm bank, this pointless long-winded nutjob becomes a "frequent contributor."

What's wrong with that?

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 alien. Read at your own risk as it may make your head asplode

Re:A better idea

[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 understanding of your developmentally disabled daughter, in any language. This is like saying, how about they just keep everything on the internet to a level appropriate for my developmentally disabled daughter?

Is there a problem if code is written so that only a developer can understand it? Laws shouldn't be obfuscated purposely, but that doesn't mean there is no place for specific legal language.

Re:A better idea

[sm62704]

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

Take the dictionary definition. If there are more than one possible meaning to any or the words, define the word as used in the scope of the law.

the law may have to address situations that are beyond the understanding of your developmentally disabled daughter

Then she should NOT be beholden to those laws. If she doesn't understand something she reads on the internet there's little harm to her; hell there's stuff on Wikipedia alone I don't understand and my intelligence is pegged at well above normal. but if she doesn't understand the law how can it apply?

I can read at a postgraduate level, yet some legalese defies logic. How can copyright terms as specified in the Bono Act in any way be "limited"? Yet the Supreme Court says "limited" means whatever Congress says it means.

It should at LEAST be written so that any person of average intelligence should be able to understand it. I don't know of any circumstance (outside palentology or astrophysics) where "Limited time" is longer than a person can continue breathing.

Re:A better idea

[sm62704]

Missed the last part, sorry

Is there a problem if code is written so that only a developer can understand it?

No, but there is a problem if a program is written so only a programmer can use it, unless it's a program only a programmer would use. There is no problem designing a TV set that the average person can't understand the scematics, but there's a problem if the average person can't find the on switch.

A law the average person can't understand is like the TV that the average person can't use. If the law applies to everyone, then anyone should be able to use it. But like TV sets, IMO if you can't design one so that normal people can use them, you're in the wrong line of work.

Re:A better idea

[Randym]

How about they just write laws in plain english, write them so my developmentally disabled daughter can understand them?

Don't try to hurt other people.

There.

Re:A better idea

[sm62704]

That works for teaching your kids, but as far as laws I don't think it would.

You Forgot One Thing

[Anonymous Coward]

You have NO rights in the United Gulags of America.

Fascistly yours,
The world's most dangerouse person

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.

A Little Knowledge is a Dangerous Thing

[sed quid in infernos]

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.)

There's also nothing in the First Amendment to say that it covers state action at all - the Amendment starts "Congress shall make no law..." The reason courts - including Justice Thomas - apply the First Amendment to the states is because of the Fourteenth Amendment's due process clause - an application that is not at all evident from the text of the Fourteenth Amendment.

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).

I'm not saying that the decision to apply the free speech clause to public schools is wrong. I'm saying that the frequent contributor's analysis condemning Thomas' position as incompatible with his strict constructionist leanings is laughably superficial.

Law is complex. Can our laws be simplified? Yes. Should they be? Yes, in many case. But this isn't achieved by oversimplifying the underlying issues.

Re:A Little Knowledge is a Dangerous Thing

[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 law which shall abridge the privileges or immunities of citizens of the United States;
Implies that States don't have to abide by 1st amendment?

Re:A Little Knowledge is a Dangerous Thing

[sed quid in infernos]

That's what happens when you ratify the Constitution, you agree to the limitations set forth. I'm not sure what your point is here. Of course the ratification of the Constitution means agreement with the limitations set forth therein. That's not in question. What is in question is the extent of those limitations and how that extent is determined. The person who wrote this article made a nonsensical criticism of Thomas' views on the first amendment's application to high schools. There are many reasons to disagree with Thomas' views on the subject; strict constructionism isn't one of them.

Btw, what part of No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; Implies that States don't have to abide by 1st amendment? What part of "privileges or immunities of citizens of the United States" implies that the first amendment freedoms are contained therein using a strict constructionist methodology? The first amendment simply restricts certain actions of Congress. Once again, I am not advocating Thomas' position in this matter. I'm saying the specific criticism of Thomas' position set forth in the article oversimplifies a complex issue.

Re:A Little Knowledge is a Dangerous Thing

[Beyond_GoodandEvil]

The first amendment simply restricts certain actions of Congress.
Yes, and the 14th amendment states "privileges or immunities". So with the text of the 1st amendment stating, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech," The part in bold is one of those pesky privileges that states cannot pass a law to abridge. It doesn't get anymore strict constructionist than that. Unless, there's a different part of the US Constituiton labeled priviledges and immunities, and you believe that using a strict constructionist view the states are free to assign titles of nobility and pass ex post facto laws as well.

This is a great idea because...

[sarysa]

...then new laws would never get passed.

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.

Software isn't the real world

[jackjjordan]

I feel like you are saying "hey we do this for software and it works so why not do it for the real world" Software is complex, but not nearly as complex as the real world. It is actually pretty amazing how well our system does in a country of 300 million people. Most of the problems seem to be opinion or resource related. People feel laws are too strict/not strict enough, should exist/shouldn't - or there are not enough resources to enforce them.

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 mention user feedback. This is the same mistake a lot of cathedral software companies make: maybe they get some user input for the requirements, maybe they take user feedback after the project is released, but the rest of the design work and implementation are done in a vacuum.

The ideal solution!

[slawo]

I agree on your process!

When can I vote for you?

Too much cooperation is the problem

[Anonymous Coward]

one of the posters mentioned that congress was constructed to be planned gridlock. This was so that very few laws would be made at this level. By the time they got to this level all the people would agree that there is a problem and that there is consensus on the solution. It had been tested in all kinds of local settings so that by the time it went national all the bugs had been worked out.
Instead congress has been streamlined and bad national laws are churned out rapidly with no sunset clauses. this is a result of the civil war. the civil war was actually about who had the power ....states or the federal govt.
Slavery was a side issue dealing mainly about money. It's cheaper to use slaves and the south was getting richer using them.

Nice idea...if those in power care about citizens

[jbeach]

Pardon my cynicism, but those in power don't tend to really give a crap about what's good for citizens or what they want. To manage a smooth society, they have to make sure the classes under them are happy - but it is far from their first concern. Their first concern is to make *their* bosses happy.

And the overall purpose of laws is to tell citizens what to do, for the benefit of those in power. And those in power are both formal officials and those in the same social / economic class. So, one thing the rulers of *any* society absolutely do not want, is their laws to be vetted and determined by those who are *not* in their class, such as the other 98% of that population.

So, an inefficient law-creation process with no adequate testing period or prior review by those who'd be subject to the laws, and as much of a lack of involvement with the subjects as possible, is kind of how the rulers of any nation like it. And, although we do live in a democracy, our leaders do have that tendency as well.

Case in point: NAFTA. That bill was practically hidden from the citizens by both the direct rulers in D.C. *and* the media, before it was passed. This was because they all knew it was to *their* benefit as rulers, and straight talk about it's intentions and it's likely effects on the working class would keep it from being passed. This was *both* Democrats and Republicans, working together for their social / economic class. Joining hands across the aisle, in the true spirit of bipartisanship: shafting the US working class.

As for how the media is involved in this, it doesn't require conspiracy at all; the media is run by wealthy people, and wealthy people, like all people, will not spread information that is not in their perceived best interest. No conspiracy required, just interests in common.

This sort of law review is still a great idea. But it or something like it will probably have to be done by private citizens. It could be done in just such a way as this article describes, perhaps by a "Consumer Reports" type of situation. And perhaps with sufficient economic modeling algorithms, it could end up being a useful tool for the ruling class at well - allowing some laws which actually do benefit citizens to at least be less watered down by the time they emerge from D.C.

Let me get this straight...

[Anonymous Coward]

You want to improve the quality of the way something is done, and you're looking to the way we write software as a model?

OMG teh Legal Sytem Just Crashed.

[jameskojiro]

So if you blue screen the legal system will a core memory Dump cause all convicts to be released?

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

Each built upon the ones above it.

Maybe we can wipe our hard drive and Install Linux, where do we go to open souce our Legislative Branch?

Re:OMG teh Legal Sytem Just Crashed.

[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 politicians have the guts to actually admit that they've noticed it - probably because they're afraid that the first one to point it out will be given a shovel and told that since they mentioned it, they can clean up after it.

Oh, and the emperor - he has no clothes either.

Re:OMG teh Legal Sytem Just Crashed.

[jameskojiro]

/*

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 politicians have the guts to actually admit that they've noticed it - probably because they're afraid that the first one to point it out will be given a shovel and told that since they mentioned it, they can clean up after it.

Oh, and the emperor - he has no clothes either. Now that you mention it, doing anything in Vista is like going through airport security.

You are going to be boarding a plane, Do you want to continue? (y/n)

They want to check your luggage. (allow/deny)

Bend over for full body cavity search (allow all/allow once)

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 succeed by producing the most laws for the lowest cost. The quality of the laws is serious issue and I'm disappointed (though not actually surprised) to see so many people dismiss it as "too hard".

I guess that's the answer to most things today -- it's "too hard" so we might as well just stall out right here and forego progress.

Cheers.

Re:Nice idea...if those in power care about citize

[jbeach]

Supreme executive power derives from a mandate from the masses, not from some - not some farcical aquatic ceremony!

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 ethical environments.

TFA is advocating certainty in law. This is a perfectly valid viewpoint, but you must acknowledge what is being lost. Courts will not be able to handle new technologies, new cultural interactions, or changing social standards. Currently, the courts provide a very cheap way to keep laws up-to-date. If you want to have this process operate as the sole means of progressing the law, then expect to be pouring huge amounts of money into the civil service.

Also, this flies in the face of common law systems such as that used in the UK. This is a system which has proven so resilient to abuse that former British colonies such as Jamaica still use the common law of England and Wales to settle many legal disputes. (e.g. R v Beckford 1988). While there are many arguments against Common Law systems, it has proven to be fairly sustainable in England's case, and I would suggest reading more about those.

To paraphrase Sir Winston Churchill, "Common law is the worst possible legal system, with the exception of all the other systems which have been tried from time to time."

Overall, this article looks, smells and tastes like someone writing about a topic they don't really understand. I don't mean any offense by this, but I do recommend reading some books on political and legal theory before suggesting a radical overhaul of the world's legal structure.

The courts exist to make money for lawyers

[dloyer]

If you are ever sued, you will learn that the courts exist for one reason, and one reason only.... To make money for lawyers. It is a process that is amazingly optimized and efficient for this purpose.

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

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 back of Black's Law Dictionary. There you'll find a collection of legal canons, generally Latin phrases that are supposed to illuminate how to think about the law. Judges and lawyers sometimes use these as grasping-straws... the problem with adages like these is that there's always one that fits, no matter which side you're on. So another reference is in order - this one's a classic, a fun and depressing read: Karl N. Llewellyn, Remarks on the Theory of Appellate Decision & the Rules or Canons About How Statutes are to Be Construed, 5 Green Bag 2d 297 (2002) [Originally published at 3 Vand. L. Rev. 395 (1950)]. Notice the date. People have been frustrated with this stuff for a *long* time.

Second, reemul is on the right track IMO:
http://developers.slashdot.org/comments.pl?sid=449194&cid=22380198

Better oversight *by the public* solves a lot of problems, and this might be one of the first. At the risk of sounding like a shill, take a look at Obama's tech positions. (Come on, you know you want to, he got opinions from Lessig...)

Re:Arrgh...

[vertinox]

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

Reflective Equilibrium

[Otto_Von_Toronto]

This idea is pretty close to John Rawl's reflective equilibrium. The idea that a law derives its legality and force from what a group of rational beings would consent to is a powerful and great idea. Supposedly our current system does work this way, or at least isn't opposed to it, but a great deal hinges upon what we consider "rational" to mean.

The courts exist to make money for lawyers

[dloyer]

The courts stated purpose is to settle disputes, but it does not do that. Instead it serves to create more disputes. It's real purpose is to make money for lawyers. That, it does with amazing efficency. It is a process that is highly optimized. This is what happens when you let lawyers make the rules. Dont ever sell your home to a lawyer. You cant aford to.

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.

Re:A grave misunderstanding

[magarity]

as consistency in law is the root of all tyranny
 
It would seem that INconsistency in the law is the root of all tyranny. The tyrant and his cohorts get exceptions to escape consequences while everyone else gets exceptionally strong consequences. This is the kind of thing that the Magna Carta tried to level out and is a cornerstone of western democracies that everyone from the King on down is supposed to be equal under the law. It isn't perfect in practice but is a lot better than places where there is only the thinnest pretense of equality. interestingly, the worst offenders do so in the name of Marxism, supposedly the great equalizer. See any state where the ruling single party or cabal is unaccountable to the law (most former Soviet bloc nations, most of Africa, Asia, South America) while what passes for law is applied heavy handedly to the general populace.

Re:A grave misunderstanding

[Anonymous Coward]

To reiterate, the Constitution is a sort of a treaty between the States.

I'm going to have to take some points off for this one. The Constitution starts with "We, the people" for a reason.

blah blah blah natural rights blah blah blah John Locke blah blah blah social contract

Start with requirements, not coding

[qaseqase]

I hope your software development lifecycle doesn't start with coding.

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 example -- the laws come down to a categorical ban based on things like the shape of the buttstock, or the shape of the muzzle, or the brand and model name. Why? Because there is no such thing as an "assault weapon". That term is an epithet, nothing more. It is loaded with negative semantic cache -- thus the bans engender overwhelming popular support -- but it utterly lacks logical foundation. My grandfather's M1 Garand is a lot deadlier than my father's AR-15, but it has a beautiful walnut stock, thus it is a "proud historical relic" not a "scary assault weapon". The aesthetic has chosen.

Now, rinse and repeat for every aspect of society. Free healthcare? Sure! Mandatory air bags? Why not? Abortions for some, tiny American flags for others!

No law can be smarter than its author. Laws are written by stupid people, therefore the laws are stupid. Q.E.D.

Re:Laws are vague because people don't use logic

[Anonymous Coward]

My grandfather's M1 Garand is a lot deadlier than my father's AR-15, but it has a beautiful walnut stock, thus it is a "proud historical relic" not a "scary assault weapon".

Yeah, right. Why is the US military then not using the M1 (or a gun derived from it, like the M-14)?

You're tacitly assuming that how "deadly" a weapon is is a function of how powerful its catridge is (.308 vs. .223). That's a bad assumption. How dangerous a gun is to the public at large is a function of how effective it is to use it to kill people. While you don't have to agree that all of the provisions of the Assault Weapons Ban made sense (I certainly don't), you distort it grossly by saying that all of the features banned were "esthetic":

1. High capacity magazines
2. Flash suppressors
3. Telescoping or folding stocks

Again, you may argue the details, but it's clear that the goal was to ban firearms that were specifically designed for combat, based on the set of features that contemporary military weapons include.

Re:Laws are vague because people don't use logic

[hypnagogue]

Yeah, right. Why is the US military then not using the M1 (or a gun derived from it, like the M-14)?

Weight was the primary argument in favor. The "new" military focuses on mobility, not firepower.

1. High capacity magazines

Red herring. A banned weapon with a low capacity magazine -- or no magazine at all -- is still banned. On the contrary, the semi-automatic Ruger Mini-14 chambered in .223 can also use a 30 round detachable magazine; yet it's not banned. Why? For aesthetic reasons -- it looks like a boring old varmint rifle (which is exactly was it is).

2. Flash suppressors

How is a flash suppressor a danger to anyone? Because it was a feature of the specific models of guns the politicians were targeting for aesthetic reasons. (Same for bayonet lugs. When has a bayonet been used in a crime?)

3. Telescoping or folding stocks

Telescoping stocks are of great value to women. So why outlaw them? So that women will not be able use guns? (Interesting premise -- equal protection clause violation...) No, they were outlawed because they "look" military.

US legislation product I'd like to see but...

[CFBMoo1]

.. probably never will is Duke Balance Budget'm Forever.

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 possibly read before signing off on.

If we enacted just these two rules (applying the sunset 10 years from today to all existing laws), we could fix a lot of what's wrong with the country today.

Hehe.

[Anonymous Coward]

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?

This argument becomes stronger when you see it in the light of Wittgenstein's so-called Private Language Argument, that it is impossible for a person to invent a word that refers to a private sensation of theirs and only they can understand, because the person has no criterion at any time whether the term has been used correctly: there is no way he or she could know, at any time in the future, whether the sensation that he labels using the "private" word is the same as before, precisely because the way he or she applies the word may be inconsistent, and change over time.

The deeper point (also from Wittgenstein) is that a rule can never tell you how it is to be applied in every case. This is the very basic flaw in the article's reasoning--that the desire to have laws that are "unambiguous" is a pipe dream. The other flaw is the ahistorical, asocial perspective that your comment hints at--laws are interpreted by people who live in a changing society.

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're still required to follow it or risk the consequences.

This is a natural failing when most of the people creating a product are experts, with nobody specifically concerned about making things easy for laymen to understand. At least in the computer industry we now have more accessible options than "man grep", but in legislation there's no financial incentive and seemingly little social incentive to make the same improvements. As we can see in the above article (which, no, I didn't finish...) even the most well-meaning reformers may not see brevity as a necessary part of reform. ;-)

Being too brief can have it's own problems (we've been arguing about the intent behind "well-organized militia" for how long now?) but there's got to be some way to get the best of both worlds, with layers from terse statements of principles all the way down to nitpicking applications to case studies.

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...,

Ah the irony...

[Anonymous Coward]

This is the same excuse to roll out shoddy software.. It sorta works, so its good enough? I guess for those who say "good enough for who its for" deserve this, but I have higher expectations of both my professional life and my democracy than that!

Federation

[Anonymous Coward]

Isn't the the point of America's federated system of government anyways? Let the states "beta" laws, and the Federal Government adopts the ones that work? California's clean air laws prompting the creation of the EPA is a great example.

Unit Tests

[Botia]

All I have to say is write unit tests for laws. Anyone for starting up lUnit?

FOSS Reality Check

[Anonymous Coward]

The essay writer's idea is great except that the real world doesn't work that way. There is much more power in ambiguity for the establishment (who officially interpret and enforce the law) and cunning participants (who game the law to their advantage). The rest of us don;t have the power to change this and IF WE DID, we would become just like them. That's the way the world works(c).

The FOSS advocates should keep this in mind and reflect on what the mainstreaming of FOSS has brought us like Miguel, the OLPC vs. Intel, and Novell to name a few.

"We have met the enemy and they is us." -- Pogo

Oooo! My captcha is 'respect" -- I feel like Aretha Franklin!

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 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 solution which is agreed on in general outline from being adopted; Madison himself, IIRC, referred to both in relation to Constitutional provisions needing the resolution of future generations in specific instances, through the Courts and otherwise.

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.

Most of your complaints here are about civil law and civil procedure, but "void for vagueness" is, as the definition you link points out, a specific application of Constitutional protections that applies in the domain of criminal law.

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.

Yes, and when you manage to understand the reason, you'll at least have a chance of being able to make an intelligent case about whether or not its a good reason and whether other concerns override it.

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.

Court rulings applying a statute are part of the law. Case law is law. In fact, its most of what the study of law focuses on.

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).

Yes, surprisingly enough, determining the state of the law requires referencing all of the applicable law, not just one particular piece of it.

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.

And law is complex because the nuances of human interactions and the wide range of factors that play into whether society views a particular act as desirable or undesirable (and, if the latter, a particular consequence as warranted or unwarranted) are complex.

Lawyers also have to learn a lot of complex procedures, but not as complex as brain surgery;

You don't seem to understand what lawyers do very well, and without both a firm grasp of that and a firm grasp of brain surgery, you don't seem qualified to make that assessment.

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)

See, here's what you don't understand. Its not a matter of passively guessing how the judge is going to apply the law to the facts in isolation, where the attorney acts as some kind of detached prognosticator. What a lawyer does is, having researched the applicab

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 means the amount you're suing for. So if you sued for 2k, the amount in controversy is 2k, even if the judge awards you 1200.
3) Small claims court is intended to allow easier access to courts and speedy resolutions with an acknowledged sacrifice of consistency and procedural fairness. The idea is that there are lots of claims that are two small to justify the expense and delay of filing in a "regular" court but that we want people to be able to resolve. Good news for the author though. If he really wants to, he can make a federal case out of this. Because the law authorizing statutory damages is federal, he can file these suits in federal court.
4) Juries largely serve the purpose that the author's proposal purports to. However the law defines "spam", it will almost certainly be a jury question as to whether the communications at issue were in fact spam.

But, the big problem with this proposal is that it's incredibly impractical for the law to operate at that level of specificity. For example, what happens when the spammers start sending emails with no subject? Can you accurately describe every possible form of fraud? We make laws that are "ambiguous" because we need them to cover all the behavior that we're targeting. We rely on judges and juries to apply the laws in a manner consistent with the intent of the legislature. It's not a perfect system, and there's probably always room to make laws that are less ambiguous but still sufficiently general. However, the level of specificity that the author is proposing would drown us in laws and still leave big loopholes.

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 may reverse their earlier opinions and agree with the lone justicices interpretation. This happens all the time in any congregation of experts. Someone notices one thing, someone else notices something else, and so on, and a dialogue that attempts to emcompass the value that all of those invovled bring the table ensues.

Asking people to reach _exactly_ the same conclusion before hand with unanimity is ridiculous, as it would only work if people had identical observational and reasoning capabilities.

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.

Regulations are often made in this manner

[d80god]

Many jurisdictions utilize some form of agency regulations to expound upon statutes that are passed by legislatures. Therefore, ambiguity in the statutory text can be resolved when an agency makes a decision one way or the other. Additionally, a large number of regulations, at least in the federal arena, are written using a "notice and comment" procedure, which allows an agency to issue a draft and receive public feedback regarding, among other things, these types of interpretive problems. The agency can then choose to address these comments before issuing a final regulation.

Depends on what the definition of "is" is.

[doug141]

The people who want to read around laws will always try to. These people will be kept in check by juries, not by differently written laws.

Better Idea

[mfh]

Throw out all law, and stop being idiots. Instead, be Excellent to One Another, like Bill & Ted.

A Simple Solution

[Anonymous Coward]

How about a law/rule that simply required all legislators to swear, under oath, that they had personally read and understood the ENTIRE text of any legislation before allowing them to vote on it? Result: less legislation or smarter congress-critters, either of which is a good thing.

Good idea but

[Vexor]

remind me to stay off the test server.

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.

wheel, v. 2.0

[dylanr]

It already works this way in the US, mostly. Laws are debated and passed in legislative bodies where procedures are often opaque. But laws are mostly symbolism. The real action is in regulations.

US regulations are, by and large, subject to a proposal and review cycle so that those who seek to understand what is going on have an opportunity to present input and feedback before rules are finalized and take effect.

Reasonable people can disagree

[greenfield]

Haselton's thesis is interesting, but it fails to acknowledge that perfectly reasonable and intelligent people can disagree about their interpretation of a law or policy. This is why different judges will have different opinions of the same law. It doesn't necessarily mean that the law itself is broken. Haselton appears to have an idealized view of the universe where people are as simply unchanging finite state automata and English is a language that is never open to interpretation. Incidentally, while his rant against common law is cute, I much prefer a system where every single action I can or cannot take does not have to be codified into written law.

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.

Beta = Excuses for incompetence

[syousef]

I'm sorry your spouse and 3423 other people were in prisoned wrongfully. The law was a good idea so we decided to release it in beta. We just got the wording a little wrong. We promise we'll fix it by the time it's properly released. We know this won't help your spouse or those other people but no one else will be wrongfully imprisoned and no criminals will go free so you should feel good about our progressive society.

Vague vs General, Precise vs Specific

[Pfhorrest]

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. Not so. There is a difference between a law (or any statement being) being vague (unclear, imprecise, subject to multiple interpretations) and a law being general (broad, non-specific, applicable to many different situations). The former is bad, as is the OPs point; the latter is good, as is your point.

A good way to express this for the Slashdot crowd would be to say that the laws of man should be like the laws of physics. A sentence describing the law of gravity is extremely, even mathematically precise, but also incredibly broad, applying to everything in the universe from a speck of dust to galactic superclusters. A good man-made law should be like that as well; simple, elegant, far-reaching and unambiguous.

think "FDA"

[nguy]

I would treat a new law less like a software release and more like a drug: its approval should be based on evidence for safety and effectiveness, and it should be monitored even after it becomes effective.

However, laws are made by politicians, and there's an entirely different set of constrains on them. Politicians often like laws to be somewhat vague and leave the hard choices to the courts.

Revert

[Atroxodisse]

Mostly I would want a revert command.

Laws make $ for lawyers

[rlglende]

Every time a law is passed, it carves off a slice of the GDP for the legal profession: more lawyers, more prosecutors, more judges.

Thus, any reform that eliminates or simplifies laws will fail.

Thus, the collapse of the entire edifice is the only way forward. Cooperating with a dysfunctional system is the fastest way to bring it down.

Lew

interesting take on the law...

[Anonymous Coward]

How is it possible for any group of people, large or small to agree on *the* meaning of a law? Many legal scholars I've encountered discount this kind of "transparent" account of legal language and language since it doesn't align with the "reality" of language (a reality which, like science and the law, humans construct linguistically). The "transparent" account of language (espoused in the initial post) goes something like this: words communicate "information" or "content" or "meaning" - rhetoric (or an equivalent concept) can obscure information/meaning, etc. because "reality" and facts are more important than "words." What this formulation ignores is that language is not *transparent* - words never have one meaning, and are always joined with other words in sentences, paragraphs, etc. that operate in a particular context (so dictionary definitions are always inadequate in some way). So, even after three stages of vetting, laws will still be ambiguous and open to interpretation. The nature of laws' ambiguity and the possible meanings of words in laws will also change over time.

(Supposedly) eliminating ambiguity in laws would also hamper our sense that we can change laws in the future - if everyone is clear on what a law means (which would never happen), why shouldn't we be able to figure out how to make it "mean something better" in the future?

Neither science nor the law operates off of literal rules: all we "know" about science and the law is mediated through our language, which is never "neutral" or "impartial." We can attempt to make our language "balanced" by tempering any particular perspective with a contradictory perspective, but even this tempering cannot approach the "neutral/impartial" ideal.

So, "fetish-izing" science as the supreme method, especially insofar as it involves bashing fields like the humanities (or law), is unnecessary. Productive engagement between various academic disciplines only comes through collaboration, not through cheap sniping (which is *not* in the original post) about how things like English and rhetoric don't matter, or through trying to export the purported objectivity of science to domains like law. Law, English, etc. have something to learn from science, but science also might also have something to learn from folks that don't specialize in the realm of the "certain."

Pro tip

[Estanislao Mart�nez]

Vague allusions to Gödel's Incompleteness Theorems will only lead you to being mocked by people who understand them. Now, with that out of the way...

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.

Gödel's theorems don't say that. The theorem is not about consistency of axiomatic systems in general, it's about whether arithmetic (one specific axiomatic system) is complete. An axiomatic system is complete, in short, if its all of its theorems are true in all of the models for its language, and all of the statements true in all of its models are provable as theorems. Additionally, Gödel's theorems show that no consistent axiomatic system can prove its own consistency--you need to prove it "from the outside," so to speak.

Note that:

1. Arithmetic is a consistent axiomatic system.
2. Just because arithmetic is incomplete, doesn't mean all other axiomatic systems are so. First order logic is complete (a proof that we owe, ironically enough, to Gödel.)

If you want to cite some supar-intellectual thinker thing that's relevant to this, I recommend Wittgenstein.

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 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,

Try an Agile SLDC variant rather than waterfall

[Precipitous]

Of course, it's always entertaining to imagine how much better I could run the country. If you were going to pick an SLDC as a hypothetical model, I would prefer models based on Agile Principles, perhaps with some scrum. These would also address the concern of time. Some of the characteristics of such a system might be:

• The congress (as product owners) defines the intent (e.g. User Stories) and acceptance cases in brief non-technical terms. Perhaps the full congress must ratifies this brief statement of intent before some comittee continues to work out the details.
• QA moves upstream: There is immediate (judicial) review that validate that legislation meets its intent, does not violate the constitution and so forth. I don't ship incomplete features, congress doesn't ship bad legislation. No easter eggs in software or legislation. Some control that ear-marks are in line with the intent of an appropriations bill, and so forth. :)
• Remember who the "customer" of legislation is - "for the people". I preview my software very early on to ensure it works. Perhaps face to face demonstration and explanation of legislation to stake holders becomes required. For example, city lawmakers wishing to criminalize sleeping in public places would have discuss with stakeholders (the homeless) how to make this legislation workable. We can have fun with this one :)
• Congress might also set some high level acceptance cases for all legislation, which must be met. Beyond constitutionality, they might demand that all legislation is budge neutral.
• Anyone can submit to the backlog. An initiative process would differ and be lighter weight: Initiatives might mandate the acceptance cases, binding professional lawmakers to create legislation within those parameters.
• Prototype and pilot legislation. Perhaps congress could find volunteers among states to assist in this. Texas might like no child left behind, but Oregon thinks it has serious unresolved problems.
• Ranked priority for legislation. Congress prioritizes their issues and must pass the laws in order of priority. No holding that hard budget bill to the last minute.
• Direct quote from agile manifesto:
  Simplicity--the art of maximizing the amount of work not done--is essential.

Signal Processing and the Law

[honestas]

I disagree with the essay. The strength of the U.S. common law system, as other posters have noted, is the latitude of a judge to adjust the law to fit unexpected facts and circumstances (and no two cases are ever the same). Justice is a human endeavor, and justice requires a human in the loop. When interpreting law, there is a trade-off between rigid consistency and less-clear adaptability. Our forefathers wisely designed an adaptable system.

Incidentally, I read thousands of cases in law school, and I often marveled how our political system is so well tuned. We react to long term social problems after great deal of debate. We respond to immediate threats quite quickly.

Since the poster attempted to apply software engineering to the legal system, please allow me to indulge. I will attempt to describe the political process in terms of frequency response...

The will of the populace is the input force to the political system.

This input force comprises two components, we the people, and we the lobbyists.

The Executive Branch has a very high frequency response.

The legislature has a medium frequency response.

The supreme court lags behind with a low frequency response and a 180 degree phase shift.

Yes, Nothing will change

[bussdriver]

There are good lawsuits and the threat of lawsuit also does good. Many worthwhile lawsuits are forfeit or lost because the good guys are out gunned. Tort reform in recent years has been more about protecting powerful and corrupt lobbyists paying for "reform" (if not writing the "reforms" themselves.)

PLEASE look beyond talking points, our medical costs are not the result of lawsuits; the real reason the system is failing apart is irresponsible lazy citizens who can't look out for their own interests (which is one way to evaluate those who are elected...)

Lawyers are not bad people it is just the bad ones that make the other 5% look bad.

Development life cycle

[Anonymous Coward]

And all this time I thought the development live cycle started with the business requirements, rather than developers going in and hacking code?

There Oughta Be A Law...

[ml10422]

Jeeminy, Taco. There oughta be a law against being so wordy.

Flawed

[madshot]

Do you really think politicians are going to want to beta test a tax hike? or beta test what if scenarios if they write a law for spending money on a new foot bridge? Imagine if they beta tested a reduction in the police force in Philadelphia which had more than 300 homicides last year. And if they Beta Tested a law for more photo radar machines to send you speeding tickets? Why would they want to beta test that, they all want our money right now.

jurisprudence

[miruku]

just commenting with the above title so that people who use the proper term for this area of life get a google result for this article.