The great Judge Learned Hand once said:
There is something monstrous in commands couched in invented and unfamiliar language; an alien master is the worst of all. The language of the law must not be foreign to the ears of those who are to obey it.
The language of law must also not be foreign to the eyes that read it and perhaps the greatest offender of this principle is the contract. So how can we make the language of contracts more simple? More accessible? The Reinvent Law conference last week highlighted two ways, both of which focus on variations of readability.
For People: Simplifying Contracts
When Abe Geiger, the founder and CEO of Shake, took the stage at Reinvent, he described his company’s work as “tiny law.” By this, he meant that Shake is providing people with tools to leverage the power and protection of contract law without an attorney. While this may seem to undermine attorney work, Shake aims to serve the latent market, one which is arguably too small to be tapped by individuals or law firms, but is better served by simple and intuitive software solutions. Put more eloquently, Shake’s website explains:
Our mission is to make the law accessible, understandable and affordable for consumers and small businesses. We want to empower our users to share ideas, goods, and services without the fear of being stiffed for a freelance gig or putting their business at risk.
One of the key words in this statement of purpose is “understandable.” To make contracts more understandable, Shake tries to provide contracts to users in plain English, rather than legalese (hereinafter, hereinabove, hereinbefore, heretofore, thereunder, thereunto, thereabout, whensoever, wheresoever, whereupon, etc.). This not only makes contracts more readable, but makes them more accessible. This accessibility ultimately serves Shake’s purpose to prevent the average consumer in the sharing, consumer-to-consumer economy to, in the words of Mr. Geiger, “not get screwed.” Democratization at its finest.
For Machines: Coding Contracts
Harry Surden, law professor at the University of Colorado-Boulder, had a different take on contractual readability. Rather than simplifying contracts for people, Professor Surden’s work focuses on simplifying contracts for computers. Machine-readable or computer-oriented data is language that can be read by a computer. Of course, computers do not “read” or process data in the same way humans do. This creates several hurdles (abstraction, file type, natural language processing, etc.) that must be overcome for a computer to read even the simplest of documents. Naturally, legal documents, which are often written unnaturally, present particularly steep challenges for computers, i.e. legal language processing.
To overcome these barriers, computable contracts must be re-oriented. For example, rather than expressing an expiration date as “January 1, 2015,” a computable contract might express that date as “<option_expiration_date:01/01/2015>”. By translating semantic terms and provisions to data-oriented heuristics, organizations employing automated contracts may benefit from reduced transaction costs, new properties for contractual analysis, and autonomous computer-to-computer contracting. For more on computable contracts, see Harry Surden, Computable Contracts, 46 U.C. Davis L. Rev. 629 (2012).
I don’t know if Judge Hand, in all of his wisdom, could have anticipated a mobile-based contracting application (much less a cell phone) or computable contract. But hopefully these developments will combat the “unfamiliar language” of contract law, if not entirely for people, than at least for the tools that we use.