This is not a bad idea, but I would add that I think a better idea is that abuse of the patent system (resubmitting patents over and over with slight modifications to gain approval [0], non-producing entities engaging in jurisdiction-swapping [1], etc) need to be confronted immediately by judges or individuals with the spectre of sanction and disbarment by local and state bar associations boards of professional conduct (EDIT: I am generally against an activist judiciary but, this is certainly an area where such activism has sufficient merit).
This can happen right now. You don't have to wait for political reform or constitutional amendments. Disbar the people who are responsible for abuse. Then let the system work. Bar associations feel local pressure. They respond to it immediately, on the the timescale of months, not years. Remove the financial incentive to file obviously frivolous[2] suits, and the problem will go away. If the trolls can't find anyone reputable to represent them, we all win.
Why blame lawyers for the instructions and aims of their clients in engaging in litigation?
It is up to the courts to judge the legitimacy of a claim on its merits, not bar associations to determine that someone is unfit to practice purely on the basis that they represent a client with an apparently legitimate claim.
Because lawyers are allegedly trained, ethical professionals that are granted a unique license in every jurisdiction to exclude nonprofessionals? A nearly universal aspect of most bar associations (ABA, state, local) is a statement of professional conduct requiring members provide competent representation.
Are you saying that these NPE patent portfolio trolls have legitimate claims and that nearly everyone else is wrong or are you saying that patent/IP lawyers lack the competency to recognize patents that are junk prima facia and advise accordingly? In case you are not following recent events, most of the activity of NPE trolls happens outside the courts because the attorneys involved know full well their paper is worthless inside. So they target precisely those firms who cannot afford protracted legal proceedings and avoid those that can. This is not professional conduct and if it is, the profession has the wrong name.
Their clients will not sue for malpractice because they are benefitting. Judicial sanctions are not an option for activity that occurs outside of any proceeding. Where is the control and check on such clearly unprofessional behavior, the only defense for which is that it generates income, if not the body responsible for policing its own conduct?
The standard for claims is that they must have some basis in law and fact or on some non-trivial argument for changing the law. Most troll claims are well inside that boundary, given duly issued patents and non-spurious allegations of technical infringement.
Just because you think the troll claims are clearly invalid under existing law does not make them so. The law is arguably far too broad, but if there is a duly issued patent, thats all the "basis" in the law that is necessary. If that results in a lot of what you consider trivial cases, the fault is the law.
Let's say I have a patent for rotating the image displayed on a homepage [0]. You are trying with a straight face to tell us that there is any valid belief that this is an enforceable patent other than the incomprehensible fact that it was granted?
And further, if you do provide competent representation and advise me that this patent is basically null if it gets challenged, present me with the obvious prior art, etc then you believe (again with a straight face) that it is ethical behavior to, on my behalf, threaten another party unless payment is made with legal action representing what you know to be false to that party and more importantly having no legal basis for a positive outcome in any legal proceeding?
There is always room for improving statutes as no crafted law is a perfect instrument. It is clear to everyone by now that the simple existence of a duly issued patent should not be considered on its own as a valid basis for litigation. And, for the most part abuses are taking place outside of judicial purview or being forum shopped to certain favorable jurisdictions. I take issue with the ethical lapses having no consequence, and am advocating for self-correcting behavior by the very body that has that task.
They are not providing competent representation which is the very basis on which bar associations are founded. I understand your cynicism but can not share it and also have any hope of a reasonable outcome to this game being played. If the rules cannot change and they want to continue to milk the cow without killing it, they need to reel in the bad actors. They have the authority and moral imperative to do so.
The patent cited in [0] was filed in 2000, rejected and resubmitted multiple times with minor modifications over the course of 5 years until they found an examiner to accept it. It was a not insignificant patent and has been used recently in a very important case every reader of hn followed.
This application was a continuation of U.S. application Ser. No. 11/000,413, filed on Dec. 1, 2004, which was a continuation of U.S. application Ser. No. 09/478,009, filed on Jan. 5, 2000, now U.S. Pat. No. 6,847,959, issued Jan. 25, 2005.
Sorry it wasn't clear, there is no good way I know to "diff" or show you the history provided by the uspto interface. There may be better secondary sources, I know at least one nytimes journalist was asking questions about it.
What's incompetent about that representation? And also, there's nothing at all unusual about filing continuations. I'm not gonna try to dig into the file history on my phone, but I'd be surprised if there's anything at all remarkable about this case--amendments, continuations, and (presumably) RCEs are absolutely par for the course.
I'm a lawyer, but not an AI engineer. It seems to me that we do not have an AI good enough to analyze, that is apply a given set of rules to a unique situation. As far as I know, the current state of the art of AI is merely algorithmic pattern recognition. This would not be good enough to replace a lawyer.
Also, some quibbles about the article. Anything one writes, such as a contract or blog post, is automatically granted a copyright. Also, the blogger seems to think contracts are some sort of public reference like a statute. They are not. While you can find form books (private), contracts are drafted by lawyers for their clients and are private property.
The author's one interesting idea is a software-type patent on contract clauses. If you could patent, say a non-compete clause, well, that would certainly transform the legal world. I don't think it is feasible, though, and shows the folly of software patents.
These are very good points. Computer assisted legal analysis would be a big win in terms of cost, efficiency and accuracy. And it would allow lawyers to spend more of their time being productive in highly creative and impactful ways.
For example, if a lawyer knows which arguments have the highest probability of success, she can focus on framing the facts of her case in the way that best supports those arguments. A system that does this would not replace lawyers - but would assist them in some very important tasks - and would be a big step forward.
I also believe these technologies are inevitable, and (plug) at http://www.judicata.com we are working to make that vision a reality.
"I don't think it is feasible, though, and shows the folly of software patents."
INAL. But I'm curious. In the movies, there's always some obscure precedent that swings the case one way or another. Now in this example of attempting the copyright a clause in a contract, is there a possibility that any ruling ( one way or another ) would create a precedent that could be applied in software patent cases?
If a case like this did occur, and a judge ruled that clauses in contracts can not be copyrighted, what would his argument look like. And would it be specific enough to exclude software patents.
You know how annoying Star Trek is to physicists? Or how Hackers was a riot because of how hilariously wrong it got ... well ... everything that matters?
Yeah. So. That's what this reads like to anyone who's studied the Common law.
I used to think expert systems might be useful for legal situations.
And then ... I studied law.
You know why law is complex? Because of problem domain -- everything humans do -- is complex. Right now a judge is being asked to give a ruling on a particular combination of facts that has never arisen before, ever, in the history of the human race.
It probably belongs to a fuzzy set of existing situations canvassed by cases raised in the past thousand years.
> It probably belongs to a fuzzy set of existing situations canvassed by cases raised in the past thousand years.
Computers own those. Don't write off expert systems because you can't see how you would implement it right now. It would take an unprecedented effort (like apollo mission sized), but we have the means to build legal expert systems available to us today. It's not being done because it wouldn't be immediately profitable, in part due to the bias you expressed.
For every judge with a truly unique case on their docket right now, there are a thousand other judges with wholly predictable and commonplace cases. The law is incredibly complex, but 80% cases don't require any one-of-a-kind judgement. Humans are actually highly predicable in large numbers (just ask Nate Silver).
The idea of using the technology behind IBM's Watson is Hackers level laughable (though I think that was chosen because it's well known). The right tools for this job do exist, the billion dollar problem is getting the right input.
I want to believe it can be done in a single, gigantic project.
It won't happen that way. What will happen is that special purpose systems will nibble at the core of relatively well-settled areas of law. Trusts. Contracts. The bread-and-butter stuff.
Most such disputes never reach the court, because the particular law is so well settled. Party A goes to their lawyer, who can confidently say whether or not they would win in the courts against B. That's the beauty of stare decisis, in the long run it drives down the amount of court time needed for civil disputes.
But:
1. Some people still want their day in court. As a lawyer you are obliged to give your client your utmost efforts, even if they are idiots without a legal leg to stand on. I imagine a lot of them will demand human judgement be used.
2. Hard cases still come up. All the time. More frequently than you imagine. To the point where the Supreme and High Courts of the world turn away far more tricky corner cases than they address.
Whether and how it will happen is a different question from whether it could and should happen. Most legal rules could be vastly improved by reducing them to principles that are combined in a framework of cost/benefit analysis. One of the main reasons that hard cases frequently come up is because the law is, in software terms, extremely buggy. Those "corner cases" are mainly a problem because the law attempts to solve so many problems by partitioning into ad hoc cases.
The law (meaning the courts and the legislative process, as well) is so completely broken that it's hard to imagine a fix actually happening in the US.
As a lawyer and a software engineer, and I know enough about both to say your analogy is bunk. A better software analogy is the universe of Windows drivers. Corner cases come up because there are competing goals (performance, stability, development time, power management, compatibility), diverse stakeholders, unlimited hardware weirdness, etc.
> Most legal rules could be vastly improved by reducing them to principles that are combined in a framework of cost/benefit analysis.
Lawyers already do this. The world is still too complex to reduce to a single, central set of uniform principles. Instead you have lots of little pockets of temporary uniformity.
What happens is:
1. Lots of disconnected cases.
2. One day, a lawyer or judge notices a pattern.
3. A new principle is expounded in a case.
4. Other judges might pick it up and it becomes the common law. Or they don't, and it doesn't.
5. If it's widely accepted, the new principle begins to accrete exceptions, odd outliers, dusty corners and so on.
6. One day, a lawyer or judge notices a pattern ...
You need to stop thinking of law as a product and think of it as a process. It is not a static, manufactured good. It is a procedure for discovery.
>> Most legal rules could be vastly improved by reducing them to principles that are combined in a framework of cost/benefit analysis.
>Lawyers already do this.
I'm not really sure what you mean by this, but how lawyers think about things is not really relevant to legal outcomes. Also, none of the lawyers I know employ anything like the reasoning I have in mind in their work. Finally, if your claim is that the outcomes produced by our byzantine legal system is equivalent to the outcomes that would be produced by a principled approach, then I think you are mistaken.
> You need to stop thinking of law as a product and think of it as a process.
You need to stop assuming that you know what I think :). I don't think it should be static. The law acts to model aspects of the world that society feels should relevant to legal outcomes. The world is far too complicated for that model to be perfect, in my preferred system or yours. So, of course, we will occasionally notice aspects of our world that are not modeled and deserve to be, and there should be a procedure for doing as much.
There are many problem with the process we have in place. First, there aren't clean principles to begin with. The courts are tasked with ruling on the written law, which is highly imperfect. To the extent that the courts "discover" new principles out of the written law, they are effectively writing new law, which in theory isn't their job.
Second, the principles should come before the outcomes. In your flow chart, the outcomes are decided first in a large body of cases and then eventually the pattern is recognized. But the whole point of a principled approach is to improve the quality of outcomes, not just to simplify the description of the poor outcomes that would have been arrived at by judges thinking hard about it.
In general, I think you greatly overestimate the number of principles that would be necessary, in the right framework, to improve the legal system. But I recognize that the onus is on me to back that up and I'm not really in a position to propose a specific alternative system.
I think you are both right to a large extent, and the distinction is whether you are focused on the easy cases, the hard cases, or some point in between.
The repetitiveness in the common law is a massive feature and precedent does make the majority of cases quite predictable. And the outcomes of most cases are very principled - just not always with the hardest cases.
The limitation, though, is in knowing whether the facts push a case in one direction or another. Quality lawyering makes a huge difference there, and it is the lawyer's skill that enables her to figure out how to interpret and shape the facts.
As both of you have essentially noted, there are a potentially infinite number of fact patterns, but a finite set of legal rules, so any system must apply an existing law to a new set of facts from time to time. Whether that is viewed as applying an existing law or creating a new law is in the eye of the beholder, and legislators and judges disagree about that all the time. And whether that is a bug or a feature, is a deeper philosophical question that doesn't get at what an expert system can/will do.
I think the only way you'll get a truly effective expert system for the law is if the software is integrated with the people making the law - the legislatures and the judges. I'm doubtful that will happen. In part, that is because I am doubtful that computer systems will ever be able to decide cases in a way that seems independent, fair and humane to the ones being judged.
Short of that, my own startup (judicata.com) is working on mapping the legal genome so that we can identify the core legal rules, and how they are applied to different fact patterns. We think we can make big strides with legal technology in the coming years. It's not an Apollo level undertaking, but it's a pretty massive undertaking nonetheless. We're hoping that a systematic approach at understanding the law at a deep level of detail will allow us to make some of what has been discussed here a reality.
We have not published much about what we are doing, so I don't have an available link. I would be happy to discuss it on a one-to-one basis over email, though: itai at our domain.
> So, of course, we will occasionally notice aspects of our world that are not modeled and deserve to be, and there should be a procedure for doing as much.
That is exactly what the courts do.
> First, there aren't clean principles to begin with.
Yes, there are. The courts are forever elucidating them, combining them, perfecting them. The legislature periodically replaces them.
> Finally, if your claim is that the outcomes produced by our byzantine legal system is equivalent to the outcomes that would be produced by a principled approach, then I think you are mistaken.
> In general, I think you greatly overestimate the number of principles that would be necessary, in the right framework, to improve the legal system. But I recognize that the onus is on me to back that up and I'm not really in a position to propose a specific alternative system.
Well good news. This has been tried, it's called a "code" or "civil" legal system; as opposed to the byzantine "case" or "common law" system that is used in countries descended from Britain.
And it doesn't make the actual complexity of the real world go away. I'm struggling to convey this point. The law is not complex because of the way the law works. The law is complex because the world is complex.
That is an irreducible complexity that simply cannot be swept away by a single rational system. Even the civil law acquires warts, dusty corners etc and is constantly being altered, tweaked, fiddled with.
You don't realise it, but you have stumbled upon a very old strain of wishful thinking: society seems so irrational, surely we could do a better job if we started from first principles and nutted things out from there.
It has been tried. Many times. By many of the greatest minds that have ever lived.
>> So, of course, we will occasionally notice aspects of our world that are not modeled and deserve to be, and there should be a procedure for doing as much.
> That is exactly what the courts do.
Agreed, common law has this capability. I was challenging what seemed to be your assumption that a principled system wouldn't.
>> First, there aren't clean principles to begin with.
> Yes, there are.
You think the US Code of Laws is clean? The one that, according to Wikipedia, is around 200,000 pages long?
> I'm struggling to convey this point. The law is not complex because of the way the law works.
You've conveyed that opinion quite plainly.
> [Rational rules developed from first principles] has been tried. Many times. By many of the greatest minds that have ever lived.
What super rational system developed from first principles by the greatest minds of all time did you have in mind here? I'm well aware that there are legal systems that aren't based on common law.
Let me ask you this: do you think the staggering complexity of a modern OS is essential complexity? Because I don't. And yet there have been many attempts to reinvent from first principles that have failed to gain traction. Many of them, in a quest for simplicity, were overly simplistic in some regard. This isn't myth busters, though. A couple of examples don't translate to a proof.
Your position seems to be that we've stumbled upon a system of law here that introduces very little accidental complexity and that handles well the essential complexity of the real world. I don't really know how you can have that position if you've had exposure to legal reasoning. Have you studied constitutional law?
> What super rational system developed from first principles by the greatest minds of all time did you have in mind here?
I was referring more to the presumption that all complex systems, everywhere, can be replaced with a positively designed rational system. This is pretty hard to refute amongst the HN crowd because our entire bread and butter is creating positively designed rational systems. It's what we do.
As I said further down, in the limited case of laws, the civil laws have tried to replace a historical patchwork of custom, local rules and decrees by a single, positively designed, single rational system of law.
But this still frequently turns out to be inadequate. Injustices and oddities pile up around a glitch, which is modified in isolation; then more small changes occur, until a new pattern is recognised by the legislature and the code is rewritten.
Sound familiar? It should: in practice the civil law winds up being adaptive, just like the common law. At least the common law doesn't delude itself into thinking the whole thing could be nutted out from the very beginning.
Software engineers should know better. Just look at the archives of the IETF sometime. Here intelligent individuals discuss, design and promulgate the protocols that make the modern world pulse with activity -- the technology that makes it possible for us to retread an argument that is at least several hundred years old.
Yet RFCs are periodically deprecated and replaced with updates. Why? Because of unforeseen circumstances, errors, abuses and so forth. No matter how intelligent the designers, they were simply unable to foresee all the possible cases in advance. And the IETF, like the Common law, places intelligent, localised-to-problem adaptation of existing principles at the centre of its mechanism.
> Your position seems to be that we've stumbled upon a system of law here that introduces very little accidental complexity and that handles well the essential complexity of the real world.
I'm sorry if I gave that impression. The legal system can and does sometimes impose enormous drag. The the extent that laws become onerous and the legal system highly unpredictable, it's necessary to petition to legislature to reform them. Patent law is certainly one such topic.
But the complexity of legal reasoning is not accidental complexity, in the sense Brooks was talking about. It is essential complexity. It exists in the problem domain, which is all relations between human beings.
I agree that any good legal system should have the adaptive quality of common law. I'd agree that the major source of accidental complexity in the law is poorly written laws, but I also think that there is significant room for improving the framework in which laws are written, such that many rules (e.g. the rule against Hearsay) that have lots of explicit exceptions would be better served a simpler framework with a few principles from which the exceptions emerge.
Have you ever written enterprise software? Multiply that by everything.
> It has been tried. Many times. And they have all failed.
See in the most general cases the Cartesian rationalism of the French Revolution and its latter offspring the Russian Revolution. In the less ambitious case, the civil laws of Europe.
You seem to be confusing phenotypic complexity with actual complexity. Software engineering is the quintessential form of complexity reduction, code is never infinite in length. In machine learning you don't even need to come up with the rules, let the machine learn by itself.
Descartes loved reducing the "complex" world to math; Written law has been with humanity since times immemorial in fact being of the fundamentals of society, how is that failure?
You seem to imply that an automated judicial system would be immutable; i don't think anyone argues that laws should never change.
Or how Hackers was a riot because of how hilariously wrong it got ... well ... everything that matters?
Compared to some TV shows, Hackers is accurate. I give you 2 people typing on the same keyboard to try to fight off a hacker. http://www.youtube.com/watch?v=u8qgehH3kEQ
I don't think it's complex but maybe it's unpredictable (or not easily predictable). It's all a matter of trust though, these expert systems are going to have to prove themselves to be superior to human judges (such as in cases of mistrials) before people can trust them.
They don't have to have encountered all possible combinations of facts either, machine learning is good at generalizing. In fact, civil law systems have already codified everything, and the system works. Also having machine-judges doesn't mean we can't add new laws when needed.
This system would lead to a whole class of "artists" trying to game the system by manipulating the data before feeding it to the machine-judge (a combination of what's already happening in courts + SEO tactics).
Edit for your edit: civil law still has to be constantly amended.
The main difference is that civil systems unifies the judicial and legislative functions under the premise that it can all somehow be decided in advance for every case.
Well, to answer your question, humans will come up with these laws (through legislative action or sth, IANAL). An expert system wouldn't need to record its previous decisions since it can come up with them when needed. In this sense it can be more adaptible than common law courts.
If protection was granted for contract clauses, firstly it would be far easier to search for existing clauses that were protected, and secondly, it would be far easier to draft around a protected clause.
Also, in the patenting process in the first place, it would be far easier to provide examples of prior art therefore making any attempt to patent clauses far harder.
Finally, advancements in contract drafting take place at a much slower pace than technological advancements in other areas, again, suggesting to me that many supposedly novel clauses would be obvious in light of prior art.
Still, an interesting idea to think about all the same.
Yes, it would be nice to work in a world where everything was standardised and obviously there are attempts in certain areas to standardise documentation to allow quicker negotiations and deal flow (ISDA documentation for example).
However, there will always be contracts which demand a greater degree of specificity due to the unusual surrounding circumstances, and certain resulting clauses could be considered to be novel.
Of course, if no one drafted novel clauses, there wouldn't be any work for the litigation lawyers when there's a disagreement over the clause's ambiguity!
This can happen right now. You don't have to wait for political reform or constitutional amendments. Disbar the people who are responsible for abuse. Then let the system work. Bar associations feel local pressure. They respond to it immediately, on the the timescale of months, not years. Remove the financial incentive to file obviously frivolous[2] suits, and the problem will go away. If the trolls can't find anyone reputable to represent them, we all win.
Just my $0.02.
[0] http://www.google.com/patents/US8086604
[1] http://en.wikipedia.org/wiki/Forum_shopping [2] http://en.wikipedia.org/wiki/Jack_Thompson_(activist)#Disbar...