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Legal Design for the Common Good: Proactive Legal Care by Design
Abstract
Many legal problems are caused by misunderstandings. People do not read complex documents. Even if they do, they may not find what they look for or understand what they find. This chapter shows how proactive legal care can help, not only to deal with challenges of complex legal information, but also to improve access to justice and prevent unnecessary problems. Enhancing clients’ self-care by promoting their legal literacy is a central strategy for this purpose. Changing how documents are framed and presented is another. We propose a new mindset for lawyers, with a focus on the users and on using the law for the advancement of the common good. With this mindset, it becomes natural to look for skills and tools to present legal information in more engaging and actionable ways. Design patterns offer a way to identify and share such tools, for the benefit of lawyers and clients alike.
... Alignment has been made between the health and legal worlds. Haapio (2021) 14 notes that 'as with physical, mental and social health, people cannot achieve their fullest (legal) health potential unless they are able to take control of those things which determine their legal health'. ...
... Alignment has been made between the health and legal worlds. Haapio (2021) 14 notes that 'as with physical, mental and social health, people cannot achieve their fullest (legal) health potential unless they are able to take control of those things which determine their legal health'. ...
This article by Emily Allbon introduces readers to the discipline of legal design, offering an insight into its application, its methodology, and the contexts in which it appears. There is coverage of why legal design is so pivotal for ensuring access to the law and an exploration of where it is being used: in legal practice, in academia, in public legal education and in the courts. There is also a close look at one element; that of visual contracts, and some consideration of where the legal information profession might position itself.
... Our participants sensed design thinking pedagogy as enabling alternative mindsets and developing empathic, creative, and innovative thinking skills. In this way, design thinking pedagogy can potentially address gaps in traditional legal education by supporting students to move beyond the constraints of rational thinking and legal reasoning and to avoid more litigious and adversarial approaches (Haapio et al., 2021). Design thinking also offers a valuable methodology for interdisciplinary creative work, by enabling multi-professional teams to establish common ground and perspectives (Lindberg et al., 2010, p. 35). ...
This chapter introduces the concept of intersemiotic legal translation through the conceptual tools provided by the studies deriving from the debates about legal translation and those pertaining to intersemiotic translation that have been conducted by semioticians and linguists. In the first part, the topic of legal translation will be briefly reconstructed, and the peculiarities connected to the nature of normative language and legal terms will be discussed. Beginning with the literature pertaining to the subject, a general concept of “legal translation” is identified; this concept can encompass phenomena of potential interest for research on intersemiotic legal translation. The chapter then focuses on the distinction between interlegal translation, which involves different legal systems, intralegal translation, which pertains to the same legal system, and supralegal translation, which is concerned with supranational entities, such as the EU. The second part provides a brief account of the evolution of the concept of intersemiotic translation, starting with the distinction introduced by Roman Jakobson among intralingual, interlingual, and intersemiotic translation, up to the contemporary age, focusing on the relevance that the set of phenomena subsumable under this concept may have for contemporary lawyers. The third part clarifies the concept of intersemiotic legal translation, which is understood as a species of the genus “legal translation.” Finally, a typology of legal translation, including intersemiotic legal translation, is presented.
Research shows that strategic dispute resolution and early intervention reduce direct and indirect costs of conflicts. Minimal costs are involved in preventing and de-escalating disputes, compared with the costs of arbitration and litigation, for example. In this context, the traditional view of contracts as legal documents or reactive enforcement mechanisms is too narrow. Contracts can be used proactively, ex ante, too, enhancing the parties’ chances of success and preventing unnecessary problems. In Europe, this is part of what is known as Proactive Law; in the US, Preventive Law. On both sides of the Atlantic, it can also be framed as practicing proactive contracting or proactive contract design. Well-designed contracting processes and documents can prevent misaligned expectations and disappointments so that unnecessary disputes can be avoided. Early intervention methods of dispute resolution, such as mediation, can be used to de-escalate the dispute and promote cooperation. Along with other crucial elements, contracts can provide pre-agreed procedures and resolution mechanisms if changes, delays, or disturbances occur or a conflict situation arises. Building on our previous work on civil and commercial mediation and a managerial-legal view on contracts and their design we illustrate, with examples, how proactive contract design, combined with early intervention procedures and monitoring systems as well as post-award management processes can be used to better deal with the commercial, legal and human elements of a dispute. With a focus on commercial business-to-business contracts and related conflicts we explore how design methods can be used to address the root causes of legal disputes and to operationalize an effective dispute prevention and resolution system.
This open access book explores machine learning and its impact on how we make sense of the world. It does so by bringing together two ‘revolutions’ in a surprising analogy: the revolution of machine learning, which has placed computing on the path to artificial intelligence, and the revolution in thinking about the law that was spurred by Oliver Wendell Holmes Jr in the last two decades of the 19th century. Holmes reconceived law as prophecy based on experience, prefiguring the buzzwords of the machine learning age—prediction based on datasets.
On the path to AI introduces readers to the key concepts of machine learning, discusses the potential applications and limitations of predictions generated by machines using data, and informs current debates amongst scholars, lawyers and policy makers on how it should be used and regulated wisely. Technologists will also find useful lessons learned from the last 120 years of legal grappling with accountability, explainability, and biased data.
While rich medical, behavioral, and socio-demographic data are key to modern data-driven research, their collection and use raise legitimate privacy concerns. Anonymizing datasets through de-identification and sampling before sharing them has been the main tool used to address those concerns. We here propose a generative copula-based method that can accurately estimate the likelihood of a specific person to be correctly re-identified, even in a heavily incomplete dataset. On 210 populations, our method obtains AUC scores for predicting individual uniqueness ranging from 0.84 to 0.97, with low false-discovery rate. Using our model, we find that 99.98% of Americans would be correctly re-identified in any dataset using 15 demographic attributes. Our results suggest that even heavily sampled anonymized datasets are unlikely to satisfy the modern standards for anonymization set forth by GDPR and seriously challenge the technical and legal adequacy of the de-identification release-and-forget model.
In its drive to prevent market failures and safeguard consumers, the European legislator has embraced the information approach. In the context of online trade, this requires online traders to disclose ever-growing amounts of information to consumers regarding contract terms, the handling of their personal information, and the use of cookies on the trader’s website, to name just a few of the areas involved. However, whilst adopting substantive information obligations for traders, the European legislator still tends to disregard scholarship on effective information design. This paper recommends empirically tested, interdisciplinary criteria for the design of effective disclosures online, with a focus on their application in the EU. Without clear guidance as to how disclosures should be formulated, traders are left open to accidental or purposeful obfuscation.
Michael D. Murray, The Ethics of Visual Legal Rhetoric, 13 Legal Comm. & Rhetoric: JALWD 107 (2016):
This article discusses the ethics of visual rhetoric and visual narrativity. Visual rhetoric is the use of graphics, photographs, and other depictions for communication, for construction of knowledge and understanding, and ultimately for persuasion in the truth and rightness of the communication. Narrativity, which is sometimes described as narrative reasoning or storytelling, is the modern movement to focus legal writing on the tools that best communicate clients’ stories—their situation, conditions, and circumstances—along with the “story” of the development, growth, and meaning of the law itself that provides the context for the clients’ legal situation. In this article, I discuss and critique the issues of efficacy and advisability raised by the use of visual rhetorical devices in a communicative and evidentiary sense, and further examine the special ethical and professional responsibility issues created by the unusual emotive, communicative speed and power of visual rhetorical devices. Later, I focus on particular examples of advocacy using visual rhetoric, and discuss the rhetorical efficacy and ethical propriety of the uses of the visual rhetorical devises in these particular examples.
This paper proposes a brief analysis of the 'causa' as a condition of validity of the contract, the mistake of law and the strict liability under the jurisprudential movement of the Colombian Supreme Court between 1936 and 1940, commonly known as the period of the "Corte de Oro". The aim of this article is to verify the creative work by judge-made law in our country, the change in the interpretation of certain provisions of the Colombian Civil Code and the fate of these changes today.
Literal literacy can be used as a vantage point for the reconstruction of intricate relations between three further kinds of literacy. Pictorial literacy can be contrasted with literal literacy at least in phenomenological and epistemolog-ical regards. This contrast helps to separate different modes of representation as issues of information literacy. Information literacy relies on a productive concurrence of different types of literacies, while visual literacy is neither restricted to the search for information nor to pictorial signs. After some preliminary remarks on different kinds of literacies in the first section, the second section discusses technologically and linguistically biased approaches to information literacy with regard to a proposal by the UNESCO. Section three will then explicate certain epistemic features of pictorial literacy in regard of informative pictures, which can show us how things are looking. The broader significance of visual literacy and its relation to multi-modal articulations and artefacts is then examined in section four.
We show that the fundamental legal structure of a well-written financial contract follows a state-transition logic that can be formalized mathematically as a finite-state machine (also known as a finite-state automaton). The automaton defines the states that a financial relationship can be in, such as “default,” “delinquency,” “performing,” etc., and it defines an “alphabet” of events that can trigger state transitions, such as “payment arrives,” “due date passes,” etc. The core of a contract describes the rules by which different sequences of event arrivals trigger particular sequences of state transitions in the relationship between the counterparties. By conceptualizing and representing the legal structure of a contract in this way, we expose it to a range of powerful tools and results from the theory of computation. These allow, for example, automated reasoning to determine whether a contract is internally coherent and whether it is complete relative to a particular event alphabet. We illustrate the process by representing a simple loan agreement as an automaton.
EU consumer protection relies inter alia on information requirements imposing on traders the duty to provide specific and mandatory information to consumers before the conclusion of a contract. If consumers make well informed choices this can serve their individual interest, but it is also thought to contribute to a healthy market. However, the imposition of stringent and specific information requirements has been criticized from several points of view. For example, behavioural scientist have argued that more information does not necessarily lead to better decisions. From an economic point of view, information requirements can even be harmful to consumer interests. Nevertheless, information requirements form a substantive part of EU consumer protection and therefor this contribution explores how information requirements may be of added value. It is argued that information requirements can add value to consumer protection when regarded in relation to general contract law. This point is illustrated by an analyses of the information duties of the Consumer Rights Directive in relation to general contract law.
This groundbreaking work offers a first-of-its-kind overview of legal informatics, the academic discipline underlying the technological transformation and economics of the legal industry. Edited by Daniel Martin Katz, Ron Dolin, and Michael J. Bommarito, and featuring contributions from more than two dozen academic and industry experts, chapters cover the history and principles of legal informatics and background technical concepts – including natural language processing and distributed ledger technology. The volume also presents real-world case studies that offer important insights into document review, due diligence, compliance, case prediction, billing, negotiation and settlement, contracting, patent management, legal research, and online dispute resolution. Written for both technical and non-technical readers, Legal Informatics is the ideal resource for anyone interested in identifying, understanding, and executing opportunities in this exciting field.
This article informs about certain legal analytics tools that can be used to predict the outcome of cases. It identifies and assesses some challenges to the right to a fair trial that appear in case this kind of tools are employed by judges and parties in judicial proceedings. Further, the article offers a reflection on possible strategies to tackle the identified challenges, including the adoption of the appropriate method to address legal analytics in court procedures, the need for proper training of judges or certification and auditing schemes.
The Postmodern Turn gathers together in one volume some of the most important statements of the postmodern approach to human studies. In addressing postmodern social theory and emphasising the social role of knowledge, this book abandons the disciplinary boundaries separating the sciences and the humanities. The first collection of its kind, it provides the classic essays of authors such as Lyotard, Haraway, Foucault and Rorty. Contributors include well-known theorists in the fields of sociology, anthropology, women's and gay studies, philosophy, and history.
Modern technologies enable traders to design more personal and comprehensive product labelling, as well as to improve product traceability through the supply chain. Personalised and comprehensive product information could raise consumers’ product awareness, shaping new consumers’ product and safety expectations. The improved product traceability through the supply chain could extend the producers’ control over the product, beyond the moment the product left the manufacturing process. This paper examines the impact of modern technologies on European rules of product liability. Specifically, it considers whether the recognition of a defective product in the currently reviewed Product Liability Directive should continue to follow the test of the public’s safety expectations, as well as whether producers could continue to rely on the defence of a product not being defective when they put it into circulation.
Oikeus 2018/1, 65–80: www.edilex.fi/oikeus/18700
***scroll down for English abstract***
Sopimuskäytäntöjen muuttuessa myös sopimusoikeuden on vastattava tähän muutokseen. Tuotantotoiminnan sirpaloituessa pistemäisestä kansallisesta tuotannosta kohti hajautettua ylikansallista tuotantoa on jaottelu klassiseen ja uusklassiseen sopimusoikeuteen saanut seurakseen mm. relationaalisen sopimisen ja transaktiokustannusteorian tarjoamat uudet näkökulmat sopimuskäytäntöihin. Nämäkään eivät kuitenkaan ole pystyneet tarjoamaan uskottavaa vastausta kysymykseen sopimuksen roolista tuotanto-toiminnan järjestämisessä nyky-yhteiskunnassa. Tässä kaksiosaisessa kirjoituksessa me väitämme, että funktionaalisen sopimusteorian analyyttinen lähestymistapa pystyy avaamaan sopimuskäytännön ja sopimusoikeuden umpisolmun. Yhden yhtenäisen sopimusmonoliitin sijaan funktionaalinen sopiminen pureutuu tarkastelemaan sopimuksen erilaisia funktioita, kuten osapuolten taloudellisen aseman turvaamista, osapuolten välisen suhteen mukauttamista muuttuneisiin olosuhteisiin ja osapuolten välisen suhteen koordinointia. Lähestymistapa tarjoaa juridisesti relevanttia tietoa sopimusten eri käyttötarkoitusten kirjosta yhteiskunnassa ja siitä, miten oikeuden tulisi suhtautua käyttötarkoituksiin, joita ei aina pysty hahmottamaan perinteisen osapuolten taloudellista asemaa turvaavan sopimusparadigman kautta. Samalla funktionaalinen sopiminen johtaa väistämättä muutoksiin sopimuksen ja sopimisen juridisessa ymmärtämisessä, sopimuskäytännöissä ja sopimusjuristin kuvassa.
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English abstract: Functional Contracting, Part I: Rethinking Contract Law
To retain its relevance, contract law must respond to changes in how contracts are used in society. Changes in production practices from centralized and local to fragmented and global have resulted in classical and neoclassical contract law being complemented with new ideas of contractual relationships, such as those provided by relational contracting and transaction-cost economics. Even these, however, have not been able to provide an adequate response to law”s problems in understanding current modes of contractually organized production.
We argue that the analytical approach of functional contracting can open up the Gordian knot of contractual practice and dogma. Functional contracting focuses on the different functions that a contract can have, such as safeguarding, adapting, and coordinating, instead of maintaining a monolithic, all-inclusive conceptualization of contract. This analytical differentiation of contractual functions provides juridically relevant information on different uses of contracts and on how law could respond to contractual usag- es that do not snuggly fit under existing paradigms focusing on safeguarding financial interests. At the same time, functional contracting will necessarily lead to changes in the juridical understanding of contracts, contractual practice, and the role of contract lawyers.
This article offers an original integrated introduction to how to think about what design can do for law; where to find examples of legal design; and how to assess it. It identifies clear points of contact between lawyerly concerns and designerly skills, knowledge, and attitudes. It proposes that designerly ways can directly improve lawyerly communication; and that they can also generate new structured‐yet‐free spaces in which lawyers can be at once practical, critical, and imaginative. The article foregrounds the, hitherto unrecognized, diversity of existing legal design practice by drawing examples from across four fields of lawyering: legal practice, legal activism, policy making, and legal research. Emphasis is placed throughout on the need for a critical approach to legal design – that is, for legal design to be thought about and done with a commitment to avoiding, exposing, and remedying biases and inequalities.
In recent years, legal departments and law firms around the world have been busy developing legal guidance for business people to follow. Legal compliance handbooks and policy manuals vary in coverage and title, but many have one thing in common: the guidance remains unread. People prefer to ask the lawyers instead, or ignore the legal aspects of their doings. Legal Design promises to change things for the better. This paper presents the playbook genre as a possible solution to help convey complex messages, clarify tasks, share tools, drive compliance, and prevent unnecessary legal problems.
Most access-to-justice technologies are designed by lawyers and reflect lawyers’ perspectives on what people need. Most of these technologies do not fulfill their promise because the people they are designed to serve do not use them. Participatory design, which was developed in Scandinavia as a process for creating better software, brings end users and other stakeholders into the design process to help decide what problems need to be solved and how. Work at the Stanford Legal Design Lab highlights new insights about what tools can provide the assistance that people actually need, and about where and how they are likely to access and use those tools. These participatory design models lead to more effective innovation and greater community engagement with courts and the legal system.
This volume is an experiment. It addresses various aspects of computability in a thematic and methodological breadth as it was once demanded by Francis Bacon at the beginning of modern Western science, but as it is rarely practiced today in a time of ever-increasing scientific specialization. At the beginning of the third millennium, the question of the computability of the physical, the psychological, and the social world arises once again—mainly due to advances in information and communication technology and the concurrent data deluge not only in the sciences but also in many other areas, e.g. in the economy and even our personal lives.
This paper investigates what we acknowledge to be meaningful and new knowledge. It refers to examples from history, illustrating how human knowledge and knowledge produced by machines were often opposed to each other. Taking into account that knowledge is confirmed by reciprocal processes, it argues that by acknowledging and integrating the results of machine processes into our daily lives, this knowledge also becomes “meaningful” for humans. The acceptance of machine-produced knowledge depends on the cultural network of knowledge confirmation. The strict difference between the two kinds of knowledge, that which is produced by human beings and that which is produced by machines, is vanishing.
The Unfair Commercial Practices Directive (2005/29/EC) fully harmonises unfair commercial practices law in the European Union. The Directive aims to achieve a high level of consumer protection, to increase the smooth functioning of the internal market and also more broadly to improve competition in the market as such. The Directive relies to a large extent on general clauses prohibiting unfair commercial practices. Consumer benchmarks are used in this context to determine the expected behaviour of consumers, including the degree to which they are expected to be informed, attentive and critical. What benchmark is applied is relevant to the level of consumer protection, but also to the other goals of the Directive. For example, the degree to which consumers are protected may affect consumer confidence in cross-border shopping, and what is regarded as unfair also affects competition, since traders acting unfairly can take away market share from fair traders offering better products. This book investigates the three consumer benchmarks in the Directive (i.e., the average consumer benchmark, the target group benchmark and the vulnerable group benchmark), both at the European and at the national level. Moreover, it provides an analysis of the plausibility of the benchmarks and their application from a consumer behaviour perspective. Finally, it assesses to what extent the consumer benchmarks in the Directive meet each of the Directive’s goals.
Consumer protection in financial markets in the form of information disclosure is high on government agendas, even though there is little evidence of its effectiveness. We implement a randomized control trial in the credit card market for a large population of indebted cardholders and measure the impact of Truth-in-Lending-Act-type disclosures, de-biasing warning messages and social comparison information on default, indebtedness, account closings, and credit scores. We conduct extensive external validity exercises in several banks, with different disclosures, and with actual policy mandates. We find that providing salient interest rate disclosures had no effects, while comparisons and de-biasing messages had only modest effects at best.
In this essay I reflect on the fundamental impact of global networked communications on trading relationships and the overall value chain. Based on my observations as Executive Director of the International Association for Contract and Commercial Management, I argue that the influences and complexity of today's market conditions demands fresh approaches to the way that relationships are formed and managed, promoting the role of contracts in shaping organizations and determining their success. I conclude that in a modern networked economy, the contracting process provides the essential glue that ensures integrity across the links in the value chain. Therefore contracting, until now the ugly duckling of commercial endeavor, must take center stage as a strategically critical capability that will be strengthened through the academic rigor and research such a professional practice demands.
In the recent years, different Web knowledge graphs, both free and commercial, have been created. While Google coined the term Knowledge Graph in 2012, there are also a few openly available knowledge graphs, with DBpedia, YAGO, and Freebase being among the most prominent ones. Those graphs are often constructed from semi-structured knowledge, such as Wikipedia, or harvested from the web with a combination of statistical and linguistic methods. The result are large-scale knowledge graphs that try to make a good trade-off between completeness and correctness. In order to further increase the utility of such knowledge graphs, various refinement methods have been proposed, which try to infer and add missing knowledge to the graph, or identify erroneous pieces of information. In this article, we provide a survey of such knowledge graph refinement approaches, with a dual look at both the methods being proposed as well as the evaluation methodologies used.
This paper integrates and cuts through domains of privacy law and biometrics. Specifically, this paper presents legal analysis on the use of Automated Facial Recognition Systems (the AFRS) in commercial (retail store) settings within the European Union data protection framework. The AFRS is a typical instance of biometric technologies, where a distributed system of dozens of low-cost cameras uses psychological states, sociodemographic characteristics and identity recognition algorithms on thousands of passers-by and customers. Current use cases and theoretical possibilities are discussed due to the technology's potential of becoming a substantial privacy issue. Firstly, this paper introduces the AFRS and EU data protection law. This is followed by an analysis of European Data protection law and its application in relation to the use of the AFRS, including requirements concerning data quality and legitimate processing of personal data, which, finally, leads to an overview of measures that traders can take to comply with data protection law, including by means of information, consent and anonymization.
Law as a profession has much in common with architecture and engineering. In contexts as diverse as business transactions, legislative work, and mediation, lawyers have been called legal architects or engineers. We propose seeing contracts as things or artefacts – something to be designed – and borrowing from architects and engineers the idea of design patterns: solutions to recurring problems. Our examples illustrate how design patterns may relate to contract forms, templates, or clauses, but also go way beyond. The paper concludes with an agenda for an open design pattern library for contracts, seeking to help share examples and best practices that enable better contract design and communication.
Full text available at: http://ssrn.com/abstract=2747280
In 1997, Bill Gates famously said "Content is king." Since then, the digital marketing world has been scrambling to fulfill this promise, as we finally shift our focus to what consumers really want from our brands: a conversation.The Digital Crown walks you through the essentials of crafting great content: the fundamentals of branding, messaging, business goal alignment, and creating portable, mobile content that is future-ready. Systems create freedom, and within this book youâ??ll learn the seven critical rules to align your internal and external content processes, including putting your audience first, involving stakeholders early and often, and creating multidisciplinary content teams. Complete with case studies and experience drawn directly from global content projects, you are invited to observe the inner workings of successful content engagements. Youâ??ll learn how to juggle the demands of IT, design, and content teams, while acquiring all the practical tools you need to devise a roadmap for connecting and engaging with your customers. This is your next step on the journey to creating and managing winning content to engage your audience and keep them coming back for more.