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Friday, March 31, 2017

What is law? - Part 6

Previously: What is law? - Part 5.

To wrap up our high level coverage of the sources of law we need to add a few items to the “big 3” (Statutes/Acts, Regulations/Statutory Instruments and Case law) covered so far.

Many jurisdictions have a foundational written document called a constitution which essentially "bootstraps" a jurisdiction by setting out its core principles, how its government is to be organized, how law will be administered etc.

The core principles expressed in constitutions are, in many respects, the exact opposite of detailed rules/regulations. They tend to be deontic[1] in nature, that it, they express what ought to be true. They tend to be heavily open textured[2] meaning that they refer to concepts that are necessarily abstract/imprecise (e.g. concepts such as "fairness", "freedom" etc.).

Although they only make up a tiny tiny fraction of the corpus of law in terms of word count, they are immensely important, as essentially everything that follows on from the constitution in terms of Statutes/Acts, Regulations/Statutory Instruments and case law has to be compatible with the constitution. Like everything else, the constitution can be changed and thus all the usual "at time T" qualifiers apply to constitutionality.

Next up is international law such as international conventions/treaties which cover everything from aviation to cross-border criminal investigation to intellectual property to doping in sport.

Next up, at local community level residents of specific areas may have rules/ordinances/bye-laws which are essentially Acts that apply to a specific geographic area. There may be a compendium of these, often referred to as a "Municipal Code" in the case of cities.

I think that just about wraps up the sources of law. It would be possible to fill many blog posts with more variations on these (inter-state compacts, federations/unions, executive orders, private members bills etc.). It would also be possible to fill many blog posts with how these all overlap differently in different situations (e.g. what law applies when there are different jurisdictions involved in an inter-jurisdictional contract.).

I don't think it would be very helpful to do that however. Even scratching the surface as we have done here will hopefully serve to adequately illustrate they key point I would like to make with is this: the corpus of law applicable to any event E which occurred at time T is a textually complex, organizationally distributed, vast corpus of constantly changing material. Moreover, there is no central authority that manages it. It is not necessarily available as it was at time T - even if money is no object.

To wrap up, let us summarize the potential access issues we have seen related to accessing the corpus of law at time T.

  • Textual codification at time T might not be available (lack of codification, use of amendatory language in Acts. etc.)
  • Practical access at time T may not be available (e.g. it is not practical to gather the paper versions of all court reports for all the caselaw, even if theoretically freely available.)
  • Access rights at Time T may not be available (e.g. incorporated-by-reference rulebooks referenced in regulations)

All three access issues can apply up and down the scale of location specificity from municipal codes/bye-laws, regulations/statutory instruments, Acts/Statutes, case law, union/federation law to international law and, most recently, space law[3].

We are going to glide serenely over the top of these access issues as the solutions to them are not technical in nature. Next we turn to this key question:
Given a corpus of law at time T, how can we determine what it all means?

See you in Part 7.

Wednesday, March 29, 2017

What is law? - Part 5

The Judicial Branch is where the laws and regulations created by the legislative and executive branches make contact with the world at large. The most common way to think of the judiciary is as the public forum where sentences/fines for not abiding by the law are handed down and as the public forum where disputes between private parties can be adjudicated by a neutral third party. This is certainly a major part of it but it is also the place where law gets clarified with finer and finer detail over time, in USA-style and UK-style "common law" legal systems.

I like to think of the judicial branch as being a boundary determinator for legal matters. Any given incident e.g. a purported incident of illegal parking, brings with it a set of circumstances unique to that particular incident. Perhaps the circumstances in question are such that the illegal parking charge gets thrown out, perhaps not. Think of illegal parking as being – at the highest level – a straight line, splitting a two dimensional plane into two parts. Circumstances to the left of the line make the assertion of illegal parking true, circumstances to the right of the line make the assertion false.

In the vast majority of legal matters, the dividing line is not that simple. I think of the dividing line as a Koch Snowflake[1]. The separation between legal and illegal start out as a simple Euclidian boundary but over time, the boundary becomes more and more complex as each new "probe" of the boundary (a case before the courts), more detail to the boundary is added. Simple put, the law is a fractal[2]. Even if a boundary starts out as a simple line segment separating true/false, it can become more complex with every new case that comes to the courts. Moreover, between any two sets of circumstances for a case A and B, there are an infinity of circumstances that are in some sense, in between A and B. Thus an infinity of new data points that can be added between A and B over time.

Courts record their judgments in documents known collectively as “case law”. The most important thing about case law in our focus areas of USA-style and UK-style legal systems is that it is actually law. It is not just a housekeeping exercise, recording the activity of the courts. Each new piece of case law produced at time T, serves as an interpretation of the legal corpus at time T. That corpus consists of the Acts/Statutes in force, Regulations/Statutory Instruments in force *and* all other caselaw in force at time T. This is the legal concept of precedent, also known as stare decesis[3].

The courts strive, first and foremost, for consistency with precedents. A lot of weight is attached to arriving at judgements in new cases that are consistent with the judgements in previous cases. The importance of this cannot be over-estimated in understanding law from a computational perspective. Where is the true meaning of law to be found in common law jurisdictions? It is found in the case law! - not the Acts or the regulations/Statutory Instruments. If you are reading an Act or a regulation and are wondering what it actually means, the place to go is the case law. The case law, in a very real sense, is the place where the actual meaning of law is spelled out.

From a linguistics perspective you can think of this in terms of the pragmatics counterpart to grammar/syntax. Wittgenstein fans can think of it as “language is use”. i.e. the true meaning of language can be found in how it is actually used in the real world. Logical Positivists might think of it as a behaviorist approach to meaning. That is, meaning comes from behavior. To understand what a law means – watch what the courts interpret it to mean.

The meaning of the law comes from how it is used in practice and that use comes from the empirically observable behavior of the courts. I could be a staunch advocate of my interpretation of the law at time T as written in the Acts/Statutes and Regulations/SIs but if the caselaw supports a different interpretation to mine, I will have an uphill battle defending my interpretation in court.

There is a useful computing analogy here too. Every programmer knows that there are times when the quickest way to get to the true meaning of a piece of code is to run it and see what happens. In the world of law, the quickest way to get an understanding of the true meaning of some legislative material is to find how it has been treated in the case law. It is also a highly efficient way of getting to "truth" because, at the end of the day, it does not matter how many possible interpretations might be valid for any given point of law. What really matters is how the courts have interpreted it in the past.

Extending the programming analogy a little bit. It is often easier to figure out what some code does in a particular set of circumstances by looking for a unit test that matches the circumstances of interest. Extending the analogy even further, any new tests added should not invalidate the existing tests and any code changes to acommodate new circumstances should not invaldate any existing caselaw. In other words caselaw behaves a little like regression testing in software development. The courts strive to not "break" previous judgements.

It will come as no suprise that most lawyers place great importantance on caselaw searching. It might come as a suprise that there is no central entity that publishes the official caselaw. Typically courts act autonomously and publish their own volumes of caselaw periodically. Much of it, to this day, still on paper with the paper being the definitive source. I.e. if a court does produce paper plus electronic case law, the paper "wins" in the event of any discrepency.

There is a long history going back to at least the Nineteenth century of third parties acting as aggregators of caselaw. Mostly notably, West Publishing (now part of ThomsonReuters) and LexisNexis, now part of ReedElsevier. I think it is fair to say that the modern practice of law in common law jurisdictions would not be possible if practitioners did not have the ability to rapidly search caselaw.

The sheer volume of existing caselaw and the rate of creation of new caselaw is such that without computers, the common law system would not be able to function as it does today. Most of the computational support to date has been in the form of document production and search/retrieval. There are signs that that is changing now as machines start to help practitioners interpret the caselaw. This is a topic for another day!.

It is important to note that the corpus of caselaw is not purely accretive. Caselaw is, from time-to-time, repealed and practitioners need to be careful in citing caselaw to ensure that the cited caselaw is still considered "good law". Again, enter the computers and their search capabilities. In particular a ubiquitous legal term "shepardizing"[4] which refers to looking up a case to find its status and find what other cases cite it and what other cases it also cites.

The fact that caselaw is not purely accretive creates yet another interesting “at time T” issue. Any judgement the courts might arrive at, at time T is necessarily contingent on the full corpus at time T. The exact same issue, examined at some future time point T+1 might produce a different result if some of the caselaw that was “good law” at time T is no longer “good law” at time T+1. We will return to this later on when we talk about defeasible logic and analogical reasoning but they are best parked for now until we have finished the survey of the sources of law itself.

It is in the area of caselaw that our imagined virtual legal reasoning box runs into its biggest challenge with respect to access to the raw materials of law. In common law jurisdictions, the volume of caselaw that is considered "good law" at any time T is vast, goes back centuries and is not available anywhere as a single corpus. Plus, the best sources are in fee-based repositories.
The good news is that the caselaw corpus is not homogenous in terms of its importance to precedent. In many interesting respects the caselaw corpus is the grand daddy of all Social Networks. Yes, you read that right. Social Networks! Cases are linked to other cases by means of a formal referencing mechanism. A commonly used set of standards for these citations is known as the Blue Book[5]. The links between cases are not randomly distributed. They are in fact a poster child for the concept of a power law distribution[6].

Lawyers and judges working with the caselaw corpus spend their time on the subset of cases that naturally follows from following citations. Cases that that have high "rank" - where rank refers to the inbound and outboud connections to other cases – are very important cases, by virtue of the citation network around them. If this reminds you of the original Google concept of Page Rank you are exactly right. Citations serve two primary purposes. Firstly, they are indicative of the relative importance of a case (“how often has this case been cited positively in cases like mine?”) and secondly, they give a good indication of how robust a case is likely to be against repeal. The citation network can tell you a lot about the knock-on effect of repeal and remember, in common law systems, a really important "logic" at work is the logic of consistency with previous decisions.

There is an old adage that it is not possible to step into the same river twice. This adage capture my mental model of caselaw. It is like a fast flowing river with the added twist that over time, it can forge new pathways and route around obstacles, while continuing to be "the same" river. In fact, the entire corpus of law is like that. It is constantly changing – every day. Every new piece of caselaw, every new regulation, every new act, adds new data points into the fractal geometry of the previously mentioned Koch Snowflake of legality.

Rivers are not easy things to capture in databases! That is why, to my mind , the key challenge in regulatory data management is actually regulatory change management. In fact, I think of the two as being the same thing. Modelling the data is hard enough - as I hope you can appreciate based on the material presented here so far. Modelling how the data changes and how any computational system can be kept up to date with the changes, is another matter completely. Regulatory change is not something you can afford to park and deal with another day in any useful conceptual model of law. I would argue it needs to be the central plank of the data model of law. After all, if you have a model that works well when things change, it will work just fine when things do not change. But the reverse is not true.

So that is it for caselaw for now.

Next up, we wrap up coverage of the sources of law with some other sources not yet mentioned. We will also take a stab at summarising and classifying the issues related to accessing the corpus of law, covering all the sources mentioned.

From there, we will turn our attention to the legal reasoning process itself. That is where the fun stuff really starts. See What is Law - Part 6.


Monday, March 27, 2017

What is law? - Part 4

Now we will turn our attention to the second part of the legal corpus, namely regulations/statutory instruments. I think of this material as fleshing out of the material coming in the form of Acts from the Legislature/Parliament. Acts can be super-specific and self contained, but they can also be very high level and delegate finer detail to government agencies to work out and fill in the details. Acts that do this delegation are known as "enabling acts" and the fine detail work takes the form of regulations (USA terminology) or Statutory Instruments (UK terminology).

The powers delegated to executive branch agencies by enabling Acts can be quite extensive and the amount of review done by the Legislature/Parliament differs a lot across different jurisdictions. In some jurisdictions, there is no feedback loop back to the Legislature/Parliament at all. In others, all regulation/statutory instruments must pass a final approval phase back in the Legislature/Parliament.

As with the Acts, the regulations go through a formal promulgation process - typically being activated by public notice in a Government gazette/register publication. As with the Acts, an official compendium of regulations may or may not be produced by Government itself and if it exists, it may lag behind the production of new Regulations/Statutory Instruments by months or even years. As with Acts, third party publishers often add value by keeping a corpus of regulations/SIs up to date with each register/gazette publication (often a weekly publication).

One useful rough approximation is to conceptualize the Regulations/Statutory Instruments as appendices to Acts. Just as with any other type of publication, a full understanding of the text at time T requires a full understanding of the appendices at time T. In other word, to understand the Act at time T you need the Regulations/Statutory Instruments at time T.

This brings us to the first significant complication. The workflows and publication cycles for the Acts and the Regulations/Statutory Instruments are different, and the organizations doing the work are different, resulting in a work synchronization and tracking challenge. Tracking Acts is not enough to understand the Acts. You need to track Regulations/Statutory Instruments too and keep the two in sync with each other.

The next complication comes from the nature of the Regulations/Statutory Instruments themselves. When the need arises for very detailed knowledge about some regulated activity, there is often a separate association/guild/institute of specialists in that regulated activity. Sometimes, the rules/guidelines in use by the separate entity can become part of the law by being incorporated-by-reference into the regulations/statutory instruments[1]. Sometimes, the separate association/guild/institute is formally given powers to regulate and becomes what is known as a Self Regulatory Organization (SRO)[2]. The difficulty this presents for the legal decision-making box we are creating in our conceptual model of law is that this incorporated-by-reference material may not be freely available in the same way that the Acts and Regulations/Statutory Instruments are generally freely available (at least in unconsolidated forms).

In Part 1, reference was made to the legal concept that "ignorance of the law is no defense". Well, you can see the potential problem here with material that is incorporated-by-reference. If I can only read the incorporated-by-reference aspects of the legal corpus at time T by paying money to access them, then the corpus of law itself (however complex and difficult to interpret it might be) is not actually fully available to me.

The important distinction here is between fee-based access to convenient "packaging" and perhaps associated explanatory material, versus fee-based access to the raw materials themselves. This is an open issue in the world of law at the moment. The world continues to become a more and more complex place and the need to delegate detailed work on regulations down to the practitioners who have deep domain expertise, continues to grow. However, expertise is expensive and needs to be paid for somehow. One revenue source for associations/guilds/institutes has, historically been, charging for access to the rulebooks/guidance they produce. If the rulebooks/guidance become free as a result of incorporation-by-reference into regulations, then the revenue stream is removed. The issue is not unique to regulations/statutory instruments. When we take a look at the judiciary, we will see that some similar issues can arise there also. For now, let us slide over the question of fee-based access to incorporated-by-reference material and proceed as if we have access to it from our conceptual model. 

The next challenge we encounter is the diversity of the regulatory/statutory instrument material itself. Unlike Acts, it is not unusual for this material to contain maps, photos and other forms of multimedia. As the trend towards "born digital"[3] materials continues, more and more complex document types are in fact applications, not documents. Examples include GIS (e.g. redistricting[4]), spreadsheet models in finance, web forms in eligibility determination etc.

This is probably the biggest challenge facing the existing fixed writing-centric conceptualization of legal materials which has been with us since The Code of Hammurabi[5] of ancient Babylon, The Twelve Tables[6] of Ancient Rome and The Brehon Laws[7] of ancient Ireland. Namely, we appear to be transitioning parts of the corpus of law away from words and into software applications. The big shift here is that with a software application, behavior can be observed, but not the reasoning behind the behavior. It may be that deep down in the software there are a set of rules that govern the applications behavior but these are invisible to the consumers of the law and, in many cases, proprietary. For extra spice, consider that the present-day trend towards deep learning approaches to law, presents the head-hurting possibility of a software application whose behavior can be observed but for which there is literally no human-digestible set of rules that govern its behavior.

To see why this is a big deal consider a hypothetical court case where the judge finds the defendent guilty as charged but records the reasoning behind the judgement simply as "Because I said so." We would not accept that because there is no defense of the the reasoning (known more formally as an explanans[8]). Software applications behave this way all the time:-) We will return to the profound implications of this later on.

Another twist. In some jurisdictions, regulations/statutory instruments can modify Acts. This one is another "head hurter" because it means that activity happening "downstream" from a Legislature/Parliament in regulations/Sis can potentially change the texts of the Acts produced by that Legislature/Parliament. Tracking this is made more difficult by the often significant organizational boundaries between the Legislature/Parliament function and the Government Agencies function. It also significantly complicates the concept of consolidation. Each new regulation/statutory instrument issued potentially changes the text of the Acts.

One final twist and then we will move on to the judicial branch aspects of the legal corpus Sometimes a regulation/statutory instrument takes the form of interpretive guidance rather than a textual changes. For example, it might say something like "from this day forward, when you read 'X' in Act N, interpret that to mean 'X or Y'".

You might need to let that sink in for a minute. It means that not only can the full meaning of Acts not be found in the Acts themselves – you need the regulations/statutory instruments to fill in the detail - but that the meaning itself can change over time by changes happening in the regulations/Sis without any textual changes to the Acts!

Any software developers out there might want to think of it this way: consider a simple math equation in your code with no external dependencies on the outside world at all. What if I told you that the math of your formula might need to act differently tomorrow because I might redefine some of your variables without telling you? Creates an interesting challenge doesn't it?

Fun stuff, right? As we will see, the third part of the legal corpus - the part produced by the judiciary - has a similar ability to modify semantics. In fact it can modify the semantics not just of the Acts but of the regulations/statutory instruments, and modify its own semantics to boot.

Thank you for sticking with me through all of this sometimes head-hurting stuff. I am trying to lay this out with sufficient detail so that when I say that legal content management is “complicated”, you have a sense of what I mean. I see too many well intentioned architects working in this space incorrectly concluding that “getting the texts of the law” to work on, is an easy first step in computational law. It is complicated, but it can be done as we will see.

But first, time to turn to the judicial branch and look at its contribution to the legal corpus. See you in Part 5.