Artificial Intelligence and how it will affect commercial lawyering (and legal blogging)

17th January 2023

Here is a thought:

Or, to perhaps put it another way: could Artificial Intelligence replicate, or even replace, the work of your normal contracts lawyer?

As someone who has spent over twenty years as a commercial lawyer (constitutional law is my interest, and contracts law my drudgery) I would say the answer is yes, and no, and but.

And as a coda, I will aver that those of us who write and comment on legal blogs may face a problem too.

Yes

The yes is a recognition that a certain amount of contracts law in practice is ploddery.

You have a standard form contract, and you read every clause, and you put all the clauses together.

Many standard clauses are what is called boilerplate – their effect, and often their very wording, are identical from one contract to another.

And even clauses which can vary from one standard from to another – payment arrangements, service levels, and key allocations of risk – do not vary very much.

In larger law firms, the task of reviewing, and even drafting, such contracts is given to junior lawyers, even trainees.

Many non-legally qualified contracts managers and procurement officers are better than many commercial lawyers in dealing with straightforward commercial contracts.

And so just as a text comparison program can identify differences between contracts better than almost any human, then a computer which has a bank of hundreds, if not thousands, of standard contracts would be able to identify standard and deviant clauses.

Such a computer may even be able to propose amendments to the deviant clauses so as to place the contract onto a more standard basis.

So, yes, some straightforward contracts reviews could be done by Artificial Intelligence.

No

Standard form contracts are subject to special legal rules in case law and statute, especially when they are for business-to-consumer transactions, and so a store of contracts would not enough: external legal expertise can be necessary.

And being able to advise a client on whether a standard form contract will be in their commercial interests or not is not something Artificial Intelligence is likely to be able to do soon.

That is because assessing commercial risk in a particular situation is not a form of abstract calculus, for it requires an understanding of industry, business, economic, social and human factors.

And, of course, not all commercial contracts are on standard forms.

Certain transactions require bespoke contracts, dealing with the allocations of risk of a range of things that could go wrong.

In IT and media contracts, for example, there often needs to be an understanding of technological risks so that the legal risk allocations match and mirror what problems can happen in practice.

A well-drafted and hard-negotiated bespoke commercial contract is as much a work of cooperation, conflict and collective endeavour as you will find anywhere else in human activity.

But

There is a problem.

The good lawyers who can advise on standard and bespoke contracts can do so because of their apprenticeship in dealing with straightforward clauses in everyday contracts.

You do not have child prodigies in practical law: a practice takes, well, a lot of practice.

One reason for this is that contracts are not linear documents but complex instruments: each clause can and should relate to other clauses.

And the only way to master complex instruments is to understand how the elements of that instruments all fit (or do not fit) together in given practical situations.

(I have said before that legal drafting is akin to coding in making sure lines all work together.)

This means that if Artificial Intelligence replicates and then replaces the work of junior contract lawyers it is difficult to see how senior contract lawyers will gain their necessary experience.

Coda

Perhaps a better route for Artificial Intelligence would be to replicate and then replace the work of legal bloggers and their commenters.

Perhaps the blogpost above was written by Artificial Intelligence, and perhaps also some of the comments below will be too.

If so, then Artificial Intelligence can merrily create blogposts and comments, rendering us all redundant.

Brace brace.

Comments Program

This blog auto-generates a high standard of comments, many of which are better and more interesting than the auto-generated posts.

Comments will not be published if they fall foul of a random “irksome” bug.

The law and lore of the offside offence

16th January 2023

There was a controversial offside decision this weekend in a high-profile football match.

Usually, for anyone with an interest in the game, it is plain if a player is offside or not and, if so, whether there has been an offside offence.

But this understanding is rarely based on someone studying the laws of association football.

Instead it is often based on watching hundreds – thousands – of instances, playing in matches, discussing incidents with others, reading reporters and hearing commentators.

Over time, someone can build up a good working knowledge of the rules and how they should and should not apply.

In a word, for many football fans, the knowledge of the sport is lore, rather than law.

And this is no different for many games and sports, and indeed it is true for most people in every day life about the laws of the land.

But every so often something so distinct happens that the common folk knowledge of a rule, and how it is should and should not be applied, can seem deficient.

And so we had the sight on Match of the Day of the pundits putting Law 11 of the laws of association football on the screen for viewers to read the offside offence themselves.

The one thing which struck me was one single, awful word which has no place whatsoever in any formal rules or laws, either of association football or of anything else.

“…clearly…”

Those who are geeks about the rules of football may be able to explain the purpose of that dreadful “c” word in this code.

But the job of any formal law, rather than lore, is to provide a precise rule capable of being applied to relevant facts so as to create a binary situation: the rule either applies or does not apply,  and if it applies it has either been infringed or it has not been.

It is not clear (ahem) what the “c” word adds to the rule, and it seems to make the rule less precise.

As it happens, most people who watched the incident, using only the lore of offside, believed an offence had been committed.

But the referee who had to apply the formal rule said otherwise.

And, as is so often the case, lore gets things right, and the law does not.

**

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

ESSAY “A decision so unreasonable that no reasonable authority could have come to it”

15th January 2023

This is my essay this week at Substack.

The Wednesbury case of 1948 provides one of the most famous and influential judgments in English legal history.

Because of the case, the phrase “Wednesbury unreasonableness” has become well-known legal shorthand for decisions and rules made by public bodies that are so unreasonable that no reasonable public body could have made them.

Nearly two-and-a-half thousand cases on the BAILII public database use the phrase “Wednesbury unreasonable”.

Indeed, the one thing that many people outside the West Midlands know about Wednesbury is that it associated with this extreme legal standard.

But in the judgment, the town’s corporation was found not to be acting unreasonably – at least in the legal sense.

And the case was not even decided on the basis of reasonableness, but on the basis of normal statutory construction.

So how did the little town of Wednesbury get such legal infamy?

*

To read the rest, you can go over to my Substack and subscribe.

Every week I will write an essay on an aspect of legal history, or on the relationship between law and lore/popular culture, for those kind enough to subscribe to my Substack.  The essay will be posted on Friday/Saturday/Sunday.  I will even sometime use multi-sentence paragraphs, like this one.

Last week’s essay was on the Malone case of 1979, which I reckon to be the most significant constitutional case of the last fifty years.

The weekly essay is also cross-posted on my Patreon page for Patreon supporters.

For those of you who have kindly donated through Paypal in 2022, please leave a comment marked “Private” below, and I can give you a complementary one year subscription to Substack.

It is important that nobody pays “twice” for my content.

Courts and politics and the job of judicial review

13th January 2023

What is the role of the courts when they are asked to look at decisions taken by our elected representatives?

From a legal perspective, the usual distinction is between “appeal” and “review”.

This means that a court should not examine the merits of the decision, but a court can (and should) ascertain whether it was a decision lawfully open to that decision-maker to make.

And so, the legal theory goes, as long as it is a decision within the scope of decisions open to that decision-make, it cannot (and should not) be quashed by the court.

The decision will stand, even if the court – and indeed the voters – disagree with that decision.

The decision may be unpopular but it will not be unlawful.

And therefore the role of the court should only be to judicially review a decision, rather than conduct an appeal on the merits of that decision,

*

In practice the distinction is not as easily applied as it is stated above.

Of course, certain decisions can be quashed because the wrong or an unfair procedure has been adopted.

And as such “procedural impropriety” is a long-standing heading of judicial review.

A decision can also be challenged because of a want of legal power: if a decision-maker does not have the legal power to make a certain decision then a court can hold that there has been illegality.

And “Illegality” too is a long-standing heading of judicial review.

Neither of these headings are controversial.

*

But there is a third heading (and possibly a fourth) which is often controversial.

That is when a decision is “unreasonable”.

From a lay (that is, non-lawyer) perspective, this can seem the same as a court looking at the merits of the decision.

For many lay people calling a decision is “unreasonable” is the same as saying that it is a decision you do not like.

For lawyers (supposedly) it has a different meaning: a reasonable decision is one which is reasoned in that the decision-maker can explain how the decision was arrived at.

It also means that the decision-maker only had regard to relevant considerations and disregarded irrelevant considerations.

Here, however, we are coming close to a judge second-guessing the decision-making processes of elected politicians.

And this is even more the case where fundamental rights of individuals are being interfered with, where a judge may have to assess whether the interference has been “disproportionate”.

By “disproportionate” it is often meant that the decision was not rationally connected to the supposed purpose of the legal power and/or the decision went further than necessary to achieve the public policy goal of the decision-maker.

As you can see, this is taking the judge close to the realm of politics.

And so this is where many of the flash-points in political-judicial relations occur.

Where do you think the balance should be?

*

My essay tomorrow for paying Substack subscribers will be on the fascinating story of the Wednesbury case of 1947, the “grandfather” of English cases on reasonableness.

This was the case where a judge opined that a decision can be quashed for unreasonableness only when the decision was so unreasonable that no reasonable decision-maker could have made it.

This standard has since been called “Wednesbury Unreasonableness” – which is a little unfair on Wednesbury Corporation, as the court found in 1947 that the council had acted reasonably.

To read this essay tomorrow you can subscribe here.

(The essay will also be posted on Patreon – and anyone who has made a Paypal contribution to this blog in 2022 should leave a comment marked “Private” below for a year’s complimentary subscription to my Substack.)

**

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

 

We have a coalition government, and we have had for some time

12th January 2023

Another day, another news report about the government not being able to get support from its own backbenchers for its legislative programme:

This is becoming a regular event.

The stuff of the politics of the governing party at the moment is pretty much U-turns and rebellions.

This is a governing party that was elected with a majority of 80.

Indeed, the governing party forced through Brexit in 2019-20 so as to to gain this party majority.

And this governing party has done almost nothing substantial with this nominal majority.

For despite the majority on paper, this is a government in constant negotiation with its own backbenchers.

If we drop the formalities, this is a coalition government, between the warring factions of the governing party.

And this has been the case since it was elected.

If we then look back before 2019 we also can see coalition governments: the 2010-15 formal coalition and the 2017-19 informal deal between the governing party and the Democratic Unionist Party.

Indeed, other than between 2015-17, an argument can be made that we have had, either formally or in effect, coalition government almost continuously since 2010.

Of course, this may seem counter-intuitive.

Coalitions are often seen as nice cuddly things, allowing centrists and environmental and regional parties to have disproportionate influence.

And one of the stock arguments for proportional representation is that we would have the benefit of more coalitions.

But we have had coalitions anyway.

We have just had, from a small-l liberal perspective, the wrong sort of coalitions.

But when a government cannot carry its own business without continual compromises and retreats caused by competing factions then there is perhaps no other good word for what we have.

For what we do not have is a party-based government able to implement a manifesto programme.

Indeed, other than in 2015-17, it is difficult to remember when we last had one.

**

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

Good bans v. bad bans, and how can you work out the difference?

11th January 2023

Hurrah, single-use plastics are being banned.

They are being banned in the European Union:

And now they are to be banned here:

Hurrah, hurrah.

*

But.

Some followers of this blog will say that the “Hurrahs” seem odd, given my general wariness of “banning” things.

(This 2011 New Statesman post is still one of my favourites.)

Surely: if we outlaw plastic forks, only the outlaws will have plastic forks?

There is something to that: banning a thing is not a magical spell.

All a legal prohibition means is that the thing prohibited is attended by different legal consequences than before.

And certainly banning a thing in-and-of-itself is rarely an instant solution to any problem.

Here, however, may be an example of where a ban is proportionate and likely to achieve its public interest goal, without adverse externalities.

If you really want a plastic fork, then presumably you can still make them.

If you collect plastic forks, you can still add to your collection from a suitable dealer and proudly show that collection off on your Instagram account.

The ban is instead about the use of such products in the marketplace.

According to the consultation document, the government has been mindful that there are substitutes in place, and the impact of the ban has been assessed:

The government also said that banning such things is not its preference: 

This is a sensible approach, and it is heartening to see that there is considered and apparently evidence-based approach to putting in place a prohibition.

If only all proposed prohibitions – and the continuation of existing prohibitions – were subject to such a considered approach.

Prohibitions have their place in public policy – this is a liberal blog and not a libertarian one – but too often in politics and media the “ban” is a form of magical thinking.

Let us hope this is not a single-use policy approach, and that it is recycled for other policy areas.

**

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

Banning the right to strike by key public sector workers

10th January 2023

The politics of striking provides one of the most enduring dividing lines in British politics.

On one side, there is support for, and solidarity with, unionised workers exercising their right to withdraw labour.

On the other side there is disdain for those same workers, especially if the workers are in the public sector or are otherwise providing public services, especially when it appears that the inconvenience of the wider public is being used as leverage in the dispute.

Some think the striking workers are entirely in the right, and some think they are entirely in the wrong.

And often there seems to be few in the middle (like me) who think both employers and unions are capable of getting things wrong and even of abusing their respective powers.

*

But regardless of your view on the ultimate rights and wrongs of strikes by public sector and other public service workers, there is something fundamentally objectionable in the current government’s proposals to compel certain “key” workers to attend work when they otherwise would be entitled to strike.

And this is especially objectionable when this is being done as a “sticking plaster” so as to distract from the government’s failure to properly engage in respect of the current disputes.

There is, of course, a case for certain public sector workers – the armed forces and the civil police force – not to be able to strike.

But such workers foregoing their right to strike should have alternative entitlements and arrangements to balance this loss of a right.

Simply prohibiting other key workers from being able to strike, without sufficient alternative entitlements and arrangements to balance this loss of a right, is misconceived and illiberal.

It is an authoritarian gesture, rather than a solution to a problem.

To object to such a prohibition is not necessarily to side with the striking trade unions, but it is to say that removing the right to strike is generally wrong in principle and should never be done lightly.

The current government should be looking elsewhere for solutions to the current problems with industrial unions.

The proposals should be dropped and ministers should be thinking of other ways to address our present winter of discontent.

**

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

Spare time for the monarchy

9th January 2022

You do not need to read the (as yet) unpublished book Spare, or even watch the interviews with Prince Harry, the duke of Sussex, to know there is something significant happening with the British monarchy.

But whatever the content of the book, and whatever is said (and not said) by and against the author, it will be important not see this just as an exercise in immediate cause-and-effect.

There has been a problem for sometime with how the monarchy and its circle – which we can dub for convenience “the Palace” – has conducted itself in terms of politics and media.

The “never explain, never complain” mantra, combined with the use of quiet and soft media-political influence, and the use of the extended family in public roles as “the firm”, was born out of the post-war predicament of the monarchy.

Looking back it may seem obvious that, of course, the British monarchy was going to survive and indeed thrive after the second world war.

But.

For Elizabeth II, whose uncle had had his throne taken from him by politicians and whose father had his empire turned into a commonwealth, it may not have looked so certain.

Indeed, the United Kingdom of Great Britain and Ireland, over which her grandfather had reigned, had been radically configured in her father’s lifetime.

And her husband and many others close to her knew directly how other countries had ended their monarchies.

The crown, as Elizabeth came to the throne, was precarious.

This sense of precariousness is the one thing which the Netflix series The Crown gets right, even if it gets many historical facts wrong.

As such, the “never explain, never complain” mantra, combined with the use of quiet and soft media-political influence, and the use of the extended family in public roles as “the firm”, was a holding operation.

And it worked.

But it was unusual – other monarchies, sometimes derided as “cycling monarchies” – show other European models of monarchy can survive.

And even if it worked, it does not mean that “the firm” model was permanent.

Other problems in the wider royal family and the Palace organisation also show that the model may be imploding.

The publication of Spare may be a cause of certain events, but it may also be the accelerator of certain trends, and the effect of others.

And what worked for the monarchy in the decades after 1945 may not be what will work in the decades after 2022-23.

*

In the comments below, comments with particular allegations against anybody are unlikely to be published: this is a post about constitutional issues.

**

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

New Essay at Substack: Perhaps the most significant UK constitutional case of the last fifty years

6th January 2023

Over at my new law and lore Substack, I have published an essay for paying subscribers on how the Malone case of 1979-1985 exposed the lie of our supposedly liberal constitution and changed the way we were governed.

The essay starts as follows:

Consider this simple, attractive proposition: in the United Kingdom, you are free to do as you will, unless there is a law against it.

What could be wrong with such a nice proposition: it is almost a perfect articulation of principled liberalism.

But.

This proposition can have a hidden and ugly implication.

For it also can mean that the State can do as it wishes, to you and other people, unless there is a law against it.

And the case which exposed this unpleasant truth – and helped put an end to it, so that the State was required to have a legal basis for interfering with our lives – is the 1979-85 case of Malone.

This is the story of that case, and of its effects.

You can read the rest of the essay with a paid subscription here.

*

This essay is also being posted on Patreon for those who subscribe to this blog using that medium.

For those who subscribe and donate through either Patreon or PayPal, please leave a “PRIVATE” comment below confirming you want me to add your email address to the Substack system so you can have a one-year complementary subscription to the law and lore Substack.

It is important that nobody pays “twice” for my content.

From ornament to instrument – how current politics are forcing constitutions to work in the UK and USA

6th January 2022

This is just a short post, prompted by the ongoing inability of the Republicans in the United States House of Representatives to elect a speaker.

*

There is usually no problem in a speaker being elected: the first day of the new House of Representatives is usually a ceremony, attended by the smiling families of new congressmen and congress women.

But now we are on the third day of voting, because a group of hardline Republicans are contesting what would normally be a coronation.

Two years ago today (as I set out in last week’s Substack essay), the counting and certification of electoral college votes was also converted from being a mere ceremony to something far more politically vital.

Indeed, a plan was in place to use what was normally (again) a coronation into an opportunity for the defeated president Donald Trump to somehow retain office.

And over here, during the last days before the United Kingdom left the European Union, there was an attempt to use a prorogation of parliament so as to force through a no-deal exit.

That (purported) use of the prorogation was contested and then quashed by the Supreme Court.

But usually prorogations are dull and straightforward affairs, of little interest even to political obsessives.

*

Our current volatile politics keeps converting dull and ceremonial elements of our constitutions into things that matter.

Our constitutional arrangements are being forced to work, where they previously only had to decorate.

To an extent this is a good thing: like all the functioning parts of a car occasionally being tested for a MoT test.

But it also may be a bad thing, as too much stress may mean that element of the constitution buckles and breaks.

Either way, it is certainly exciting.

But, as we know, constitutional law should not be exciting, it should be dull.

Day-to-day politics should take place within the parameters of a constitution, not constantly pressing on the edges, straining them as far as they will go.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.