Semantic Lawyering: How the Semantic Web Will Transform the Practice of Law (Part 5)

(Links to parts 1, 2, 3, and 4.)

Smart document generation

If giving legal advice is one of the two core skills of legal practitioners, the other is drafting legal documents. No matter what area of the law you practice in, you will need to generate a brief, a lease, a will, a contract, a certificate of incorporation—you name it. It is no surprise therefore that ever since PCs were first introduced into law firms, lawyers have been looking for ways of using them to make generating documents faster and easier. Word processors helped, and precedent data banks did too, but the Holy Grail in this field is a system that can generate a complete, airtight first draft of the required legal document at the click of a mouse. The idea of software that can generate standardized legal documents is not new. Software packages that produce documents on the basis of certain specified inputs have been on the market for some time. They range from simple electronic forms or automated cut-and-paste to sophisticated software that can draw on internal definitions and even do a measure of logic checking.[1] Most law firms nowadays have in place systems of varying degrees of sophistication to avoid re-inventing the wheel each time a legal document is needed.

The Semantic Web promises to take the evolution of document generation further—much further. Advanced functionality such as checking the internal consistency of a document, or checking for compliance with a specified body of rules can be achieved by a non-semantic application built for that purpose. But where semantic applications will really break ahead of the pack is in their ability to draw on a web of structured online legal data and in their interoperability. Being able to access pre-existing taxonomies and rules will facilitate the task of developers, as much of the “logic” an application needs to process will already have been formalized and tested by a broad, collaborative community.

Furthermore, because the task of developing those taxonomies and applying them to data is an ongoing process, less effort will be needed by individual developers to keep applications up-to-date. Suppose a semantic application checks for consistency of the document with a certain body of rules. If a relevant statute is amended, or a court decision clarifies the interpretation of a given rule, there is no need for developers to update the code of the application to implement the amendments. Whatever authoritative online source of legal rules the application draws on can be updated, and all applications drawing on that source will stay abreast of the latest law, without needing to download an update. Another advantage of using smart data is that generating documents would involve more than just producing a human-readable document. The end product would not be a simple text file. Rather, as we have seen, the document could include metadata encoded in accordance with open, machine-readable standards, referencing online taxonomies and rules that give meaning to the data. This means that any other application, whether proprietary or otherwise, which uses those open standards, will be able to process that metadata, and understand the structure and content of the document. The Semantic Web guarantees interoperability by default, and avoids the problem of “smart” documents that are only smart to users who own a particular proprietary application.

Executable semantic contracts

If the content of the contract is machine-readable, parts of it may also be machine-executable: if applications can determine the rights and obligations of the parties to such a “semantic contract,” there is no reason why they could not also process payments, notify the parties when notice of renewal is due, renew the contract on specified conditions, etc. In addition to the efficiencies gained in generating the contracts on the lawyer’s side, semantic documents could yield huge gains on the client side. Rather than manually going through each agreement to determine who owes what to whom, when, and on what conditions, semantic contracts could be fed into software that will do this processing automatically.[2] With this technology, therefore, the law firm gets to cut the costs of production (and therefore, eventually, the cost of the service), while the client gets an enhanced product that enables it to cut its costs. Expect demand for semantic contracts and the applications that generate them.

Plain English vs. metadata

As we have seen, there are limits to the extent to which the plain-English meaning of legal propositions can be translated into formal rules. However, the considerations relating to these limitations are somewhat different in the case of contracts, because of their nature as private legislation between the parties. Here, rather than translating pre-existing laws, the parties are free to choose to draft their agreements using formalized terms and rules that lend themselves to automated analysis and processing. This raises the question of the relationship between the plain-English meaning of the contract (along with the plain-English laws that govern it) and the possibly divergent machine-readable meaning encoded in the metadata. Conceptually, a contract is an agreement between the parties, and the written contract is simply a memorandum or record of that agreement. The rules of contractual interpretation are concerned with ascertaining what rights and obligations the parties have consented to undertake. If I consent to be bound by a semantic contract, am I consenting to be bound by the plain-English terms only, or would the metadata, and the taxonomies the metadata refers to, also guide the interpretation of the agreement?

To put it another way, if I enter into a semantic contract, and the execution of the machine-executable parts of that contract is not what I expected on the basis of the plain English-wording of the contract, has the contract been breached? Suppose that there is no problem with the application that does the executing, but rather that the divergence is caused by differences between the logical implications of the semantic concepts used in the metadata on the one hand, and the positive laws as understood by lawyers and applied by judges on the other. The conservative answer is that the execution and the metadata that enables it are entirely distinct from the contract itself, and machine-execution is ultimately no different from a human agent performing the contract, properly or improperly. But the contrary viewpoint is that what semantic metadata does is to incorporate meaning by reference to definitions and rules external to the data itself. Is that so different from incorporation by reference in contract law, for example by referring to terms and conditions on the back of a parking ticket, or including Incoterms in international trade contracts? Why should the metadata not influence our interpretation of the contract?

Meaning vs. meaning

There are deeper questions at issue here, relating to the fundamental differences between machine-executable computer code and legal norms. The kind of “meaning” encoded using Semantic Web standards is deeply different from the kind of “meaning” you and I express when speaking about the law, or the kind expressed by law-makers in creating the law. I will leave these difficult questions hanging for now, but I will hazard to predict that, as machine-executable contracts gain currency and the idea of automated determination and processing of legal obligations becomes commonplace, those fundamental differences between code and law will begin to blur.

[1] David Siegel, Pull: The Power of the Semantic Web to Transform Your Business, p. 189.

[2] See Siegel, p. 190.

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