LegalHub: theory

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So let us state the manifest failings of reg tech: rent-seeking and iatrogenics.

Rent-seeking in that no reg tech provider has figured out a business model for how to be suitably paid, other than by extracting rent. This they commonly do by reference to the value their product provides, which they equate to the total cost of labour and infrastructure they save.

Historians and lovers of crushing irony will note the resemblance of this notion to the labour theory of value — that the economic value of a service is equals the total amount of labour required to produce it — or in this case, that one would be required to hire to produce it without this new piece of kit. Why “ironic”? Because it is odd to hear a bedrock intellectual foundation of Marxism babbling from the mouths of small-time rentier capitalists, that’s why.

In any case, we are supposed to be so grateful for saving wage bill for a handful of school-leavers in a service-centre in Sarajevo, we will gladly pay the same amount to a guy in Old Street who worked up code from some moonlighting school-leavers in Bucharest, and let him intermediate our processes for the hereafter, doing nothing but cheerfully clipping our ticket each time the machine spits out another document, or even just sits collecting dust on his server (this is called “hosting”). But the promise of the information revolution is something different it is to disintermediate. Shit is meant to be free, not just marginally cheaper than snail mail.

Iatrogenic in that in promising to alleviate the tedium of the boilerplate, pernickitiness and low-level wrangling over representations and warranties, technology throws open the window wide on a panoramic vista of unlimited low-level tinkering. Before the information revolution, the anality of contracts was bounded by any lawyer’s natural capacity — deep, to be sure, but ultimately finite — to hold a superstructure of piecemeal salutary conditionality in her head. With a laptop and an adeptness with JavaScript, that limit has now been taken away. Contracts can be infinitely pedantic, variable, customisable. We can cater for any predilection, whim, doubt or proviso. We can find and propagate Biggs constants at will. We can put one in every line, if that is our wish. We can command that a space between words must be italic. When the great J. M. F. Biggs first isolated and documented a Biggs hoson in the wild — the celebrated bold full stop in a “Boats” repackaging — it was a once-in-a-generation event.

This should not be a surprise. The invention of the word-processor did not shorten legal discourse. The arrival of email did not truncate the nature or volume of our communication. Andy gaveth, but it was not Bill, but our innate gift for verbal diarrhoea that took away.

So where does this leave us?

Rent-seeking encourages us to squirrel away verbal mush on the grounds that it is “proprietary technology”: we straight-facedly say “my fifteen minutes of effort, wherein I rendered a Contracts (Rights of Third Parties) Act clause, must perpetually be rewarded.” This is a profoundly awful disposition. Sorry, folks, but there is nothing — utterly nil — that is special, clever or even desirable about legal boilerplate. It is to witness marginal utility at the point it touches zero: it is the dreary formality one must go through to get to the heart of the deal. The same goes, my friends, for your ISDA schedule — yes, friends, the whole god-forsaken thing, even the customised ATEs. No-one cares. No-one likes it. No-one wants it. It is a regrettable externality; a grim fact of life. Before you hop in the sack, you need a j-bag, and a signed, sealed, delivered, duly witnessed consent and disclaimer — and make sure there's a counterparts clause for good measure. Before you enter the supermarket, you need a mask.

See also

• ClauseHub
• Legal services delivery
• Why is reg tech so disappointing?