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{{a|devil|}}So let us state the manifest failings of [[reg tech]]: ''[[rent-seeking]]'' and ''[[iatrogenics]]''.
{{a|projects|}}The [[legaltech]] proposition is obvious: replace this laborious, error-prone, analogue, ''human'' process with an authenticated, governed, audited, straight-through processed, ''fast'' online digital interaction. So why doesn’t it work, and what can we do about it?
 
[[legaltech]]’s shortcomings present in different ways but boil down to the same thing: ''[[rent-seeking]]''.
*'''It’s [[iatrogenic]]''': Because the provider’s primary interest is its annuity, ''[[iatrogenics|the cure tends, in practice, to be worse than the disease]]''.
*'''It’s expensive''': Every participant is in it to make a turn. Their interest is in ''participating'', and ''making a turn'' first, and only then in the “desired outcome”.
*'''It’s prone to ''use-case'' [[obsolescence]]''': Its [[proprietary]] nature means [[legaltech]] tends to be tightly controlled, top-down managed and targeted ''abstractly'' at a ''perceived'' demand and an ''anticipated'' future state.<ref>[[Thought leader]]s are no better at predicting the future of [[Legal services delivery|legal services]] than they have been at anything else.</ref> But the future, as imagined by the [[thought leader]]s of the [[legaltech]], was forged in the ''now'', which tomorrow will be the past. Just as previously imagined futures from the past have proven — flying cars, off-world replicants, the colonisation of Mars, the [[singularity]], [[A World Without Work: Technology, Automation, and How We Should Respond - Book Review|a world without work]] — predicting the future was, and remains, ''hard''. The answer is not to try: to leave the architecture open to users to imagine as they go. No-one predicted SETI@home, after all.<ref>The internet was revolutionary because it imagined ''no'' future, but left that — and continues to leave it, right? — to users. By the way, [https://boinc.berkeley.edu/ BOINC] is a bit of a clue to where this is all going.</ref> But “leaving everything to the user” doesn’t give a [[rentier capitalist]] much to do, so [[rent-seeker]]s tend to constrain their products, requiring paid-for development, and consigning them to short-term [[obsolescence]] ''without continual maintenance''. And maintenance means ''rent''.
*'''It’s prone to ''competition'' [[obsolescence]]''': To treat what should be a ''utility'' as a ''profit opportunity'' exposes you to another source of obsolescence. ''Competition''. How can you know ''your'' platform will be ''the'' platform? How do you keep that position once you’ve got it? ''Friends Reunited'' ring a bell?
==The problem==
===[[Rent-seeking]]===
===[[Rent-seeking]]===
'''''[[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 it saves''.
We’re yet to find a [[legaltech]] provider whose business model does not involve ''extracting [[rent]]''. This they commonly justify by reference to the ''value'' their product provides, which they equate to the ''total cost of labour and infrastructure'' it saves. Historians, and those who enjoy irony, will notice how, in equating the value of a service to the net amount of labour it requires — or in this case “saves”, this resembles the [[labour theory of value]].
 
You might ask how a vendor could know. You might also wonder what there is to gain by cutting the wage bill of some school-leavers in Bucharest, if you pay most of what you save away again, to a start-up in Old Street which bought some code from some school-leavers in Bucharest. Especially if that vendor will then be able to intermediate your process for the hereafter, adding the cheerful chime of a clipped ticket each time his machine spits out another document, or while your stuff collects dust on his server.<ref>This is called “hosting” and it seems to be a cash cow. But aren’t terabytes of data storage, like, ''pennies'' these days?</ref> 


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 capitalist]]s, that’s why.  
Wasn’t the promise of the [[Information technology|information revolution]] ''grander'' than that? Weren’t things meant to be ''free'', not just ''marginally cheaper but a lot more complicated''?
===[[Iatrogenic|The cure and the disease]]===
'''''[[Iatrogenic]]''''' — it is a cure that is worse than the disease<ref>This is a super concept and if you haven’t come across it you owe it to yourself and {{author|Nassim Nicholas Taleb}} to read about it in his superbly bombastic {{br|Incerto}} series.</ref> — in that in promising to ''alleviate'' the [[tedium]] of all that [[boilerplate]] — all the pernickitiness and the low-level wrangling over [[representations and warranties]] — technology throws open the window on a world of exactly that kind of low-level tinkering. The cost of pedantry has ''plummeted''.  


Cynics might wonder how these [[reg tech]] [[thought leader]]s can ''know'' how much money their technology will save, and how much time they have spent calculating the indirect costs of its implementation.
In the olden days, the [[Anal paradox|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. Nowadays,  [[contract]]s can be infinitely, infinitesimally varied and endlessly customised. One can cater for any [[Pedantry|predilection]], whim, [[For the avoidance of doubt|doubt]] or [[proviso]]. We can put one in every line, if that is our wish. We can command that a space between words must be, or not be, ''italic''.<ref>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.</ref>


Should we be so fixated on cutting the wage bill of a handful of school-leavers in Sarajevo, that we will pay a guy in Old Street for code he bought from some school-leavers in Bucharest, if the price is that he can intermediate our process for the hereafter, adding nothing but the cheerful chime of a clipped ticket each time his machine spits out another document, or even just while our documents collect dust on his server (this is called “hosting”)?
This should not be a surprise. The word-processor did not ''shorten'' legal discourse. [[Email]] did not truncate communication. When Andy gaveth, it was not Bill, but ''our yen for verbal diarrhoea'' that tooketh away.


Wasn’t the promise of the information revolution something grander than that? Wasn’t stuff meant to be ''free'', not just ''marginally cheaper'' and more complicated?
[[Technology]] promised a revolution but appealed to our basest instincts. [[Technology]] made contracts ''worse''. What reason is there to think it will suddenly stop now?
===[[Iatrogenic]]===
'''''[[Iatrogenic]]''''' — a cure that is worse than the disease<ref>This is a super concept and if you haven’t come across it you owe it to yourself and {{author|Nassim Nicholas Taleb}} to read about it in his superbly bombastic {{br|Incerto}} series.</ref> — 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 [[Anal paradox|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. [[Contract]]s can be infinitely pedantic, variable, customisable. We can cater for any [[Pedantry|predilection]], whim, [[For the avoidance of doubt|doubt]] or [[proviso]]. We can find and propagate [[Biggs constant]]s 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. Note note the interests here: those providing the cure have a direct incentive — in fact, a ''need'' — to ''continue'' helping, because that is how they get paid. They design their disintermediating machines to only disintermediate so far: it must still remain sufficiently dependent on their code, their systems, their expertise, that the users are obliged to pay an annuity for it. To pay ''[[rent]]''.
It won’t, if the [[legaltech]] [[Rent-seeker|rent-seekers]] have any say in it. Note the misalignment of interests: vendors have a direct incentive — in fact, a ''need'' — not just to fix, but to ''continue'' “fixing”, because “fixing” is how they get paid. They design their disintermediating machines to only disintermediate ''so far'': users must remain dependent enough on their code, their systems and their expertise, that they have to pay an annuity for it. To pay ''[[rent]]''.<ref>I have lost count of the times that that a tech provider has told me users cannot have edit or configuration rights on a piece of software. There are two explanations for this, and neither is edifying: one is that the software is so fragile or poorly designed that allowing a user to tinker with it will make it break; another is that it is so basic that allowing users to see it will reveal how simple it really is.</ref>
===The fault in our stars===
===The fault in our stars===
Our friends in the [[management consulting]] profession (also [[rent-seeker]]s, needless to say) encourage this disposition through the dogma of [[outsourcing]]. Here the gist is: if you have a convoluted process that is costing you time and money, [[Outsourcing|outsource]] it, to someone better specialised, incentivised and remunerated to do it, who can do it cheaper, better and — thanks the magic of {{author|Adam Smith}}’s invisible hand — at the optimal cost. In this way do we ''entrench'' [[rent-seeker]]s, by building an entire ([[rent-seeking]]) infrastructure around this newly articulated [[process]] — with its own [[middle management]], [[operations]], [[compliance]], [[internal audit]], [[procurement]], you name it — without ever asking whether the process was that important in the first place.  
Our friends in the [[management consulting]] profession (also [[rent-seeker]]s, needless to say) encourage this disposition through the dogma of [[outsourcing]]. Here the gist is: if you have a convoluted process that is costing you time and money, [[Outsourcing|outsource]] it, to someone better specialised, incentivised and remunerated to do it, who can do it cheaper, better and — thanks the magic of {{author|Adam Smith}}’s invisible hand — at the optimal cost. In this way do we ''entrench'' [[rent-seeker]]s, by building an entire ([[rent-seeking]]) infrastructure around this newly articulated [[process]] — with its own [[middle management]], [[operations]], [[compliance]], [[internal audit]], [[procurement]], you name it — yes, even [[legal]] — without ever asking ''whether the process was all that important in the first place''.  


But the new machinery is so costly to remove, that it is easier just to live with it, from time to time tweaking it, optimising it, adjusting it, relocating it from a service centre in Bangalore to one in Manilla, ''every little fiddle keeping that entire [[Bureaucracy|bureaucratic]] iron lung fully engaged''. And no [[management consultant]] will tell you the obvious truth: had you ''decomplicated'' the process in the first place — just got rid of it — perhaps giving away some peripheral protections in the mean time, ''none of this would have been necessary''.  
Once imposed, the new machinery is so costly to remove that it is easier just to live with it, from time to time tweaking it, optimising it, adjusting it, relocating it from a service centre in Bangalore to one in Manilla, ''every little fiddle keeping that entire [[Bureaucracy|bureaucratic]] iron lung fully engaged''. And no [[management consultant]] will ever tell you the obvious truth: had you ''decomplicated'' the process in the first place — or, hang it, just got ''rid'' of it — at the cost of some some peripheral academic protections, ''none of this would have been necessary''.  


But, but, but! The risk! The organisation must be protected!  
But, but, but! The risk! The organisation must be protected!  
==The solution==
So where does this leave us?
{{sideboxtop|align=left|width=50|background=#F2ECCE}}
===The [[cross default]] challenge===
Here is a challenge: one day, out of the blue, ask a risk officer to explain, exactly, what [[cross default]] is and how it works. On the spot. No phone-a-friend. No ask-the-audience. Expect blank looks and notebooks.<ref>[https://en.wikipedia.org/wiki/Sons_of_the_Silent_Age. Listening, as they do, to tracks by Sam Therapy and King Dice...]</ref>


Here is a challenge: one day, out of the blue, ask any of these people who insist that it is important to explain, exactly, what [[cross default]] is and how it works. On the spot. No phone-a-friend. No ask-the-audience. Expect blank looks and notebooks.<ref>https://en.wikipedia.org/wiki/Sons_of_the_Silent_Age.</ref>
Now ask yourself this: it it better to keep that peripheral right to [[cross default]] with all the [[tedious]] arguments it invites — whether triggered by [[default]] or [[acceleration]], as to the level and symmetry of [[Threshold Amount - ISDA Provision|thresholds]], what counts as [[indebtedness]] and whether to include [[derivatives]] or [[deposits]], what sorts of [[grace period]]s should be allowed, whether to carve out operational errors or settlement failures — is it better to keep all of that fidgetery and move the people who handle it out to Hanoi — or just ''strike it out of your contract forms altogether''?


Now ask yourself this: it it better to keep that peripheral right to [[cross default]] with all the [[tedious]] arguments it invites — whether default or acceleration, as to level and symmetry of [[Threshold Amount - ISDA Provision|thresholds]], what counts as [[indebtedness]], what sorts of [[grace period]]s should be allowed, whether to include [[derivatives]], [[deposits]], or to carve out operational errors or settlement failures, and move the people who handle this and like issues out to Hanoi — all of that to cater for a contingency ''that has never arisen in the history of the derivatives market'' — or just ''strike it out of your contract forms altogether''? As long as [[cross default]] seems like a competitive advantage; as long as we think our boilerplate is some kind of proprietary technology, we consign ourselves to a permanent arms race ''with our own shadows''.
Does it change your answer to discover that a [[cross default]] right ''has never been exercised in the history of the derivatives market''?<ref>I confess this is a bold assertion and I may be over my skis on it, but I have done some research. I am yet to find any example of a crust fault being exercised in an isda. If you know of one, please do get in touch. Confidentiality and discretion is assured: I just would like to know.</ref>


So where does this leave us?
As long as [[cross default]] seems like a competitive advantage; as long as we think our boilerplate is some kind of proprietary technology, we consign ourselves to a permanent arms race ''with our own shadows''.
{{Tablebottom}}
===[[Satisfaction]] is unsatisfactory===
[[Mick Jagger]] and [[Keith Richards]] composed [[Satisfaction]] in 15 minutes whilst sitting by a pool in Florida. They are still, 55 years later, reaping colossal dividends from that inspired quarter hour. Fair play to them: this may be the law, but it is not good law. It is a bad model for [[legaltech]].
 
[[Rent-seeking]] encourages us to squirrel away [[Verbiage|verbal mush]] on the grounds that it is “proprietary technology”. There is ''nothing'' — utterly nil — that is special, clever or even ''desirable'' about legal [[boilerplate]].<ref>I take a liberal view of [[boilerplate]] as “anything that doesn't make it into the termsheet”.</ref>


[[Rent-seeking]] encourages us to squirrel away [[Verbiage|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 1999|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 {{isdaprov|ATE}}s. No-one ''cares''. No-one ''likes'' it. No-one ''wants'' it. It is a regrettable externality; a grim fact of life. It is not the act; it is the rubber johnny and the [[signed, sealed, delivered|duly witnessed]] consent and [[disclaimer]] you need ''before'' you get on with it.<ref>Oh, and make sure there’s a [[counterparts]] clause for good measure.</ref> [[Ask nicely|It is the mask you need to go into the supermarket]].
[[Boilerplate]] is the point where [[marginal utility]] touches zero. That ISDA schedule — yes, friends, the whole god-forsaken thing, even the customised {{isdaprov|ATE}}s? No-one ''cares''. No-one ''likes'' it. No-one ''wants'' it. It is a regrettable externality; a grim fact of life. [[Legal]] [[negotiation]] is the dreary formality one must go through ''to get to the heart of the deal''. It is not the sausages; it is [[Ask nicely|the mask you need to put on so you can go into the supermarket]] and ''get'' the sausages.


===[[Extended phenotype]]s and the mercurial arrow of [[causation]]===
===[[Extended phenotype]]s and the mercurial arrow of [[causation]]===
So these [[feedback loop]]s drive us ''away'' from the place we want to go. Instead of a self-service ethos of simplified, standardised, user-friendly<ref>And no, the “user” is ''not'' the [[legal eagle]]: the user is the ''client''.</ref> components that, though continual refinement are honed, standardised and further simplified, we have processes which keep their existing convolution, get worse, all the time supporting a more elaborate infrastructure that purportedly is there to support them.  
So these [[feedback loop]]s drive us ''away'' from the place we want to go. Instead of a self-service ethos of simplified, standardised, user-friendly<ref>And no, the “user” is ''not'' the [[legal eagle]]: the user is the ''client''.</ref> components that, though continual refinement, are honed, standardised and simplified, we have processes which keep their existing convolution, get worse, all the time supporting a more elaborate infrastructure that purportedly is there to support them.  
 
Recall once again, {{author|Yuval Harari}}’s observation about the domestication of wheat,<ref>Harari’s suggestion, which owes something to [[Douglas Adams]] and his [[The Hitch-Hiker’s Guide to the Galaxy|pan-dimensional hyper-intelligent mice]], is that ''wheat'' domesticated ''homo sapiens'' and not ''vice versa''. See https://www.ynharari.com/topic/ecology/ </ref> and apply it here: is your [[legaltech]] implementation, and its attendant support structure, some kind of [[extended phenotype]] that has evolved: a marvellous beaver dam; an adaptation wrought magically on the environment so this delicate but vital process can survive?
 
Or is it the ''opposite''? Is the ''process'' it purports to fix the adaptation, the [[extended phenotype]] upon which the whole [[rent-seeking]] infrastructure depends to survive?


Recall once again, {{author|Yuval Harari}}’s observation about the domestication of wheat,<ref>Harari’s suggestion, which owes something to [[Douglas Adams]] and his [[The Hitch-Hiker’s Guide to the Galaxy|pan-dimensional hyper-intelligent mice]], is that ''wheat'' domesticated ''homo sapiens'' and not ''vice versa''. See https://www.ynharari.com/topic/ecology/ </ref> and apply it here: is the [[rent-seeking]] re-intermediated support structure that has evolved an some kind of [[extended phenotype]]: a beaver dam; an adaptation wrought on the environment to ensure the process can survive, ''or is it the ''opposite''? Is the process is an external adaptation that this [[rent-seeking]] infrastructure depends upon to survive. Which way does the causal arrow flow? ''Who'' has domesticated ''whom''?  
Which way does the causal arrow flow? ''Who'' domesticated ''whom''?  


Now bear in mind this: staying with this process is not a zero-cost option. Staying with this infrastructure is ''monstrously'' expensive. Every year, this is costing you tens or hundreds of millions of dollars. ''Each''. There is good money to spend to stop you throwing other good money after bad. ''[[Contract negotiation]] is not a profit centre for any client. It is a cost.''
Staying with this process is not a zero-cost option. This infrastructure is ''monstrously'' expensive. Every year, it costs tens or hundreds of millions of dollars. ''For each firm''. ''[[Contract negotiation]] is not a profit centre for anyone but its practitioners''.
==The pitch==
Spend good money ''here'', instead of throwing it after bad money you’ve spent ''there''. Design an open source, open-architecture system with [[feedback loop]]s that push us ''towards'' a simplified, standardised centre, rather than away from it. Emphasise transparency and commonality, not proprietary technology. In essence, build a [https://github.com/ GitHub] for legal terms.


===What to do===
See [[LegalHub]] for a high-level technical articulation of the platform.
Design a system with feedback loops that push us towards a simplified, standardised centre, that emphasises transparency and commonality, not proprietary technology. In essence, a GitHub for legal terms:
*'''A centralised hub''' with free, unlimited access for everyone whether as a user or a contributor.
*'''A phased approach''' moving gradually from traditional text-based contracts — how folks do things now, for better or worse — to networked, authenticated smart contracts.
:*'''Day''' 1: Purely a text repository to enable people to do more easily what they already do today.
:*'''Day 2''': Expect development to be sloooooooow at first. So design a permissive, developable architecture rather than designing a fixed structure now with an future state in mind. ''We are hopeless at predicting the future''.
:*'''Day 100''': Expect usage to develop the system iteratively, like an adaptive Ouija board, according to demand.
*'''Give content away'''. Freely. Allow people to use all of your stuff without limit. The more of your stuff is on there the greater the chance it will become a standard.
*'''Be permissive''': Allow people to copy, derive, refine and improve without limit. Assuming it is version controlled you can keep your model. But allow the world to make it better.*Find strategic partners. Especially firms who nominally have conflicting interests to yours. So: (i) competitors; (ii) buyside firms; (iii) small firms; (iv) users
*'''Pay for it'''. All of it. Pay a ''lot''. Consider this a down-payment on the savings you will make when you unwind the [[military-industrial complex]] that is your outsourcing arrangements have become over 20 years. Encourage other strategic partners to pay too, but no penalties if they don’t. The more you all pay, the better the product will be. Pay to make it easy for anyone to engage and use.
*'''Reputation management''' techniques to surface most popular forms, segments, components.
{{outsourcing}}
{{outsourcing}}
*[[ClauseHub]]
*[[LegalHub]]
*[[Legal services delivery]]
*[[Legal services delivery]]
*[[Why is reg tech so disappointing?]]
*[[Why is legaltech so disappointing?]]


{{ref}}
{{ref}}

Latest revision as of 07:26, 19 April 2023

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The legaltech proposition is obvious: replace this laborious, error-prone, analogue, human process with an authenticated, governed, audited, straight-through processed, fast online digital interaction. So why doesn’t it work, and what can we do about it?

legaltech’s shortcomings present in different ways but boil down to the same thing: rent-seeking.

  • It’s iatrogenic: Because the provider’s primary interest is its annuity, the cure tends, in practice, to be worse than the disease.
  • It’s expensive: Every participant is in it to make a turn. Their interest is in participating, and making a turn first, and only then in the “desired outcome”.
  • It’s prone to use-case obsolescence: Its proprietary nature means legaltech tends to be tightly controlled, top-down managed and targeted abstractly at a perceived demand and an anticipated future state.[1] But the future, as imagined by the thought leaders of the legaltech, was forged in the now, which tomorrow will be the past. Just as previously imagined futures from the past have proven — flying cars, off-world replicants, the colonisation of Mars, the singularity, a world without work — predicting the future was, and remains, hard. The answer is not to try: to leave the architecture open to users to imagine as they go. No-one predicted SETI@home, after all.[2] But “leaving everything to the user” doesn’t give a rentier capitalist much to do, so rent-seekers tend to constrain their products, requiring paid-for development, and consigning them to short-term obsolescence without continual maintenance. And maintenance means rent.
  • It’s prone to competition obsolescence: To treat what should be a utility as a profit opportunity exposes you to another source of obsolescence. Competition. How can you know your platform will be the platform? How do you keep that position once you’ve got it? Friends Reunited ring a bell?

The problem

Rent-seeking

We’re yet to find a legaltech provider whose business model does not involve extracting rent. This they commonly justify by reference to the value their product provides, which they equate to the total cost of labour and infrastructure it saves. Historians, and those who enjoy irony, will notice how, in equating the value of a service to the net amount of labour it requires — or in this case “saves”, this resembles the labour theory of value.

You might ask how a vendor could know. You might also wonder what there is to gain by cutting the wage bill of some school-leavers in Bucharest, if you pay most of what you save away again, to a start-up in Old Street which bought some code from some school-leavers in Bucharest. Especially if that vendor will then be able to intermediate your process for the hereafter, adding the cheerful chime of a clipped ticket each time his machine spits out another document, or while your stuff collects dust on his server.[3]

Wasn’t the promise of the information revolution grander than that? Weren’t things meant to be free, not just marginally cheaper but a lot more complicated?

The cure and the disease

Iatrogenic — it is a cure that is worse than the disease[4] — in that in promising to alleviate the tedium of all that boilerplate — all the pernickitiness and the low-level wrangling over representations and warranties — technology throws open the window on a world of exactly that kind of low-level tinkering. The cost of pedantry has plummeted.

In the olden days, 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. Nowadays, contracts can be infinitely, infinitesimally varied and endlessly customised. One can cater for any predilection, whim, doubt or proviso. We can put one in every line, if that is our wish. We can command that a space between words must be, or not be, italic.[5]

This should not be a surprise. The word-processor did not shorten legal discourse. Email did not truncate communication. When Andy gaveth, it was not Bill, but our yen for verbal diarrhoea that tooketh away.

Technology promised a revolution but appealed to our basest instincts. Technology made contracts worse. What reason is there to think it will suddenly stop now?

It won’t, if the legaltech rent-seekers have any say in it. Note the misalignment of interests: vendors have a direct incentive — in fact, a need — not just to fix, but to continue “fixing”, because “fixing” is how they get paid. They design their disintermediating machines to only disintermediate so far: users must remain dependent enough on their code, their systems and their expertise, that they have to pay an annuity for it. To pay rent.[6]

The fault in our stars

Our friends in the management consulting profession (also rent-seekers, needless to say) encourage this disposition through the dogma of outsourcing. Here the gist is: if you have a convoluted process that is costing you time and money, outsource it, to someone better specialised, incentivised and remunerated to do it, who can do it cheaper, better and — thanks the magic of Adam Smith’s invisible hand — at the optimal cost. In this way do we entrench rent-seekers, by building an entire (rent-seeking) infrastructure around this newly articulated process — with its own middle management, operations, compliance, internal audit, procurement, you name it — yes, even legal — without ever asking whether the process was all that important in the first place.

Once imposed, the new machinery is so costly to remove that it is easier just to live with it, from time to time tweaking it, optimising it, adjusting it, relocating it from a service centre in Bangalore to one in Manilla, every little fiddle keeping that entire bureaucratic iron lung fully engaged. And no management consultant will ever tell you the obvious truth: had you decomplicated the process in the first place — or, hang it, just got rid of it — at the cost of some some peripheral academic protections, none of this would have been necessary.

But, but, but! The risk! The organisation must be protected!

The solution

So where does this leave us?

The cross default challenge

Here is a challenge: one day, out of the blue, ask a risk officer to explain, exactly, what cross default is and how it works. On the spot. No phone-a-friend. No ask-the-audience. Expect blank looks and notebooks.[7]

Now ask yourself this: it it better to keep that peripheral right to cross default with all the tedious arguments it invites — whether triggered by default or acceleration, as to the level and symmetry of thresholds, what counts as indebtedness and whether to include derivatives or deposits, what sorts of grace periods should be allowed, whether to carve out operational errors or settlement failures — is it better to keep all of that fidgetery and move the people who handle it out to Hanoi — or just strike it out of your contract forms altogether?

Does it change your answer to discover that a cross default right has never been exercised in the history of the derivatives market?[8]

As long as cross default seems like a competitive advantage; as long as we think our boilerplate is some kind of proprietary technology, we consign ourselves to a permanent arms race with our own shadows.

Satisfaction is unsatisfactory

Mick Jagger and Keith Richards composed Satisfaction in 15 minutes whilst sitting by a pool in Florida. They are still, 55 years later, reaping colossal dividends from that inspired quarter hour. Fair play to them: this may be the law, but it is not good law. It is a bad model for legaltech.

Rent-seeking encourages us to squirrel away verbal mush on the grounds that it is “proprietary technology”. There is nothing — utterly nil — that is special, clever or even desirable about legal boilerplate.[9]

Boilerplate is the point where marginal utility touches zero. That 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. Legal negotiation is the dreary formality one must go through to get to the heart of the deal. It is not the sausages; it is the mask you need to put on so you can go into the supermarket and get the sausages.

Extended phenotypes and the mercurial arrow of causation

So these feedback loops drive us away from the place we want to go. Instead of a self-service ethos of simplified, standardised, user-friendly[10] components that, though continual refinement, are honed, standardised and simplified, we have processes which keep their existing convolution, get worse, all the time supporting a more elaborate infrastructure that purportedly is there to support them.

Recall once again, Yuval Harari’s observation about the domestication of wheat,[11] and apply it here: is your legaltech implementation, and its attendant support structure, some kind of extended phenotype that has evolved: a marvellous beaver dam; an adaptation wrought magically on the environment so this delicate but vital process can survive?

Or is it the opposite? Is the process it purports to fix the adaptation, the extended phenotype upon which the whole rent-seeking infrastructure depends to survive?

Which way does the causal arrow flow? Who domesticated whom?

Staying with this process is not a zero-cost option. This infrastructure is monstrously expensive. Every year, it costs tens or hundreds of millions of dollars. For each firm. Contract negotiation is not a profit centre for anyone but its practitioners.

The pitch

Spend good money here, instead of throwing it after bad money you’ve spent there. Design an open source, open-architecture system with feedback loops that push us towards a simplified, standardised centre, rather than away from it. Emphasise transparency and commonality, not proprietary technology. In essence, build a GitHub for legal terms.

See LegalHub for a high-level technical articulation of the platform.

See also

References

  1. ↑ Thought leaders are no better at predicting the future of legal services than they have been at anything else.
  2. ↑ The internet was revolutionary because it imagined no future, but left that — and continues to leave it, right? — to users. By the way, BOINC is a bit of a clue to where this is all going.
  3. ↑ This is called “hosting” and it seems to be a cash cow. But aren’t terabytes of data storage, like, pennies these days?
  4. ↑ This is a super concept and if you haven’t come across it you owe it to yourself and Nassim Nicholas Taleb to read about it in his superbly bombastic Incerto series.
  5. ↑ 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.
  6. ↑ I have lost count of the times that that a tech provider has told me users cannot have edit or configuration rights on a piece of software. There are two explanations for this, and neither is edifying: one is that the software is so fragile or poorly designed that allowing a user to tinker with it will make it break; another is that it is so basic that allowing users to see it will reveal how simple it really is.
  7. ↑ Listening, as they do, to tracks by Sam Therapy and King Dice...
  8. ↑ I confess this is a bold assertion and I may be over my skis on it, but I have done some research. I am yet to find any example of a crust fault being exercised in an isda. If you know of one, please do get in touch. Confidentiality and discretion is assured: I just would like to know.
  9. ↑ I take a liberal view of boilerplate as “anything that doesn't make it into the termsheet”.
  10. ↑ And no, the “user” is not the legal eagle: the user is the client.
  11. ↑ Harari’s suggestion, which owes something to Douglas Adams and his pan-dimensional hyper-intelligent mice, is that wheat domesticated homo sapiens and not vice versa. See https://www.ynharari.com/topic/ecology/
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