If you’re interested in technology, you will confront this question at some point: should I learn to code?
For many people, including lawyers, coding is something you can ignore without serious consequences. I don’t understand how my microwave oven works, but that will not stop me from using it. Attending that briefing and asking the product guys good questions is probably enough for most lawyers to do your work.
The truth, though, is that life is so much more. In the foreword of the book “Law and Technology in Singapore”, Chief Justice Sundaresh Menon remarked that technology today “permeates, interfaces with, and underpins all aspects of the legal system, and indeed, of society”.
I felt that myself during the pandemic when I had to rely on my familiarity with technology to get work done. Coincidentally, I also implemented my docassemble project at work, using technology to generate contracts 24/7. I needed all my coding skills to whip up the program and provide the cloud infrastructure to run it without supervision. It’s fast, easy to use and avoids many problems associated with do-it-yourself templates. I got my promotion and respect at work.
If you’re convinced that you need to code, the rest of this post contains tips on juggling coding and lawyering. They are based on my personal experiences, so I am also interested in how you’ve done it and any questions you might have.
Lawyering takes time and experience to master. Passing the bar is the first baby step to a lifetime of learning. PQE is the currency of a lawyer in the job market.
Well, guess what? Coding is very similar too!
There are many options and possibilities — programming languages, tools and methods. Unlike a law school degree, there are free options you can check out, which would give you a good foundation. (Learnpython for Python and W3Schools for the web come to mind.) I got my first break with Udemy, and if you are a Singaporean, you can make use of SkillsFuture Credits to make your online learning free.
Just as becoming a good lawyer is no mean feat, becoming a good coder needs a substantial investment of time and learning. When you are already a lawyer, you may not have enough time in your life to be as good a coder.
I believe the answer is a strong no. Lawyers need to know what is possible, not how to do it. Lawyers will never be as good as real, full-time coders. Why give them another thing to thing the are “special” at. Lawyers need to learn to collaborate with those do code. https://t.co/3EsPbnikzK
— Patrick Lamb (@ElevateLamb) September 9, 2022
So, this is my suggestion: don’t aim to conquer programming languages or produce full-blown applications to rival a LegalTech company you’ve always admired on your own. Focus instead on developing proof of concepts or pushing the tools you are already familiar with as far as you can go. In addition, look at no code or low code alternatives to get easy wins.
By limiting the scope of your ambitions, you’d be able to focus on learning the things you need to produce quick and impactful results. The reinforcement from such quick wins would improve your confidence in your coding skills and abilities.
There might be a day when your project has the makings of a killer app. When that time comes, I am sure that you will decide that going solo is not only impossible but also a bad idea as well. Apps are pretty complex today, so I honestly think it’s unrealistic to rely on yourself to make them.
It’s related to tip 1 — you’d probably be able to learn faster and more effectively if you are doing things related to what you are already doing. For lawyers, this means doing your job, but with code. A great example of this is docassemble, which is an open-source system for guided interviews and document assembly.
When you do docassemble, you would try to mimic what you do in practice. For example, crafting questions to get the information you need from a client to file a document or create a contract. However, instead of interviewing a person directly, you will be doing this code.
In the course of my travails looking for projects which interest me, I found the following interesting:
I wouldn’t suggest that law is the only subject that lawyers find interesting. I have also spent time trying to create an e-commerce website for my wife and getting a computer to play Monopoly Junior 5 million times a day.
Such “fun” projects might not have much relevance to your professional life, but I learned new things which could help me in the future. E-commerce websites are the life of the internet today, and I experiment with the latest cloud technologies. Running 5 million games in a day made me think harder about code performance and how to achieve more with a single computer.
Not many people think about this, so please hang around.
When I was a kid, I had already dreamed of playing around with code and computers. In secondary school, a bunch of guys would race to make the best apps in the class (for some strange reason, they tend to revolve around computer games). I learned a lot about coding then.
As I grew up and my focus changed towards learning and building a career in law, my coding skills deteriorated rapidly. One of the obvious reasons is that I was doing something else, and working late nights in a law firm or law school is not conducive to developing hobbies.
I also found community essential for maintaining your coding skills and interest. The most straightforward reason is that a community will help you when encountering difficulties in your nascent journey as a coder. On the other hand, listening and helping other people with their coding problems also improves your knowledge and skills.
The best thing about the internet is that you can find someone with similar interests as you — lawyers who code. On days when I feel exhausted with my day job, it’s good to know that someone out there is interested in the same things I am interested in, even if they live in a different world. So it would be best if you found your tribe; the only way to do that is to develop in the open.
I find that it’s vital to be open since lawyers who code are rare, and you have to make a special effort to find them. They are like unicorns🦄!
So, do lawyers need to code? To me, you need a lot of drive to learn to code and build a career in law in the meantime. For those set on setting themselves apart this way, I hope the tips above can point the way. What other projects or opportunities do you see that can help lawyers who would like to code?
Love.Law.Robots. – A blog by Ang Hou Fu
There’s a movement brewing between the lines of Twitter and within the deeper reaches of GitHub. Somebody is trying to “open source” contracts. You might have come across the term “open source” when downloading your favourite web browser. Open-source software is free, and it works. Is that what “open source” would mean for contracts?
I liked how Bonterms describes the motivation behind the endeavour:
Look inside the stack of nearly any major cloud application and you’ll find open source code, and lots of it. Developers leverage any existing package they can find before writing a line of code on their own. And they spend hours happily contributing back improvements to the projects they use. Open source has fundamentally transformed software development for the benefit of the entire ecosystem. But, could lawyers do the same? Could you possibly get law firm and in-house lawyers with the relevant domain experience to come together to articulate best practices, collaborate on drafting and then give their work product away for free? Yes, it turns out, you can. You just have to ask and provide a forum for working together and engaging in friendly, detailed debate.
Could time-starved lawyers used to charging by the hour be more like programmers and give what they do for free?
Previously I wrote about an “open source” contract — OneNDA. There’s been good news on that front. They transformed themselves into Claustack and came out with oneDPA, backed by PwC and ContractPodAI.
Will oneNDA rule them all?oneNDA, a crowdsourced NDA, says it has standardised the NDA. Cue the sceptic in 3... 2... 1...Love.Law.Robots.HoufuBack when OneNDA first came out, I hesitated to join the “hivemind”. My opinion has improved since.
It’s striking how similar these efforts are — all of them use some “cover page” mechanism to contract and are written by a “committee” of lawyers.
Here’s another similarity: all of them discourage modifying their templates.
You can see this from the particular license chosen by these projects. OneNDA chose CC-BY-ND 4.0 (the ND means no derivatives), and the others chose CC-BY (You might be able to make changes, even for commercial purposes, but you must credit the project when you make changes. How do you do that in a contract? 🤷🏻).
Even if you don’t know the difference between the various Creative Commons licenses, you’d be sufficiently discouraged by the documentation. One of the answers in the OneNDA FAQ is, “Yes, you can do whatever you like with it except actively allow or encourage people to change anything in oneNDA other than the variables.”
After I thought harder about the distinctions, I realised these projects aren’t so much about open source but standardisation. If everyone uses a particular contract, there will be massive benefits to all involved. However, you must agree to its restrictions — You can only modify the variables or the cover page. To use the contract, you must agree to all the choices and tradeoffs made by the project.
Philosophically, I disagree with this sort of standardisation. It’s apropos to introduce some XKCD:
Don’t get me wrong. I’m not going to sneer if I saw a OneNDA in the wild (I haven’t).
But I won’t overestimate the impact of these competing efforts at standardisation. On the one hand, nothing is stopping me from modifying any template. On the other, I don’t get any benefit from adhering to one too.
There is another aspect of “open source” that these projects might be alluding to. Open source development takes place in an open forum where anyone can contribute — on a mailing list, the GitHub issues page or some Discord server.
This idea that anyone can contribute appears to be anthemic to law. In the open source contracts I covered, all of them highlighted that they are supported or drafted by “experts” in their fields (I am a bit sceptical that someone would call themselves an NDA specialist). Both Common Paper and Bonterms have GitHub repositories for their contracts but don’t appear to accept contributions.
This brings me to Claustack. As mentioned above, it used to be OneNDA only, but now they have created a platform described as “GitHub meets StackOverflow – for lawyers”. The focus is not on the few documents that they are in charge of, but also on others including Bonterms and Common Paper. So, it is now a collection of resources, and a forum for people to provide feedback and suggestions, and at some level, be involved in its development. I liked this iteration better, so I joined up.
A contract standard might sound pointless because there are few, if any, restrictions to ensure you adhere to it. However, if there was a critical mass of users — a community — using, advocating and helping others on it, that is a recipe for conquering the world.
In “Forge your Future with Open Source”, a book about open source and how you can contribute to it, author VM Brassuer writes:
... the most important aspect of free and open source software isn’t the code; it’s the people. Contribution to [free and open source software] is about so much more than simply code, design, or documentation; it’s about participation and community. The licenses make the software available, but the people make the software, and the community supports the people. Remove one piece from this equation, and the entire system falls apart.
The quality of a contract might be important, and the licensing, the design and the cost of adoption are probably important too. But what would keep such a project going would be its people. At that point, more people have a stake in the success of the project, not just its founders or commercial backers.
Although I am cautiously optimistic about how Claustack is turning out, it’s still early days for these open source contracts. More has to be done in order to persuade other folks to contribute and advocate.
My lack of faith probably stems from my experience and observation that open source projects dealing directly with law and lawyers are very few and far in between.
Open Source Legal: The Open Legal DirectoryOpen Source Legal is a central repository and review database of open and open source legal standards, applications, platforms and software libraries. It’s meant to help the legal engineering community track and develop a set of community-driven tools and standards to improve legal service delivery…Open Source LegalYou can check out other open-source projects listed here.
One such project which actually has a community is docassemble. They even have a yearly “DocaCon”. I attended my first last year (when the event was in person it was impossible for me to travel to Boston to attend it), and found a pretty weird tribe. Most of the excitement involved access to justice (A2J) implementations of docassemble, not something you would find in law firms or legal departments. I was excited at an effort to bring testing to docassemble interviews, again, I would never discuss this anywhere else.
No, I really like to not make any money off of [docassemble]. It’s because I would really like being able to be honest to other people... I like being able to advise people not to use my code. It’s just so much easier if I could just concentrate on the technology and creating new features and not having to worry about making a living. It’s kind of nice to do something nice in the nights and weekends.
I can’t name another project like this.
Lack of opportunities is not the only problem. Culturally, lawyers seemed to be “trained” not to collaborate with each other.
Being #1 isn’t always a good thing—loneliness among lawyers (296) | Legal EvolutionSuccess as a lawyer can come at the expense of personal relationships. Is it worth the price? Few of my former partners in the global firm where I workedLegal EvolutionTom SharbaughIn this detailed narrative, associates, partners and law students confront loneliness.
Echoes of this also come from a recent interview with Mary O’Carroll on Artificial Lawyer.
If you have three lawyers in a room, and someone has information that can make someone else look good, will they help the other lawyers? Knowledge sharing between lawyers is not incentivised in training programmes. But, in a corporate setting you have to flex that muscle, i.e. collaboration and teamwork. The problem is that lawyers are trained to be the smartest person in the room. They don’t work cross-functionally in law firms. In a company however, every team has to work with every other team across the business.
Building a community for a normal open source project is really difficult. The question when it comes to open source contracts is: do lawyers even want a community?
An early draft of this post started by asking whether calling a contract “open source” is a PR stunt. It’s not fair to cast aspersions on an open source contract being given out for free when the usual course is not to share at all. Even so, one also has to be judicious about the way you spend your own time, something which lawyers are definitely (maybe overly) familiar with. Building an open source community is difficult, but that is what would make such a project sustainable. I’ll be keeping a lookout and hopefully there is a place for someone who wants to contribute.
Love.Law.Robots. – A blog by Ang Hou Fu
( TW: Child Abuse)
I don't need to indulge in any hedging for this — punishing children physically so that they will “learn” will never be a part of my parenting playbook. I have been on the receiving end of this myself. I didn't see a point in it as a child, and I tried to defeat it by testing its limits. Thankfully, my parents were reasonable people who (a) could recognise that it wasn't working and (b) loved me enough to see that it's not worth it. I believe many children and their parents go through various permutations of this path.
Still, family time is too precious to be spent experimenting on a well-known truth — physically disciplining a child is ineffective and harmful.
Not all children have reasonable parents — the newspaper recently reported a case where the courts issued personal protection orders against a child's adoptive mother. The mother had beaten the child with a cane several times in response to the child's potty problems, and the father applied for a personal protection order on behalf of the child. The article and the judgement contain fairly detailed audio transcripts of how the abuse happened.
The picture that emerges is rather harrowing. Furthermore, you can see glimpses of hurt among all those involved. There are no heroes in this story.
I always look out for bits like this:
It means that I'm a bad mummy […] I'm a lousy mummy. I'm not doing my job.
it never made sense when my parents hit me, until I realised that it wasn’t “them” that hit me, their own fears and anxieties, inherited from others
— visa is doing final edits ✍🏾📖 (@visakanv) November 29, 2021
I might be firm in my views, but this area enjoys a wide latitude of views here. Chan Wing Cheong's article “Corporal Punishment of Children by Parents: Is it Discipline or Violence and Abuse?” in 2018 referred to other arguments such as religious reasons, personal experience, and claims that failing to do such a “parental duty” will lead to social chaos.
Some readers may be surprised that the judgment implies that some forms of physical punishment are legal or reasonable. If the parent had caned the child only once instead of 54 times, should that be allowed? If the parent had caned the child “softly” as requested by the child, would that have improved the situation? In obvious circumstances, these questions are easy. In borderline cases, which more children are likely to experience, the answers are arbitrary and capricious.
With little irony, the judgement describes this wide latitude as a “thick grey line”. In truth, corporal punishments of children are used in several settings here. It's interesting to note that in an article “explaining” the policy of the Ministry of Education about caning in schools in 2018, readers will find misdirection to some pointed questions. Caning is clearly frowned upon here, but we have to have it in some situations. The thick grey line is wide as it is foggy.
Singapore has a long way to go, but we should go along with the rest of the world. On this note, it's interesting that Japan and South Korea have already prohibited child corporal punishment in all settings, including the home. Closer to home, Indonesia, the Philippines, Cambodia, Myanmar and China are committed to prohibiting it.
While the images of (unreasonable) corporeal punishment are disturbing, I found it very interesting that the case arose in the context of a personal protection order.
Like many things in life, there are several ways to respond to a situation. If your child is getting beaten up by your spouse, you could counsel them (assuming you find it wrong).
If the situation gets out of your control, filing a police report is another option. Calling child protection services too. The preceding options entail criminal liabilities. If proven, your spouse will be going to jail or fined. A breadwinner or a child might be removed from the family, or the family suffers financially.
The personal protection order is a different beast. It's a civil matter, so you have complete control of the proceedings. As mentioned in the judgment, the outcome of a personal protection order is an order not to commit family violence and may be an order to attend counselling. If you are deft enough to handle it yourself (and many personal protection order applicants certainly do so), the costs are not high.
The result (and this judgement is a good example) is a veritable goldmine for divorce proceedings. The mother doesn't look great for her parenting skills, and without any further information on the family dynamics, the father seems all right. A case for sole care and control of the child is now much stronger.
( NB : There isn't any information on whether there are any ongoing divorce proceedings in this case, and there may be other reasons to choose a personal protection order, including being able to prosecute this on your own.)
So if a spouse claims that there is family violence, it might be worth questioning whether there are any ulterior motives in the claim.
On the other hand, this might be another powerful reason why you shouldn't cane or physically punish your children.
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Love.Law.Robots. – A blog by Ang Hou Fu
I have been mulling over developing an extensive online database of free legal materials in the flavour of OpenLawNZ or an LII for the longest time. Free access to such materials is one problem to solve, but I'm also hoping to compile a dataset to develop AI solutions. I have tried and demonstrated this with PDPC's data previously, and I am itching to expand the project sustainably.
However, being a lawyer, I am concerned about the legal implications of scraping government websites. Would using these materials be a breach of copyright law? In other countries, people accept that the public should generally be allowed to use such public materials. However, I am not very sure of this here.
I was thus genuinely excited about the amendments to the Copyright Act in Singapore this year. According to the press release, they will be operational in November, so they will be here soon.
Copyright Bill – Singapore Statutes OnlineSingapore Statutes Online is provided by the Legislation Division of the Singapore Attorney-General’s ChambersSingapore Statutes OnlineThe Copyright Bill is expected to be operationalised in November 2021.
[ Update 21 November 2021: The bill has, for the most part, been operationalised.]
Two amendments are particularly relevant in my context:
In sections 280 to 282 of the Bill, it is now OK to copy or communicate public materials to facilitate more convenient viewing or hearing of the material. It should be noted that this is limited to copying and communicating it. Presumably, this means that I can share the materials I collected on my website as a collection.
The amendments expressly say that using a computer to extract data from a work is now permitted. This is great! At some level, the extraction of the material is to perform some analysis or computation on it — searching or summarising a decision etc. I think some limits are reasonable, such as not communicating the material itself or using it for any other purpose.
I was amazed to find an article in the SAL Journal titled “Copying Right in Copyright Law” by Prof David Tan and Mr Thomas Lee, which focused on the issue that was bothering me. The article focuses on data mining and predictive analytics, and it substantially concerns robots and scrapers.
Singapore Academy of Law Journale-First MenuLink to the journal article on E-First at SAL Journals Online.
On the new exception for computational data analysis, the article argues that the two illustrations I mentioned earlier were “inadequate and there is significant ambiguity of what lawful access means in many situations”. Furthermore, because the illustrations were not illuminating, it might create a situation where justified uses are prohibited. With much sadness, I agree.
More interestingly, based on some mathematics and a survey, the authors argue that an open-ended general fair use defence for data mining is the best way forward. As opposed to a rule-based exception, such a defence can adapt to changes better. Stakeholders (including owners) also prefer it because it appeals to their understanding of the economic basis of data mining.
You can quibble with the survey methodology and the mathematics (which I think is very brave for a law journal article). I guess it served its purpose in showing the opinion of stakeholders in the law and the cost analysis very well. I don’t suspect it will be cited in a court judgement soon, but hopefully, it sways someone influential.
There was a time when web scraping was dangerous for a website. In those times, websites can be inundated with requests by automated robots, leading them to crash. Since then, web infrastructure has improved, and techniques to defeat malicious actors have been developed. The great days of “slashdotting” a website has not been heard of for a while. We’ve mostly migrated to more resilient infrastructure, and any serious website on the internet understands the value of having such infrastructure.
In any case, it is possible to scrape responsibly. Scrapy, for example, allows you to queue requests regularly or identify yourself as a robot or scraper, respecting robots.txt. If I agreed not to degrade a website’s performance, which seems quite reasonable, shouldn’t I be allowed to use it?
Being more developer-friendly would also help government agencies find more uses for their works. For now, most legal resources appear to cater exclusively for lawyers. Lawyers will, of course, find them most valuable because it’s part of their job. However, others may also need such resources because they can’t afford lawyers or have a different perspective on how information can be helpful. It’s not easy catering to a broader or other audience. If a government agency doesn’t have the resources to make something more useful, shouldn’t someone else have a go? Everyone benefits.
In all, I identified three broad categories of terms.
Source: https://sso.agc.gov.sg/Help/FAQ#FAQ_8 (Accessed 20 October 2021)
Things I like:
Things I don’t like:
Source: https://www.pdpc.gov.sg/Terms-and-Conditions (Accessed 20 October 2021)
Things I like:
Things I don’t like:
Materials, including source code, pages, documents and online graphics, audio and video in The Website are protected by law. The intellectual property rights in the materials is owned by or licensed to us. All rights reserved. (Government of Singapore © 2006).
Apart from any fair dealings for the purposes of private study, research, criticism or review, as permitted in law, no part of The Website may be reproduced or reused for any commercial purposes whatsoever without our prior written permission.
Source: https://www.stratatb.gov.sg/terms-of-use.html# (Accessed 20 October 2021)
Things I like:
Things I don’t like:
One might be surprised to find that terms of using a website, even when supposedly managed by lawyers, feature unclear, problematic, misleading, and unreasonable terms. As I mentioned, very little thought goes into drafting such terms most of the time. However, they provide obstacles to others who may want to explore new uses of a website or resource. Hopefully, more owners will proactively clean up their sites once the new Copyright Act becomes effective. In the meantime, this area provides lots of risks for a developer.
Love.Law.Robots. – A blog by Ang Hou Fu
I spent several nights and trips on aeroplanes thinking about how to innovate the contracting process in my company. Though I did do a lot of reading online and offline, it was a lonely journey. I had to separate the puff from the substance and the wheat from the chuff from what I was reading and planning. When I got to action, I realised that having ideas was the easy part; making them work is really tough. Some of that work showed its fruits, but much of it was still unfinished.
Why I would use Excel for my Contract Management SystemHow do I get on this legal technology wave? Where do I even start? A “contract management system” or a “document management system” (“CMS”) is a good place. Business operations are not affected, but the legal department can get their hands dirty and show results for it. If you wouldLove.Law.Robots.HoufuAn early effort. I have mixed views about this post 2 years later.
At first, I was sceptical about reading another book on the process. ” Sign Here: The enterprise guide to closing contracts quickly “ by Alex Hamilton proved to be different. Alex Hamilton is a founder of Radiant Law, a law firm in the UK that focuses solely on the commercial contract process. They use technology and process improvement to deliver legal services differently. They've been doing it for ten years too, so they are here to stay. I was quite sure I would learn something different from this book.
Unfortunately, the book didn't teach me anything new. Instead, it validated many of my instincts and the conclusion I had reached after pondering the issue for years. That might sound like a nice ending, but I would rather read this from a book than cracking it from some stone and not being sure whether what I had was a real insight or baloney.
So, in short, I recommend the book. It put words to what my instinct and experience were telling me, and I am glad I read it. This is the real deal, in an accessible and practical format that anyone can read.
Sign Here: The enterprise guide to closing contracts quickly : Hamilton, Alex: Amazon.sg: BooksSign Here: The enterprise guide to closing contracts quickly : Hamilton, Alex: Amazon.sg: BooksAlex HamiltonI earn a commission from purchases made through this affiliate link.
If you are not convinced yet, here are five lessons from the book. I think they're wise and spoke to my practical experience.
The legal department is usually viewed as a roadblock. We stop others from making bad mistakes. We are the ones who are going to review the contract you just received from the counterparty. These points are valid, but there's a substantial cost in not acting fast. “Sign Here” raises lost revenue, postponed or even lost value and may even undermine relationships as the cost of delay in the contracting process. “Relationships are indeed being created and grown [as a result of the contract process], but successful relationships are often despite rather than because of the agreement.”
So speed really makes a difference. In my view, there's a customer relationship factor. Your internal customers like to hear a response from you. They can also tell our external customers that they care when they respond quickly.
“Sign Here” proclaims that despite vendors' claims, no single solution would solve all problems in the contracting process. I've always felt sceptical about silver bullet claims. I also felt unsure whether any completely new platform would succeed given its high costs.
There are two facets of real life that make any “silver bullet” difficult:
So no single solution works. You really have to go in there and figure out a good fit.
Related to the “silver bullet” fascination above is the belief that one solution solves all problems at once. It just doesn't work like that. Even if you had infinite resources and a highly motivated core of customers ready to do your bidding, the solution you have just implemented is not likely to be perfect now or in the future. The time horizon “Sign Here” suggests isn't months or years — it's weeks and then improved again later.
For myself, having users and putting solutions into production meant I had to fix bugs, answer questions and listen to suggestions. With some humility, I realised that these fixes and suggestions made the solution better. It also meant, sadly, that I had to get back to the drawing board.
Corollary to the fact that you will have to revisit your work repeatedly, it also means that you have to learn new things all the time continually. 😰😫
Consistent with the aim that contracts are relational rather than transactional, “Sign Here” recommends that terms aim first to be reasonable rather than extract maximum advantage, which is whittled down by mano-a-mano negotiations to something you can live with.
Related to the speed of contracting, clear and reasonable terms means that parties aren't sapped by the energy it takes to reach an agreement. I found internal customers are happy when they aren't fighting pointless battles, and when they don't have to explain to the counterparty or their legal department why our terms are so unfair. It also turns out that business folks aren't blind, and they like to discuss strategic matters that really matter to the deal. That starts with shunting out the stuff that doesn't matter.
I found the hardest issue with implementing change in contracting is what to prioritize. When you have limited time, resources and leadership capital, the changes you emphasize appears to be very significant. Document automation and AI contract review sound cool, while other less glorious things like storage systems and helpdesks also seem important.
One of the best parts about “Sign Here” is that it sets out a list of technologies you should focus on and why. Conversely, it also highlights technologies that you might hear about, but also their not-so-discussed limitations. It's one of the most fun parts of the book, so I won't spoil it for you.
Instead, I'd highlight the most important technologies that I thought were. It broadly matches the insights from the book.
docassemble – Love.Law.Robots.Love.Law.Robots.Some of my posts on this blog on docassemble.
Buy the book!
Love.Law.Robots. – A blog by Ang Hou Fu
I am not going to be shy about this. I really hate reading Non-Disclosure Agreements. Sometimes, they are known as NDAs, Confidentiality Agreements, and Mutual Confidentiality Agreements. Whatever guise they are in, they seem to say the same thing in many different ways. If there was a nuance, it's difficult to say what actual impact they have. Yet, we still have to figure it out and review them as necessary. Because somebody probably forgot to put in something that we need. Once they are signed, we move on. In short, a lot of time is spent on NDAs, but nobody cares. 🤢
That's what @thelawboutique_ execs Electra and Roisin found when they sat down to review the agreements they'd handled for their clients.
— oneNDA (@onendaclub) July 26, 2021
This kind of dysfunction is ripe for disruption. NDAs are probably one of the most straightforward problems in using AI for contract review. They have a certain structure and a limited set of clauses. You don't need to look far for an example — check NDAlynn. You can even enjoy NDALynn for free if you don't mind your document becoming part of the hivemind.
oneNDA is a different kind of disruptor. It suggests that life would be much easier for everyone if we sat together and agreed on one NDA. If you're curious what that crowdsourced NDA looks like, you can take a look at their website or download it here.
oneNDA Is Live! An M&A Module Is NextThe oneNDA project, which has sought to create a universal Non-Disclosure Agreement to cover confidential information, has gone live and is now available. However, the project will not stop th…Artificial Lawyerartificiallawyer
The creators of oneNDA have made a smart decision by aiming first for an NDA that is the simplest — having a commercial discussion. Logically speaking, it's like buttoning your shirt as you prepare for a business meeting. You shouldn't be spending much (if possible, any) lawyer or negotiation time on this sort of agreement. This NDA definitely helps you to reach that conclusion.
However, if you've reviewed enough NDAs, you would know that the arguments which prevent us from having a universal NDA aren't entirely rational. Somebody thinks their template is better, and we are going to have a debate over it. Sometimes it's easier to argue that we should stick to our template than selling a change which sounds like losing our freedoms. Maybe our language has been “tested”, and oneNDA hasn't. If I was conservative, having as many clauses in as possible is safer than leaving something out.
Reviewing NDAs is the express route to learning why contracts are dysfunctional.
Finally, there's a problem with NDAs. I first found out when I wrote my own NDA generator. Everyone sort of agrees that NDAs are low hanging fruit, but the reward of solving the problem isn't sweet or worth shouting to management. Nobody cares about NDAs, so nobody cares about the solution. Here lies an important lesson in innovation — some problems just aren't worth solving. The conclusion of my NDA generator was that people nodded at the “proof of concept”. Conversely, a letter generator that wasn't particularly complex or legal had a greater impact. They used it more often, and it saved them from learning how to choose a template.
On the other hand, like buttoning a business shirt, it wouldn't impress you if a button was in a different shape, or featured “magnets”.
oneNDA Is mediocreNDA: Thoughts on a Proposed Standard Nondisclosure Agreement – Adams on Contract DraftingoneNDA is a new initiative that “set out on a mission to standardise the NDA so that lawyers can spend less time on them and more time on more valuable work.” For more about oneNDA, go here. This week they released their “simple, plain English, open-source NDA,” also called, somewhat confusingly, on…Adams on Contract DraftingKen AdamsIt's great to know that I ain't alone in my conclusions.
So, while I am a firm supporter of standards, I am not excited about this one. oneNDA is great, but it is just another NDA.
Standards, the Importance of StandardsI explore the possibilities of using a taxonomy from the Legal Matter Standard Specification from SALI the Alliance.Love.Law.Robots.HoufuRead about a standard I am actually excited about.
I may not be excited about oneNDA in its current state, but I am more curious about how technically they would implement modules for M&A. I hope it will be a useful tool that provides convenience and simplicity for users, and not just a choose your own NDA. Anything that keeps NDAs away from lawyers will be a boon for the whole process.
For now, count this sceptic out of the hivemind.
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Love.Law.Robots. – A blog by Ang Hou Fu
A lot of people in Singapore know about the Personal Data Protection Act in Singapore (PDPA). A lot of people also know about the Personal Data Protection Commission (PDPC). The PDPC enforces the PDPA. The PDPC has a good reputation amongst most Singaporeans for its proactive approach to protecting the personal data of ordinary Singaporeans. To most people, this is the data protection regime in Singapore. Full stop.
Far fewer people (and I dare say professionals too) are aware that there is a “right to private action” hidden somewhere in the PDPA. Section 48O, to be exact.
Now who would want to experience the stresses of litigation , paying legal fees (most of which can't be recovered) and the prospect of losing?
Someone with an axe to grind, like the parties in Bellingham v. Reed. It's the first case to test the right to private action in the High Court of Singapore (and possibly the Court of Appeal as well). As a result of the parties' honourable public service, we now know the limitations of the right to private action.
This tortured litigation started when a fund manager moved to a competitor. To drum up the new business, the fund manager contacted a potential customer using information from his previous role. What started as a breach of confidence action suddenly morphs into a data protection action when the fund manager's ex-employers added the affected data subject to the litigation.
In the court below, the data subject obtained a court order for the fund manager to stop using his data. This was in spite of the fund manager already stating clearly that he would not be using the personal data of the data subject or contacting him.
The appeal turns on whether the data subject suffered “loss and damage” as a result of the breach of the PDPA. On the facts, a monetary loss seems far-fetched. The data subject argued instead that he suffered “distress and loss of control over personal data”. This wasn't a type of damage commonly recognised under the law, like personal injury or monetary loss. Did the PDPA create a new kind of damage to be found under a private action?
The High Court held that the answer is no. The PDPA “was not driven by the need to protect an absolute or fundamental right to privacy”. A “privacy right” was not part of Singapore's constitution or implied by Singapore's international obligations. The Court commented that:
The purpose of the PDPA was as much to enhance Singapore’s competitiveness and to strengthen Singapore’s position as a trusted business hub as it was to safeguard individuals’ personal data against misuse.
Since the data subject only suffered distress and loss of control over personal data, which were not recognised under the law, the appeal succeeded and the data subject's orders was set aside.
Oddly, the balance struck here could eviscerate the private action under the PDPA. What kind of damages can an affected individual claim for a breach of data protection obligations other than distress and loss of control over their own data?
On the key question of whether the PDPA's private action recognises new heads of damages such as emotional distress or loss of control over personal data, I don't expect the Court of Appeal to come up with a different answer. There might be alternative explanations, but the policy behind it is quite clear.
Firstly, a right of private action would probably end up with lots of litigation against companies, many of which can be for fairly minor breaches. We might be using too much judicial resources on many small matters. Companies might end up being stuck in a mire of lawsuits instead of innovating.
Secondly, many of the structures of the legal system in Singapore would not benefit such private actions. This includes the nearly complete absence of class action suits in Singapore. A private suit is likely to be an exhausting and expensive affair, which would leave many individuals out in the first place.
Thirdly, and this was recognised at the High Court at paragraph 94, there are better avenues for individuals to vindicate themselves. Most importantly, the PDPC has powers to enforce the PDPA, and many of these remedies mirror what an individual would most likely want from an action. This includes the dreaded financial penalty, the basis of which is on compliance with law rather than what loss or damage was suffered. It's notable that an affected individual can appeal the PDPC's decision.
Will Increased Penalties Lead to Greater Compliance With the PDPA?When the GDPR made its star turn in 2018, the jaw-dropping penalties drew a lot of attention. Up to €20 million, or up to 4% of the annual worldwide turnover of the preceding financial year, whichever is greater, was at stake. Several companies scrambled to get their houses in order.Love.Law.Robots.Houfu
Furthermore, the Protection of Harassment Act (which has received far more attention from the government) could provide a more effective route for any intrusion into privacy.
So even though it appears odd that the private action would be extremely limited under the PDPA, this “balance” might be palatable. The private action looks likely to remain as a relic for the most irrational parties. It speaks volumes that the only reported case of a private action in more than 5 years of the PDPA is going to the Court of Appeal.
While I agreed with the result, the reasoning left me unsatisfied. By adamantly insisting that the PDPA was different from other privacy and data protection regimes in western liberal democracies, the High Court appeared to suggest that we compromised something by striking a balance. Or worse, that we are involved in a switch and bait whereby we have meaningless rights in the PDPA.
Any talk about human rights should keep a close eye on its efficacy, in this case whether data subjects can enforce their rights effectively. It's quite clear that individuals can't realistically take companies to task on data protection on their own. The PDPC has had far more success using its enforcement powers.
So, maybe the Court of Appeal can come up with a better way to explain this. However, I wouldn't be holding my breath on this one. This case is a rare sighting, and cases like this will remain rare.
In the meantime, we should train our focus on the PDPC. Full stop.
Love.Law.Robots. – A blog by Ang Hou Fu
It must be hard to be an NUS student these days. One of the top universities in Singapore (and Asia) keeps appearing in the news for naughty transgressions, and getting allegedly easy treatment from the courts. Arguing whether NUS students get preferential treatment touches on the fairness of the courts as well as whether those in the higher echelon of society get to enjoy privilege. Can exhortations on how the Court works overcome people’s innate fears and prejudices of those in power? I doubt it. More data is needed.
An NUS student was initially sentenced to probation for molesting a woman in a train station. Probation is a process where once you complete its requirements without incident, ends in a clean record. Amidst a public outcry and the intervention of the law minister, the prosecution appealed. The High Court, presided by the Chief Justice, increased his sentence to two weeks of jail.
The judgements in this case are among the most fascinating.
The lower court (State Court) judgement is no longer available because LawNet only provides the latest three months for the public, so you would have to contend with my memory and a Mothership report.
The State Court judge wrote this during the public furore for the case. It contained a gem which rarely appears in judgements from the State Court: “ The order of probation should not be seen as a soft option. ” Sure, the State Court needs to justify its decision for scrutiny on appeal. However, claiming that probation is not a soft option appears to be a direct appeal to the public.
(By the way, when a State Court decision is appealed, the Court must write a judgement. Public attention and “pressure” as alleged by Mothership does not figure in this practice.)
The State Court’s reasoning appeared reasonable and in line with the sentencing practices of the Court. An appeal court can’t possibly substitute its decision for the State Court without explaining why the State Court is wrong. Will the appeal fail? Will the public see that justice is not “served”?
Key to justifying its decision to allow the appeal, the Chief Justice called for a psychiatric report of the accused. The report provided crucial pieces of information which the State Court did not have. The accused remained “in denial” of the offence. He was still doing pornography. He was able to “compartmentalise” his behaviour. As such, he failed to show an extremely strong propensity for reform. All this explained the State Court’s failure to reach the same decision as he did.
The Chief Justice’s conclusion: the system works.
The Chief Justice also remarked that he had on the same day, allowed another accused, who was “not a graduate”, to community-based sentencing. That case “did not attract any media or public interest”. The failure to report positive outcomes, the Chief Justice argued, creates the misconception that judges are not doing justice. These remarks were extraordinary because they usually do not appear in a court judgement.
Ironically, the media did not report the Chief Justice’s remarks. It is not surprising that the media does not report such positive outcomes and they do not figure prominently in the public’s mind. People react strongly to the oppression of the weak or when the powerful receive better treatment. That’s when they reach the conclusion that criminal justice is not working.
It has been only a few months since the Terence Siow case that another NUS student raised eyebrows again for getting probation. The new case shared many similar contours with Terence Siow’s case. They involved NUS students. The accused also perpetrated violence against females — Yin tried to strangle his girlfriend.
Would the criminal justice system now get an outcome which “aligns” with popular opinion again? If you were betting for such an outcome, the Terence Siow case actually shows that these things are by no means assured. For example, the Chief Justice can’t possibly know that Terence Siow was still watching porn when his case went up for appeal.
This may explain why, unlike Terence Siow, this case is not being appealed. The High Court recently dismissed an appeal from the prosecutor regarding an SMU student filming showers. The High Court in the latter case, stated that community-based sentencing is not a soft option.
Unable to satisfy the public through outcomes in the courts, the Ministry of Law announced a review of the penalty framework. It isn’t immediately clear (at least to me) what such a review would entail when the courts are adamant that the system is working. This is a developing issue, so more will come.
Figuring out what to fix will be very difficult. We are not sure what we are trying to fix in the first place. Fundamentally, we do not know in the first place if university students receive “lighter” sentences because they are university students. It would be ironic if such a review attempts to raise the bar for probation and community sentences so high that even non-graduates cannot reach it.
There is scant public information on what goes on in the criminal justice system. We don’t know how often a graduate or a non-graduate gets away with “lighter” sentences. This provides fertile ground for suspicions, reinforcing personal experiences and even conspiracy theories. Solving this would entail analysing closely the decisions judges make with respect to each accused and the crime.
Such information might be available from appeal decisions, but they only represent a small subset of cases. In fact, such cases will probably over-represent graduates because they are more likely to appeal.
Having a data-driven approach solves two problems. The court will not be required to convince the public of esoteric legal concepts. The media will never report such complexity anyway either. We also do not have to decide whether the Chief Justice’s personal experience or the layman’s experience of the justice system is more compelling. The data can serve as a source of truth for our arguments to improve the system.
Judges may not be comfortable having their decisions analysed in such detail. They may not like the data to show that someone is softer than the others on certain kinds of accused persons. However, if judges can remain steadfast in the face of public opinion, I am sure that a bunch of numbers are not going to overcome their desire to do right in the cases before them. Instead, such statistics may serve as another guardrail to remind judges when they are facing an outlier. This is nothing new — sentencing guidelines and appeals to higher courts already perform such checks.
I expect that the data is not going to be completely positive. The real fight in criminal matters, like most litigation, happens way before the Court hears the case. Getting referrals to a psychiatrist, writing contrite letters at the first opportunity, and testimonials from influential people can make the difference. It happens that graduates are more likely to get legal advice, know where to find a psychiatrist and have important people around them as well. It sounds unfair that well-resourced accused persons get lighter sentences, but to a judge, this is the evidence before him. If the Ministry’s review ends up increasing legal aid to many accused persons, that would be pretty great.
Of course, detailed data is not required to conclude that NUS students get off easier. However, if the ministry’s review ends up as a full-throated exhortation that the system works and it should work well for everyone, I am afraid we have learnt nothing much from this except whose opinion is stronger.
It’s great that young Singaporeans now care more about the criminal justice system and its outcomes. For many, this would be their first experience understanding the intricacies of this complex system. This is not the time to justify lofty concepts or point to personal experiences. It’s also great that the ability to analyse a judge’s decision-making in detail is largely available to us. Hopefully, this will spur better change to society’s benefit.
Love.Law.Robots. – A blog by Ang Hou Fu
Previously I wrote about how Singapore is strengthening its foreign bribery regime by providing a jurisprudential basis. Foreign bribery is a bit of a mystery. Unlike local bribery, there is no clear motivating factor how a country gets on the bandwagon. The damage to foreign countries may be a distant concern for national governments. Not every country wants to be a global policeman or punish its own nationals for damaging other countries. Certainly not Singapore.
I chanced upon an article on the FCPA Blog which provides an easy framework to understand why other countries are getting on the foreign bribery. The blog, which is a summary of an article written by the authors, says:
Once U.S. extraterritorial enforcement began in earnest, the incentives of foreign firms, at least those subject to material FCPA risk, came to mirror those of U.S. firms under the FCPA. They faced an uneven playing field vis-à-vis domestic competitors which, due to their domestic or regional reach, were subject to less risk of U.S. enforcement. Therefore, in order to level the playing field against such competitors, foreign multi-nationals came to favor the importation of a parallel regulatory regime into their own country. In this way, foreign anti-bribery laws spread around the world.
In Singapore, as mentioned, foreign bribery enforcement began to draw more attention after the FCPA case against Keppel Offshore and Marine. It was about this time that Singapore started the deferred prosecution agreement scheme for the first time. It did not apply to foreign bribery (Singapore’s Prevention of Corruption Act is pretty vintage compared to other OECD countries), but I thought DPA would definitely aim to apply in foreign bribery in due course.
So did our local MNCs want to level the playing field against other competitors? Maybe, but our local MNCs (which are often government linked) are in a world of their own in Singapore. They could bury this, move on and conduct business as usual.
Here’s my alternative argument.
When the US exercises its extraterritorial jurisdiction, it takes the initiative in determining how such violations are treated.
However, if national governments take action, it would be more difficult for the US to determine the course by itself. If the national government is competent enough, the US and other countries wouldn’t even need to act.
Locals MNCs would prefer the national government to take action since they would have greater access and influence over the course of a local investigation and prosecution. However, in order for local MNCs to benefit, national laws must already have a similar framework, such as foreign bribery laws and deferred prosecution agreements.
This is intuitive to me. I was actually influenced when I read the parliamentary debates on the news breaking of Keppel Offshore and Marine (KOM) being subjected to such heavy fines. The key answers are buried in the middle of the text.
I do agree with the authors that the enactment of foreign bribery laws depend greatly on the actions of the US. If there is no enforcement of the FCPA overseas, there is no impetus anywhere else. I also agree that local business lobbies are probably more influential in pushing national governments to action. However pure market forces are not so influential in this side of the world, and I believe that national protection may be at work here.
Do you agree that market forces influence local MNCs to push for foreign bribery laws, or that national governments trying to protect their own businesses account for a push for foreign bribery laws? I would love to hear your comments!
Love.Law.Robots. – A blog by Ang Hou Fu