Abstract
This book chapter contextualizes the origins of the proactive law movement to explain its current developments and advance its conceptual underpinnings towards applications of the perspective closest to the digital economy and electronic trade with regard to transactions and contracts. It aims at proposing transactional design as an expression of smart contracting practices, explaining its scope within the principled conflict management and dispute resolution collaborative culture. Additionally, standards of efficiency, effectiveness, and satisfaction are taken from within the computer sciences and the law to present an integrated taxonomy of usability parameters for the planning and assessment of sustainable business and other human transactions consigned in electronic texts mediated by technology. It is argued that the applicability of such integrated cross-disciplinary models is ensured given the growing reach and range of digital services and also because their formulation reflects the interconnected society principles, needs, and capacities. While featuring innovative aspects in alternative contracting practices, it refrains from addressing visualization in depth. However, the complexity of engaging with semiotic analysis of visualization techniques in legal interface design is signalled as an especially worthy field for further research.
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Notes
- 1.
Mediated and mediatized are terms referring to the use of devices as intermediaries between agents/users, and in electronic exchange that fills content online (public or accessible), respectively. Digital, self-enforcing “smart contracts” were proposed by Nick Szabo in 1993, when the economic and communications infrastructure were unfit to support them (Szabo 1997). Technical and economic conditions are now available, but the issue of trust in fully automated services and artificial intelligence is not well resolved yet. Trust is of fundamental importance for the accomplishment of any e-strategy such as e-health, e-finances, e-government, and the expansion of the Internet of Things. Legal systems can easily adapt to smart contracting practices, whereas as for now, smart contracts could impose insurmountable ethical, legal, and safety constraints as they demand a very significant allegiance from the human to automated agents.
- 2.
One could interpret the regulatory or social evolution lag as an opportunity for iteration, revision, and adaptation. If the digital market was to deliver too fast the economic growth it is expected to produce, exhaustion would follow, together with the depletion of all of resources available to maintain social and economic organizations afloat. Mismatch between formal regulations and the so-called slow-moving institutions embedded in social practices and cultures is common.
- 3.
See the study report on Cross-Border Alternative Dispute Resolution in the European Union online at: http://www.europarl.europa.eu/meetdocs/2009_2014/documents/imco/dv/adr_study_/adr_study_en.pdf.
- 4.
Solarte-Vasquez (2014).
- 5.
Norta et al. (2015).
- 6.
Collaboration is a human competence, an asset that amounts to social capital; it is necessary to achieve corporate and social missions and determine the sustainability of the organization in itself (long-term operations) and its activities (impact). Social capital is generally understood as the economic value of networks and social cohesion. The concept is much better explained by Portes (2000, p. 45).
- 7.
- 8.
The rules of the analogous world, specially procedural ones, are limited to some extent because they predicate on physicality and jurisdictional borders. The substantial laws on the links between persons and between goods and persons (natural or legal entities but not artificial intelligence agents) are well developed and refined but revolve around one chief goal: the creation of enforceable catalogues of rights and obligations.
- 9.
Conte et al. (2012).
- 10.
Political economy considerations are not legal enunciates or necessarily have to conform with the pure theory of law. Policy makers create exceptions and use other governance strategies but cannot act upon ideological and other priorities by affecting core propositions deriving from the rule of law.
- 11.
-Indigenous- Conflict prevention and resolution mechanisms have been historically in use by every society long before the contemporary methods where introduced. Even more broadly exercised, freedom of contracting has been a practical (rather than moral) principle inspiring constructive action for centuries, as it is intrinsically related to free will that can be put to the service of any purpose.
- 12.
The ombudsman’s role is that of a dispute manager/administrator. Depending on the context and the level of institutionalization of the figure, it can intervene to a different degree. Mediation in criminal matters intends to implement restitution and reconciliation processes from the conflict and peace studies in the criminal system. See Lahti (2000).
- 13.
Consult, for instance, the latest EU Initiatives on ADR and online dispute resolution (ODR) and related documents regarding consumer disputes at: http://ec.europa.eu/consumers/solving_consumer_disputes/non-judicial_redress/adr-odr/index_en.htm#related_documents, and the Opinion of the European Economic and Social Committee on The proactive law approach from 2009 available online at: http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52008IE1905&from=EN.
- 14.
Groton and Haapio (2007). Proactive law has grown from its therapeutic beginnings into a philosophy for better private and public regulations and still can be placed into a conflict management and dispute prevention continuum.
- 15.
The proactive proposal spoke of legal knowledge as a competitive advantage although the result of an associative work during the planning stages of commercial contractual relationships. See infra, notes 22 and 46 and Rekola and Haapio (2011).
- 16.
Pohjonen (2010), among other publications of the same author, provides an excellent explanation on the origins and fundamentals of the proactive law movement with implications on her research in the field of collaborative contracts.
- 17.
The humanist life stance trusts the cognitive and emotional capacities of the human being to preserve views in which the human dignity, interests, and values predominate and to solve their problems with epistemological (rational in the sense of systematic) proficiency. It is liberal in that it endorses autonomy and promotes self-determination.
- 18.
On the original proposal on the preventive law practice, read Brown (1951); on proactive law as first conceived, read Siedel and Haapio (2010); on ADR, find distinguishable stands in Barrett and Barrett (2004), Schneider (1999), Henry (2000), and Lieberman and Henry (1986) and an overview in Sander (1985). Daicoff (2005) speaks of a comprehensive law practice. An interest study by Jasperson et al. (2002) reviews power, one of the main elements in conflict studies and its relationship with technology, and on general conflict and peace studies read “The Handbook of Peace and Conflict Studies,” edited by Webel and Galtung (2007).
- 19.
Menkel-Meadow (1985).
- 20.
Stolle and Wexler (1997).
- 21.
- 22.
- 23.
On the past and future of proactive law, read, for instance, Berger-Walliser (2012).
- 24.
The literature on conflict management and resolution is vast, discussing expressions that were commonplace already in the 1970s, each referring to different frameworks, skills, and interests on the administration of disputes and heuristics to lessen the damaging impact of crisis. Any expression could be said to fall short of the possible applications of the understanding of conflict as a phenomenon, inherent to human association and a recognized catalyst of change as Galtung (1996) has explained. Most descriptions fail to explicitly include a preventive dimension. However, any functional approach can become useful to designate the many possible interventions that in different moments could be aiming at various effects as conflicts may long remain latent or extend over long periods of time.
- 25.
Rekola and Haapio (2011).
- 26.
On articulation of new languages, see Ramadier (2004). The proactive movement has opened the space for interdisciplinary research and intellectual engagement by working very hard on terminological choices, resorting to metaphoric arguments and the careful articulation of shared renewed meanings.
- 27.
Domestic legal systems, statutes, codes, or legal acts define terms such as transactions, obligations, and contracts.
- 28.
In communication theory, text can be content or outcome of an interaction, no matter what format. Consult the Encyclopaedia of communication theory (Vol. 1), p. 148.
- 29.
In texts with augmented reality (the indirect view of a real world environment, like a sound and a shape, superposed on images for a composited view of displays), textured contracts (in layers), and so on.
- 30.
Verganti (2011). On ethics and sustainability of design see: Felton, Zelenko, Vaughan (Eds.) (2013).
- 31.
Macneil and Gudel (2001).
- 32.
Haapio presents the principled negotiation essentials in her publication with Groton, ibid. 30. Further references are available at the source of the Harvard Negotiation Project at: http://www.pon.harvard.edu/category/research_projects/harvard-negotiation-project/.
- 33.
Valid contracts submit to the requirements of the law as the civil theory of contracts summarizes at least the existence of elements of a contract, namely licit object and cause, capacity, formalities, and the meeting of the minds. These elements coincide in all civil codes of the civil law tradition. More on the Roman Tradition of contract formation in Cohen (1933) and Ghirardi and Crespo (1996).
- 34.
On the role of formal and informal, legislative and nonlegislative measures to strengthen the culture of ADR within the EU and a discussion on ADR as an empowering self-regulatory solutions contributing to the success of cross-border and electronic trade, read further in Solarte-Vasquez (2014).
- 35.
See Teubner (1983) on reflexive law.
- 36.
“Better Regulation” means, within the EU, good design of measures, formal and informal, that can be effective. More rules do not mean better regulatory environment but might mean the opposite. Consult more at: http://ec.europa.eu/smart-regulation/better_regulation/key_docs_en.htm REFIT (the European Commission’s Regulatory Fitness and Performance programme) takes action to simplify the laws and reduce regulatory costs and is part of the EU governance innovation actions.
- 37.
Consult the EU directory/database on consumer legislation at: http://eur-lex.europa.eu/summary/chapter/consumers.html?root_default=SUM_1_CODED%3D09.
- 38.
The report and data source can be read in the European Commission ICT survey of Households and Individuals report of 2014. At http://ec.europa.eu/eurostat/statistics-explained/index.php/Information_society_statistics_-_households_and_individuals.
- 39.
The importance of this proposal on smart contracting and better transactions transcends economic considerations. Transactional design that could result in an improved contractual experience prevents disputes and reduces social and institutional tensions. For an introduction on the different costs of conflicts, disputes, and litigation in general, find: “Economic analysis of legal disputes and their resolution” by Cooter and Rubinfeld (1989), and “The intersection of therapeutic jurisprudence, preventive law, and alternative dispute resolution” by Schneider (1999).
- 40.
Principled negotiation is the name assigned to the method developed by Fisher, Ury, and Patton and popularized in their book of tactics Getting to Yes and developed under the auspices of the Harvard Law School. See a recent application of the perspective in Lens (2004). A complete explanation on human-centered design principles is available by Norman (1883) and discussed in Norman (2005).
- 41.
Clarity and consistency of regulatory frameworks are requirements of predictable legal systems, owing to the observations of the rule of law principles (strongly committed to rule out arbitrary decision making and interpretation). Graphics and visual elements that are not conventions cannot be interpreted with certainty.
- 42.
- 43.
- 44.
- 45.
- 46.
- 47.
For instance, in the ongoing Fimecc UXUS and completed PRO2ACT – projects. More information on these is available in their webpages: http://www.mindspace.fi/en/uxus/ and http://tuta.aalto.fi/en/research/operations_and_service_management/simlab/projects/pro2act/in_finnish/, respectively.
- 48.
Text in here is any message on any medium which includes imagery, film, pictures, words, and sound. Various interfaces can be designed to increment choices, for instance creating different layers and textures, as well as modules for selecting and mixing. On modularity, find: Smith (2006).
- 49.
Persuasive technologies are designed to modify human attitudes and conducts. Read more in Fogg (2002).
- 50.
That contracts are created for information and persuasion is assumed in this section, but only the cognitive enhancement is being discussed. Another important assumption is that in simplifying a legal text, adding more than what seeks to inform and persuade would be superfluous and add noise to the text.
- 51.
Nielsen (1994).
- 52.
About the Harvard negotiation project find more at: http://www.pon.harvard.edu/category/research_projects/harvard-negotiation-project/.
- 53.
The International Organisation for Standardisation (ISO) and the International Electrotechnical Commission (IEC) have issued numerous materials that can be the reference for the development of usable products. Search on the database: http://www.iso.org/iso/catalogue_ics and refer in particular to ISO 9241. On a categorization of usability standards and a brief discussion on their applicability problems, consult Bevan (2006).
- 54.
- 55.
Language is believed to be the main cause of contractual inefficiencies, particularly in consumer protection advocacy circles where the plain language movement is rooted. “Plain” when applied to a written document could be understood in three ways: the text is legible, meaning that it can be perceived and then read; it has unity, that is coherency and consistency in all language arrangements; and it is clear, meaning intelligible and with semantic precision. These three main characteristics determine the degree to which readers can comprehend text. On lean contracting, read Siedel and Haapio (2010), p. 26.
- 56.
Looking at the whole relational context (Braucher 1990), contracts acquire a new meaning. Braucher speaks of the dangers of contractarianism and recommends more sustainable and productive contractual relations not to sacrifice factors such as fairness and sense of community.
- 57.
Criteria for effective contract drafting combine linguistic technical skills with being able to identify the building blocks of a relationship and producing a strategic document for compliance, as well as a positive transactional experience. The same, one could argue, applies to other types of text consigning the creations of rights and duties. Criteria for good regulation have always been discussed in the literature; see, for instance, on boiler plate and standardized formats Stark (2003); Hillman and Rachlinski (2002) about standard-form electronic contracting; Tan and Thoen (2003) on a risk/trust model for preparing the contract; and the concept on contract as a technology explained by Davis (2013), among the many authors with similar concerns. Some initiatives of a much wider range have derived from the plain language movement that in the 1970s is consumer protection activism inspired; find, for example, in www.plainlanguagenetwork.org and in www.clarity-international.net for more resources. Some of the traditional principles combined with the selection of usability parameters in this chapter compose a practical checklist to be used in transactional design.
- 58.
As if coinciding with Susskind on his assessments about today’s legal landscape and his predictions about the future of legal services (Susskind 2008), the proposals by Passera and Haapio (2011a, b) unpack the possibilities of at least three of the categories that Susskind describes: the legal “knowledge engineer,” the legal “risk manager,” and the legal “hybrid.” (Susskind 2008, pp. 272–273).
- 59.
This argument becomes especially relevant in the case of Passera’s work, which uses boundary object theory in her contracting enhancement proposal (2012). An “easy” way to skip the complex conceptual articulation phase when attempting these classifications could be to leave conflict theory and proactive and collaborative principles aside and concentrate on the fact that the illustration of transactions is preventive and promotive enough, requiring no evaluation on their own.
- 60.
The field of usability is replete with advice on characteristics that can be categorized (read, for example, in Lidwell et al. (2010)), but few are the principles that sufficiently guide a proper research design to improve the interaction experience such as the focus on user needs, choosing an experimental approach, and design thinking engineering tools. In this section, the usability factors included in the taxonomy can be said to be the basic and most widely applicable in the practice of usability testing as for now.
- 61.
Traffic signs and logos of the creative commons are some of the very few (search them on http://creativecommons.org/).
- 62.
Look at an experimental evaluation report in Passera (2012).
- 63.
Precision and recall are characteristics that are commonplace in information visualization and data representation in regard to information retrieval to indicate correctness and completeness. They could also apply to semantics, but the tensions between the degree of exactitude needed and the benefits of clarity in HCI and plain language in transactional design could detriment communication and raise more questions about the visualization of concepts. Whether the need for metrics in visual information analysis would be applicable to the visualization of the law cannot be ascertained in these few pages.
- 64.
For a review of this feature in context, read Ziefle (2002).
- 65.
Data-ink is the nonerasable ink. If removed from the image, the graphic would lose the content. Non-Data-Ink is, accordingly, the ink that does not transport necessary information but creates noise Tufte and Graves-Morris (1983).
- 66.
- 67.
Read further in Hillman and Rachlinski (2002).
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Solarte-Vasquez, M.C., Järv, N., Nyman-Metcalf, K. (2016). Usability Factors in Transactional Design and Smart Contracting. In: Kerikmäe, T., Rull, A. (eds) The Future of Law and eTechnologies. Springer, Cham. https://doi.org/10.1007/978-3-319-26896-5_8
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