Contracts pervade our everyday life, whether we are aware of them or not. They not only pervade it, but they also can have huge impacts on our private and / or professional lives.
Written contracts are often long and complex. As such, they are oftentimes difficult to read and hard to understand, even for lawyers. In emotional terms, they are quite boring to absorb. These legal documents can be so dull that their readers may have difficulties in remaining mindful of their contents. Possibly, the reading process tires them, too. Written contracts require readers to use various further cognitive abilities, such as perception, thinking, memory, and so forth. These abilities are difficult to perform in the case of user-unfriendly documents. Even if contracts are not user-friendly, they can still have rigorous legal, economic, social, and psychological effects, which I find rather alarming. Perhaps this explains why TIM CUMMINS, the CEO of the International Association for Contract and Commercial Management (see http://www.iaccm.com/) asks whether contracts are just a bad joke (see http://commitmentmatters.com/). The following picture might remind us how long this problem has probably already existed.
Fig. 1 Land sales contract. Sumerian clay tablet, ca. 2600 BC, Source: http://commons.wikipedia.org/wiki/File:Sales_contract_Louvre_AO2753.jpg
Given the precarious communicative situation regarding written contracts, the question needs to be raised how contract communication and thus its effect might be enhanced for the benefit of the parties involved and for other stakeholders. Visualizing the otherwise barely intelligible elements of these contracts (see, for instance, http://community.beck.de/gruppen/forum/visual-law/visualization-of-contracts) is one important approach to making such documents communicate more effectively.
This explains why I am thrilled to announce that the Hasso Plattner Institute of Design at Stanford (see http://dschool.stanford.edu/) will host a workshop on visual contract design entitled Legal Design Jam. This workshop will be held on Friday, October 11, 2013.
- STEFANIA PASSERA (see http://stefaniapassera.com/)
- MARGARET HAGAN (see http://cyberlaw.stanford.edu/about/people/margaret-hagan)
- HELENA HAAPIO (see http://www.lexpert.com/en/who_profile.htm)
- YANA WELINDER (see http://cyberlaw.stanford.edu/about/people/yana-welinder)
As the Wikimedia Foundation (http://wikimediafoundation.org/wiki/Home) has drafted a new trademark policy (see http://wikimediafoundation.org/wiki/Trademark_policy), the Legal Design Jam will focus on visualizing the "trickiest parts" of this contractual document.
The purpose of the Legal Design Jam is to clarify the intricacies of the trademark policy through designing legal visualizations. Thus, not easily understandable elements of this legal text will be rendered more readily accessible to future addressees and other stakeholders. As we know, both groups constitute a large audience. The workshop facilitators hope that the legal visualizations created at the Stanford workshop will become integral components of the final version of this trademark policy.
I was told that the registration process is closed. The facilitators have had to set up a waiting list. Apparently, they have room for only 35 participants, but have already more than 40 interested scholars, practitioners, and students.
For further information, please visit: http://www.mindspace.fi/wp-content/uploads/2013/09/Stanford-Legal-Design-Jam_invitation.pdf.
Various legal and non-legal disciplines (would) provide answers to how legal communication, particularly with respect to contracts, might be enhanced. I am convinced that PASSERA, HAGAN, HAAPIO, and WELINDER will find pertinent visual-legal design solutions, drawing on insights from some of these disciplines, particularly visual law. I would encourage the workshop facilitators to post these solutions online for critical scrutiny.
I am confident that the Stanford workshop on visual legal design will be followed by others. Law schools, not "only" design schools or institutions should host such or similar events. Why not US-American, South-American, Australian, Asian Law Schools? Why not law departments in Europe, or elsewhere? Why not? The forthcoming International Conference on Multisensory Law will be such an event (on multisensory law, see Colette R. Brunschwig, "Law Is Not or Must Not Be Just Verbal and Visual in the 21st Century: Toward Multisensory Law," Internationalisation of Law in the Digital Information Society: Nordic Yearbook of Law and Informatics 2010-2012, eds. Dan Jerker B. Svantesson & Stanley Greenstein (Copenhagen: Ex Tuto Publishing, 2013), 231–283, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2323281). The conference will be held at the University of Zurich, Switzerland, on January 27 & 28, 2014 (see http://www.rwi.uzh.ch/oe/zrf/abtrv/brunschwig/konferenzen/2014/Zuerich_en.html).
In my view, scholars and practitioners should broaden the "mere" focus on visual legal design. Why? As far as I can see, there are four main reasons for broadening the sensory attention of visual legal designers:
- First, already today certain legal or legally relevant contents are audio-visualized, for instance, legal education films for law students (see http://community.beck.de/gruppen/forum/audio-visual-law/legal-education-films-for-law-students). Why not audio-visualize "tricky" passages of legal contracts? Why not adapt game-design elements, methods, and tools to the non-game context of audio-visual contract design? HELENA HAAPIO recently told me that she is planning to give a presentation and / or to write a paper along these lines. I look forward to listening and / or to reading her paper.
- Second, given the "multisensory potential of digital technology" (http://www.designinginteractions.com/interviews/HiroshiIshii), it seems perfectly obvious to multi-sensorize the design of legal documents.
- Third, legal designers might easily learn from practicing multisensory designers how to multi-sensorize legal and legally relevant contents. On a related note, let me mention various multisensory designers, such as CEARBHALL O'MEADHRA (see http://www.multisensorydesign.ie/files/open%20SMS0111.html, http://www.eca.lu/index.php/members/22-ireland/10-ireland, and http://www.fightingblindness.ie/multisensory-design/), MICHAEL HAVERKAMP (see http://www.michaelhaverkamp.de/synaesthesie%20engl.htm), the author of Synthetisches Design – Kreative Produktentwicklung für alle Sinne [Synthetic Design – Developing Products Creatively for All the Senses] (see http://files.hanser.de/hanser/docs/20081111_20120531113917603_978-3-446-41888-2_Vorwort.pdf), and CHARLES SPENCE & ALBERTO GALLACE, the authors of "Multisensory Design: Reaching Out to Touch the Consumer" (see http://onlinelibrary.wiley.com/doi/10.1002/mar.20392/pdf). How about writing a paper on "Multisensory Contract Design: Reaching Out to Touch Contractual Parties"?
- Fourth, high-level meetings at the 68th Session of the General Assembly of the United Nations took place recently. Entitled "The way forward: a disability inclusive development agenda towards 2015 and beyond," the session focused on disability and development (see http://www.un.org/en/ga/68/meetings/disability/). This session prompts me to point out that the parties to a contract or at least one of them might be visually impaired. For this reason, such (impaired) parties might not benefit from legal visualizations, which are solely designed for the eye. By contrast, a multisensory design of "tricky" contractual elements would better meet the needs of such parties than a "merely" visual design. Visual law practitioners need to bear in mind that we are not all "eye people." KENNETH S. POPE has designed a website with links to software and hardware resources for people with disabilities (see http://kpope.com/assistech/index.php, and George H. Williams, "Disability, Universal Design, and the Digital Humanities," Debates in the Digital Humanities, ed. Matthew K. Gold (Minneapolis, MN, London: University of Minnesota Press, 2012, 202–212). These resources might support multisensory legal designers in their endeavor to expand the reach of the law.
The following memories might seem too personal. I would like to share them anyway. In many cases, scholarship proves to have a subjective dimension. Occasionally, this dimension needs to be disclosed, at least partially, especially for academic reasons. Being among those pioneering modern visual law, and I am offering these remarks with due modesty, these memories reflect important elements of the history of this branch of multisensory law. To gain a grounded identity, visual law and its application in the form of visual legal design need to be historicized.
Reading about the Legal Design Jam, I was reminded of the time when I had finished my PhD thesis. That was in 2001, and I was looking for a suitable title. My monograph (see http://opac.nebis.ch/F/4VA47J93I14X238XYIM63RCTXDBI6AV3SNSCK7JKFGL9SX77CQ-09061?func=full-set-set&set_number=041750&set_entry=000023&format=999) discusses whether and, if so, how modern legal norms might be visualized. And so I suggested the following title to my supervisor: Legal Design: Visualization of Legal Norms. He declared that he would not accept "Legal Design" as a main title. If I really wanted to stick to this "Anglicism," I should use it as a subtitle. I had no choice but to comply—albeit reluctantly because I knew at the time this would be neither an adequate nor a right step into the sensory future of the law. From the perspective of the history of science, my supervisor's objection was and remains quite understandable. Titles have much to do with the power (and courage) of conviction and with anticipating (or even foreshadowing) future developments. Choosing a "visionary" title was off-limits at the time. Now it is tempting to ask whether legal scholars are "allowed" to be visionary within the "prisonhouse" (readers will forgive me this metaphor) of their own established legal disciplines.
On February 27, 2006, MOHAMMED A. DORGHAM from Inderscience Publishers (see http://www.inderscience.com/) was so kind and generous to make it possible to start the International Journal of Legal Information Design (see http://www.inderscience.com/jhome.php?jcode=ijlid#edboard). As the then appointed Editor-in-Chief, I managed to assemble an illustrious Editorial Board (see http://www.inderscience.com/jhome.php?jcode=ijlid#edboard). It amounted to a miracle. They all said, "yes, this is a good thing to begin with." Regardless of this outstanding Board, regardless of my initially relentless endeavor, practically no one submitted papers exploring the visual, audio-visual, and eventually multisensory design of legal information. In the meantime, I have not given up. Realizing that I had been absolutely naïve with respect to scholarly reality, I have adopted a wait-and-see mode. Probably, for that reason, DOURGHAM has finally assumed my role. Even so, nothing has changed—yet. There are still no papers. I wonder why. This journal seems doomed to not take off. Really? I don’t think so. Considering the current developments of legal design, there is hope for this English-speaking journal or for another scholarly journal with such a focus.
Fig. 2 Cover of the International Journal of Legal Information Design, available at: http://www.inderscience.com/jhome.php?jcode=ijlid
Let me turn to the digital humanities (DH). I shall do so for three reasons: First, some digital humanists consider the law to be part of the DH (see, for instance Willard McCarty & Harold Short, Mapping the field, available at: http://www.allc.org/node/188, and Willard McCarty, "Humanities Computing," in Encyclopedia of Library and Information Science, eds. John Feather & Paul Sturges, 2nd ed. (London: Routledge, 2003), 1224, 1225, fig. 1, available at: http://www.mccarty.org.uk/essays/McCarty,%20Humanities%20computing.pdf). Second, some legal scholars associate the law with the humanities (see, for instance, Mireille Hildebrandt, "The Meaning and Mining of Legal Texts," in Understanding Digital Humanities, ed. David M. Berry (Basingstoke: Palgrave Macmillan 2012), 146). Third, I would argue that digital multisensory law should be associated with the DH. To affiliate the law with the humanities constitutes nothing new. From the 14th to the 16th centuries, a juridical humanism prevailed (see, for instance, Ph. J. Thomas, "A Theoretical Foundation for Juridical Humanism" Fundamina: A Journal of Legal History 53, no. 2 (1996): 53–64, and Stephan Meder, Rechtsgeschichte [Legal History], 4th rev. and suppl. ed., Cologne, Weimar, Vienna: Böhlau, 2011, 209 sq.). Also, some philologists at the same time were jurists. As such, they shaped juridical humanism (see, for instance, Meder, loc.cit., 216 sqq.).
New media have changed the humanities. In recent years, they have been transformed into DH. DH involves "the application of the computer to the disciplines of the humanities" (David M. Berry, "Introduction: Understanding the Digital Humanities," in Understanding Digital Humanities, ed. David M. Berry (Basingstoke: Palgrave Macmillan, 2012), 3). Among other topics, the DH explore and practice design. In other words, they are concerned with creating visual, audio-visual, and multimodal, that is, multisensory products, such as virtual worlds (see, for instance, Wolfgang Schmale, Digitale Geschichtswissenschaft [Digital History] (Vienna, Cologne, Weimar: Boehlau, 2010), 38, 59, and 117–124; Peter Haber, Digital Past: Geschichtswissenschaft im digitalen Zeitalter [Digital Past: History in the Digital Age] (Munique: Oldenburg Verlag, 2011), 152; N. Katherine Hayles, How we Think: Digital Media and the Contemporary Technogenesis (Chicago, IL, London: The University of Chicago Press, 2012), 40 sq., and Jana Klawitter, Henning Lobin, & Torben Schmidt, "Kulturwissenschaftliche Forschung: Einflüsse von Digitalisierung und Internet [Scholarship in Cultural Sciences: Impacts of Digitalization and Internet]," in Kulturwissenschaften digital: Neue Forschungsfragen und Methoden [Digital Cultural Sciences: New Research Questions and Methods], eds. Jana Klawitter, Henning Lobin, & Torben Schmidt (Frankfurt am Main, New York, NY: Campus, 2012), 9, 10, 11, 13, 24).
I would like to illustrate this point with a few examples: "The Stanford Literary Lab discusses, designs [my emphasis], and pursues literary research of a digital and quantitative nature" (see http://humanexperience.stanford.edu/digital_humanities). This Lab applies "advanced visualization techniques [my emphasis]," in order to map "the Republic of Letters, by plotting the geographic data for the senders and receivers of correspondences" (ibid.). "These maps will allow researchers to perceive the larger patterns of intellectual exchange in the early-modern world and raise new questions about the importance of places, nations, and cities, in the circulation of knowledge" (ibid.). The Lab also fosters "The Spatial History Project." This project engages "in creative spatial, textual and visual analysis to further research in the humanities [my emphasis]" (see http://www.stanford.edu/group/spatialhistory/cgi-bin/site/index.php). Digital humanists create virtual worlds, for instance, the Humanities Virtual Worlds Consortium (see http://virtualworlds.etc.ucla.edu/), The Virtual World Project (see http://www.virtualworldproject.org/), and the case studies of the Ludwig Boltzmann Institute: Archaeological Prospection and Virtual Archaeology (see http://archpro.lbg.ac.at/case-studies/case-studies). The project summary of the Humanities Virtual Worlds Consortium runs as follows:
"The 1990s saw the development of digital technologies supporting the 3D (three dimensional) modeling of cultural heritage objects and environments. For the first time, humanists could digitally model and reconstruct the damaged or vanished monuments of the past. The results were typically 2D renderings or videos ("animations"). The decade of the 2000s saw the enhancement of 3D environments with avatars making it possible for scholars to enter into the 3D world and to use the Internet to interact with the simulated environment while communicating with fellow humanists located anywhere on the planet. Such software platforms are called networked virtual worlds (NVWs). The Humanities Virtual World Consortium (HVWC) will explore how the unique characteristics of networked virtual worlds can enable and advance humanistic research while working towards creating a sustainable base for mainstreaming the technology in humanities scholarship. Our initial work is based upon a series of related scholarly initiatives that draw upon virtual world technology and which are meant to: a) advance the current state of research on the phenomenology of space and place, b) design visual and aural conventions to evoke the sensorial experience lost to us due to technological and evidentiary constraints, c) test the current capabilities of virtual worlds to explore chronotopic problems, previously inaccessible due to the limitations of prior technology, d) guide future development of humanities-driven virtual worlds, […] [my emphases]" (see http://virtualworlds.etc.ucla.edu/?page_id=11).
In this light, we cannot help but notice the striking connections between multisensory law and the DH, at least as far as they bear on the visual, audio-visual, and multisensory design of digital artifacts. This in turn raises the question whether and, if so, how multisensory law might benefit from the DH, and vice versa of course. I am convinced that these two fields might cross-fertilize each other. Such cross-fertilization would also foster the growth and development of digital legal design.
Some readers might now be wondering how multisensory law relates to legal design. Let me first clarify how the digital humanities relate to design. As mentioned, the DH explore and practice digital design (see, for instance, also http://hdlab.stanford.edu/). I would hence suggest that multisensory law also explores and practices legal design, be it digital or not. For multisensory law is a house with many rooms. Its current theoretical focus are the sensory phenomena of the law, be they unisensory (i.e., visual, auditory) or multisensory (i.e., audio-visual and tactile-kinesthetic). This emerging legal discipline is also capable of designing these phenomena. Hence, in addition to its theoretical trajectory, multisensory law has a practical or rather a productive focus. Thus, the theory and practice of multisensory law are complementary. They are like the two (different) sides of a coin, like yin and yang.
Fig. 3 Yin yang grown in nature, available at: http://commons.wikimedia.org/wiki/File:Nat%C3%BCrlich_gewachsenes_yin-yang-.jpg
Hence, there should be no "tensions between [a] theoretical critique" of legal design products and "productive theory" (Hayles, loc. cit., 41; HAYLES'S observations refer to the DH. Given their poignance, I take the liberty of transferring them to the relationship between multisensory law and legal design). It is most likely, I would argue, that legal designers will also develop their own theory, potentially to build a disciplinary house of their own. Already at this early stage, I would, however, warn against splitting multisensory law and legal design. Multisensory law theory prevents legal design from being under-theorized. Legal design stops multisensory law theory from over-theorizing. It would go beyond the scope of this posting to further elaborate on the relationship between multisensory law and legal design. Yet, it has to be said already now that multisensory law will lead to rethinking and re-conceptualizing the law, particularly the established disciplines of the applicable law and the legal basic disciplines.
In his famous book Understanding Media, MARSHALL MCLUHAN wrote a chapter entitled "The Medium Is the Message" (Marshall McLuhan, Understanding Media: The Extensions of Man (London, New York, NY: Routledge, 1964) (reprint 2008), 7–23). In this chapter, he observes: "The effects of technology do not occur at the level of opinions or concepts, but alter sense ratios or patterns of perceptions [my emphasis] steadily and without any resistance" (McLuhan, loc. cit., 19). Thus, the New Media change the sense ratios and patterns of perceptions in the legal context, too. In 1967, three years after the publication of Understanding Media, MCLUHAN & QUENTIN FIORE stated: "All media work us over completely. They are so pervasive in their personal, political, economic, aesthetic, psychological, moral, ethical, and social consequences that they leave no part of us untouched, unaffected, unaltered. The medium is the massage [my emphases]" (Marshall McLuhan & Quentin Fiore, co-ordinated by Jerome Agel, The Medium is the Massage (London: Penguin Books, 2008 (first published by Bantam Books, 1967), 26). From this fundamental insight, it follows that the new media, together with their visual, audio-visual and ultimately multisensory potential, also touch the law.
Fig. 4 Marshall McLuhan, Quentin Fiore: The Medium is the Massage (book spread, pages 34-- 35, original photo: Peter Moore) Published in 2001 by Ginko Press Inc., Corte Madera, CA, USA. ISBN: 1-58423-070-3, available at: http://commons.wikimedia.org/wiki/File:The_book.JPG
The workshop on visual contract design at Stanford University is part of a bigger trend. The Legal Design Jam can be brought into line with increasing visual legal communication practices (see Colette R. Brunschwig. Forthcoming. "On Visual Law: Visual Legal Communication Practices and their Scholarly Exploration," in Zeichen und Zauber des Rechts [Signs and the Magic of the Law], Festschrift for Friedrich Lachmayer, eds. Günther Schefbeck et al. (Bern: Editions Weblaw, 2013). With the help of visual, audio-visual and other multisensory media, legal designers, such as the four facilitators of the Legal Design Jam, are touching—or rather massaging—the law. I am not sure whether PASSERA, HAGAN, HAAPIO, and WELINDER would share my view, but I feel that the law currently finds itself in the middle of a sensory desert. To me, legal designers can contribute to leading it out of this desert. May Iustitia, Lady Justice, empower them to safely traverse this rough terrain. Among other virtues, this journey requires patience, a sense of proportion, calm, and persistence.
MCLUHAN & FIORE write: "Innumerable confusions and a profound feeling of despair invariably emerge in periods of great technological and cultural transitions. Our 'Age of Anxiety' is, in great part, the result of trying to do today's job with yesterday's tools—with yesterday's concepts" (McLuhan & Fiore, loc.cit., pp. 8 sq.). May the facilitators of the Legal Design Jam succeed in visually persuading the participants to perform their current and future legal or legally relevant tasks with today's tools and, I would add, methods.
Juridical humanists of the 15th and 16th centuries were scholars of many disciplines (see, for instance, Marcel Senn, Rechtsgeschichte: Ein kulturhistorischer Grundriss [Legal History: a Historico-Cultural Outline], 4th rev. and exp. ed. (Zurich: Schulthess, 2007), 197). "[In contrast to medieval jurisprudence stressing the independent character of legal science, the scholarly program of juridical humanism was oriented towards interdisciplinarity] Im Unterschied zur mittelalterlichen Jurisprudenz, die den eigenständigen Charakter der Rechtswissenschaft betont hat, ist ihr wissenschaftliches Programm interdisziplinär ausgerichtet" (Meder, loc.cit., 163). Multisensory lawyers and legal designers also embrace insights from non-legal disciplines and thus they resemble juridical humanists. Using digital tools and methods makes them digital juridical humanists, and thereby brings them closer to the discourse of the DH.
Drawing on works of classical ethicists (for instance, ARISTOTLE and CICERO), juridical humanists strived to humanize the law (see, for instance, Senn, loc. cit., 198 sqq.). Multisensory lawyers and legal designers aim at humanizing the law, by ad-justing it to the basic principle that "we are multisensory beings and we live in a multisensory world" (Paul Pagliano, The Multisensory Handbook: A Guide for Children and Adults with Sensory Learning Disabilities (London, New York, NY: Routledge, 2012), 3). Likewise, they seek to make the law more readily accessible and understandable to a wider public. If their attempt is successful, the addressees of the law will be empowered to assess whether it is just and fair. In this sense, multisensory lawyers and legal designers contribute indirectly to humanizing the law. In doing so, they follow in the tradition of juridical humanism.
Therefore, let us design and re-design the law multisensorily, whether legal norms are concerned, court judgments, the contents of legal education and research, legal information in e-government and e-justice, legal and legally relevant facts, and so forth.
HELENA HAAPIO has informed me that due to the fast-growing waiting list, the workshop facilitators will be holding a second Legal Design Jam in San Francisco on Saturday, October 12, 2013, 12–6 p.m. Location: The Embassy Network, 399 Webster Street, San Francisco, CA 94117, https://sf.embassynetwork.com.
Those interested should contact STEFANIA PASSERA (firstname.lastname@example.org). Once the the details have been finalized, additional information will become available at: http://www.mindspace.fi/en/legal-design-jam/. To sign up for this workshop, please go to: https://docs.google.com/forms/d/10B7w3jFeHqYWj7EHpmqIR-xPKR17HjM0ThujkJamNZs/viewform.