Redesigning the Law To Be More Accessible & The Bayh-Dole Act

Since time immemorial, the law has been inaccessible to normal people. It's abstract, abstruse, complex, and unnecessarily challenging. The law is indecipherable through no mystery or freak accident—the law has been designed to be frustrating, esoteric, and impenetrable. 

I use the passive voice primarily to make the point: “the law has been designed” to be, for lack of a better word, bad. But because the law has been designed and was designed to be inaccessible, the law can be redesigned and it can be redesigned to be better. 

The other reason I use the passive voice is that allocating responsibility for who made the law inaccessible is a tricky business: it’s a problem of immense magnitude with many culprits. Like “injustice” or “pollution” or other problems caused by “society”—and unlike throwing a ball or baking a cake—the inaccessibility of the law has more than one person to blame. 

Who is responsible for making the law inaccessible?

It’s vital to identify who has designed the law to be impossible to understand so that we can impress upon them to do better.

New tools have made it so lawyers and non-lawyers alike can put beautiful things in the world. The law should be easier to find, easier to read, and easier to understand—and yet it’s not.

Over time, the laws have been made, written, and designed by kings, emperors, judges, legislators, other politicians, clerks, interns, aristocrats, political elites, intellectuals, professors, administrative agencies, bureaucrats, special interest groups, other members of the ruling classes, and of course lawyers … lots of lawyers.

Collectively we’ll call these actors lawmakers—because that’s what they are, they’re the ones who made the law, and they’re the ones who are responsible for it being made poorly.

Why lawmakers have done a poor job designing the legal system

But why have lawmakers done such a lousy job making the rules that govern society? Some of the reasons for the law being inaccessible are good reasons that are inherent in lawmaking or the result of external constraints beyond the law’s control. Other reasons are bad reasons that are the product of nefarious motives, carelessness, or sheer laziness.

Here are many of the reasons lawmakers have poorly designed the law, with an explanation on how excusable each reason is. 

• The difficulty in clearly and concisely articulating complex abstract concepts (a good reason inherent in all lawmaking).
• The infinite intricacy of governing all human relations in a complex, interconnected world (a good reason that will remain intractable for the foreseeable future).
• The impossibility of creating good and just laws for every conceivable situation (a good and excusable reason).
• The process of compromising and drafting laws by consensus (a partially excusable reason),
• The need to maintain the law over time through amendments to reflect changing administrations, values, and needs (partially excusable).
• Mere tradition in that the law has always been abstruse (bad).
• A habit for lawyers to be verbose without clarity (bad).
• The inheritance an already dysfunctional system of poorly designed laws (an excusable but bad reason).
• The inclusion of special interests in writing legislation to introduce exceptions, carve-outs, and unnecessary complexity (among the worst and most inexcusable reasons).
• Professional preservation to serve as a barrier of entry so that ordinary people, corporations, and small businesses require the assistance of attorneys to navigate the law (an immoral reason that is nonetheless extant).
• The intentional or subliminal desire for the law to act as a form of oppression for certain classes of people (possibly the most nefarious and inexcusable reason).
• A lack of true understanding and clarity on the part of lawmakers themselves (a bad reason in that it’s result of intellectual dishonesty).
• Unsophisticated technology without the means to easily edit, rewrite, format, illustrate, or provide figures (excusable until recently).
• Inadequate training of lawmakers in writing, logic, design, and common decency (excuses the behavior of individuals but not the profession as a whole).
• A lack of emphasis on writing rules in a way ordinary people can understand, such as in those in if-then format (inexcusable).
• The lack of lawmakers with a creative, design-oriented mindset (a good but identifiable reason to which the legal profession has not paid adequate attention).
• A lack of desire, motivation, or care to fix it (bad). 

As anyone can see, some of the reasons lawmakers have done a poor job making the law accessible to ordinary citizens are inherent in lawmaking and excusable. Others are completely the doing of lawmakers and inexcusable. 

Other reasons for the failures in the law were or have been excusable in the past. But changes in our technology, values, and attentiveness make them fixable in the near- to mid-term future. I’ve bolded several of those reasons as fixable with the help of Simple Legal Guides and other like-minded people and organizations. More sophisticated technology, improved training and emphasis on writing laws in plain english, an influx of lawmakers with a design mindset, and the desire to improve society all make a better-designed system of laws within reach. 

One will forgive the Archbishop of Canterbury for writing the indecipherable Magna Carta (pictured below) on parchment using quill pens in medieval Latin in 1215, or even the U.S. Congress for reprinting endless blocks of rambling typewritten text in thick, bound tomes of regulations in 1980. But in 2020, we should have the will, means, and tools to design better laws that ordinary people can access and understand.

 

Modern word processing, web, and design tools have given lawmakers the tools to make the law simpler and easier to read. An inchoate movement in the legal profession has tried (mostly unsuccessfully) to push lawyers toward expressing the law in clear, plain English. The field of design has gone beyond replicating pages of typewritten text on a screen to create legible, navigable texts. New tools have made it so lawyers and non-lawyers alike can put beautiful things in the world. The law should be easier to find, easier to read, and easier to understand—and yet it’s not. 

Redesigning the law to be more accessible using the Bayh-Dole Act as example

To show an example of what the law could be and look like, I’ve rewritten a big, bulky, technical law with a lot of administrative requirements to be clear, visually appealing, and easier to understand. 

Congress passed the Bayh-Dole Act (aka the Government Patent Policy Act of 1980) for several reasons, but the chief reason was to spur innovation by allowing universities, research institutions, and small businesses to own the intellectual property (IP) produced through federal research. 

Before the Bayh-Dole Act, the U.S. government owned the inventions produced through federal research. But the public was not experiencing the benefits of the great ideas produced through the research because the government lacked the resources and proficiency to share the inventions with the public. The thinking was that if the government provided the universities, research institutions, and small businesses with the understanding, proximity, and expertise to commercialize ideas with the ability and incentive to do so, then the public would receive more of the benefits of research. 

Spearheaded by senators Birch Bayh of Indiana and Bob Dole of Kansas, the Bayh-Dole Act essentially created the field of “technology transfer”—the movement of research ideas from the lab to the marketplace. Some consider the Bayh-Dole Act a valuable bipartisan law for facilitating innovation, economic development, and public benefit. While not everyone agrees it’s been effective, it is an untenable position to argue that it’s a bad law with bad motivations. 

But it’s also not thrilling literature, as one can see from the photo below. In that sense, Congress poorly designed the Bayh-Dole. Codified at 37 C.F.R. § 401, the Bayh-Dole Act weighs in at 17 pages and several thousand words of boring, bland, prosaic text. And this is a law on the good end of legislation that is supposed to be central to innovation in the United States. If lawmakers can’t be innovative in how they write the laws, how can they expect to be innovative in legislative solutions to produce innovation?

 

There are several features that distinguish the Reader-Friendly Version of the Bayh-Dole Act from the original:

• Concise writing,
• Clear language,
• Simplified concepts,
• Rules in if-then form,
• Easy-to-read typefaces,
• Color,
• Highlighted and bold operative words,
• Deemphasized explanatory notes,
• Explicit identification of exceptions,
• Illustrations and figures,
• Tabular format for sections,
• Clear labels to show the subsection at all times,
• Compliance timelines,
• A table of contents with icons to help the quickly reader find where to go.

The combination of these elements result in an improved version that is clear, simple, and easy-to-understand even to people unfamiliar with legalese. The figures below illustrate the transformation of the text below. 

When needed, the original text should still be used to verify the contents or language of the original codified version of the Bayh-Dole Act—just as one should verify the primary source when looking at Am. Jur., Wikipedia, or any secondary source (or even the codified version of the original public law). But I took care to never alter the meaning of the original codified regulations. Obviously there were limits to what could be done with the original text—but even more can be done if lawmakers are conscientious at the drafting stage. 

Download Simple Legal Guides’ Reader-Friendly Version of the Bayh-Dole Act for free at the end of this post. 

We can design the law to be better and more accessible

Lawmakers have poorly designed the system of laws we’ve inherited—resulting in a legal system that is inaccessible and impenetrable to the average citizen. Is it necessary that the law is incomprehensible to ordinary people? Not any longer. Simple Legal Guides is here to design a better, more accessible law for everyone. The Bayh-Dole Act is but one example of how Simple Legal Guides has and will continue to improve how we make, illustrate, and understand the law. 

Download the reader-friendly version of the Bayh-Dole Act below, or email simplelegalguides@gmail.com for consultation redesigning materials or producing visual aids for your practice.