1. law, govt and politics

. I
By
F. Reed Dickerson
Should plain English be legislated?
My short answer is no; but, on
second thought and with reservations, yes. Maybe I should enlarge on
that.
It is hard to say when the complaints against lawyers' language
began . Although hardly the first,
Jeremy Bentham was fuming about
legislative long-windedness in 1843. 1
Professor Fred Rodell, writing in 1939,
said, "Almost all legal sentences . ..
have a way of reading as though they
had been translated from the German
by someone with a rather meager
knowledge of English." 2 Two years
later someone observed that statutes
were being spoken of as" disgraceful,
unworkmanlike, defective, unintelligible, abounding in errors, illpen ned, inadequate, looselyworded, depraved in style, [full of]
pecu Iiar absurdities, mischievous,
baneful in influence ... confusing,
obscure, ... overbulky, redundant,
entangled, unsteady, disorderly,
complex, to say nothing of being
'uncognoscible.' " 3
The modern push for clear
regulations began in the early 40's,
following Congressman Maury
Maverick's coinage of "gobbledygook" and the Office of Price Ad-
332
ministration's first attempts to impose
price controls. Finding that America's
small businessmen could not understand its regulations without the
intervention of a lawyer, OPA
engaged Rudolf Flesch and Professor
David F. Cavers of the Harvard Law
School to help the agency communicate more effectively with the people
whose prices it regulated.
From OPA's experience came a
body of expertise in simplifying laws
that remains useful even today. Unfortunately, the movement to
simplify faded with the war pressures
that supported price control. The resulting passivity went undisturbed,
even by the Korean and Vietnamese
wars, until the explosion of the
consumer movement, which recently
turned its attention to documents
that the typical consumers of goods
and services are being persuaded to
accept: insurance policies, product
warranties, and credit documents. At
the same time, unsophisticated
businessmen were being subjected to
a barrage of detailed regulations from
agencies such as the Occupational
Safety and Health Administration and
the Environmental Protection
Agency. As a result, public pressure to
simplify legal instruments is greater
today than it was even during World
War II.
How do we solve the pro
First, we have to understand it.
involves, among other th1
knowing how lawyers got into
mess. The traditional explanation,
course, has been that every disa
needs its own technical terms,
of which may be meaningless to
siders. Also, the law often deals
matters that are inherently
cated . Both statements are true.
also true that many special legalt
have perfectly adequate plain-£
equivalents and some matters
not be as complicated as they
seem. Here, a good case for si
cation can be made.
Another explanation is that
of traditional law lan gua
traceable to the time when
necessary to take account of, nol
Anglo-Saxon, but Norm.an. F
Old Norse, Celtic, and LaunfOf
the reason, for instance•.
couplets like "null and ~oid
in
.
say the same t hing_ h a
languages, but for whic
longer exists.
·d i·udges who responded only to and coherent manner using words
. ns. Here, too, t he
gUI e. I inca ntatio
with common and every day
1Pecia
d has , for t h e most part, meanings." In case of non-complid
nee
ance, the consumer is entitled to
disappeare .
actual
damages and a civil penalty of
• anot her ex planation is that
11
$50,
but
not attorneys' fees or court
suers have been enmeshed in a
costs.
Defenses
include good faith
awY rk of o utwo rn forms that they
"e1wobeen re Iuctan t to revise
. 1"f t h e and full performance. The Attorney
a e have been adjudicated in General may bring an action for an in111
junction or restitution .
F. Reed Dickerson, Bloomington, has been a law
' : and un ab le to revise if they do
professor at lndlana University School of Lawcouru,ndersta nd them which is often
Bloomlngton since 1958, and also served as assis01
Massachusetts' plain language law6
" case. A t horo ug h purging
·
··e
o f applies only to insurance policies.
tant dean from 1971-75. He received his LLB. In
1934 from Harvard, also, LL.M. In 1939 from Colum=·ending for ms would be a happy
There is no money limit and the
bia University, and J.S.D. In 1950. Prof. Dickerson Is
ent.
a member of the Indiana State Bar Association.
standards require (1) scoring at least
But do we need a law?
50 on the Flesch (or equivalent) readThis article Is an edited and slightly expanded
version of remarks made at the conference on "Plain
The idea of legislati ng the specifics ability test, applied according to
English In a Complex Society," Indianapolis,
good writing is high ly repugnant to detailed statutory instructions, and (2)
October 13, 1979.
· and not merely because most of meeting type-face standards ,
e people wh o have been writing avoiding undue prominence of partiese laws have fail e d to get an cular provisions, including a table of consumer loan law9 covers "loans
ldeQUate handle on the principles of contents or subject index, maintain- made to a consumer by a supervised
lender for personal, family or housear communication. Th ere is also ing appropriate margins and ink-tohold purposes, if the debt is payable
desirabilityof not tyi ng the hands paper contrast, and providing an
·draftsmen who need elbow room . organization and summary "con- in installments or a finance charge is
ducive to understandability ." made," unless the amount involved
E en so, a modest case can be made
Compliance is required only to exceeds $100,000. Each such
some kind of law to help the legal
obtain clearance from the insurance consumer loan contract must be in
o ession overco me its present,
commissioner.
"plain language," defined as "written
ly justifiable in ertia. With out it,
in a clear and coherent manner using
organized bar is un likely to
Connecticut's law 7 requires "plain
words with common and every day
ate effective action to improve language" for the same general kinds
meanings. " It must also have a
clarity of statutes, reg ulati ons, or of consumer contracts as New York's
"[m]eaningful
arrangement, " delegal instrum ents.
law protects, but only those involvfined as " [a]ppropriately divided and
o put it inelegantly, the organized ing up to $25,000. Again, the standard captioned by its various sections."
needs a solid le gislative jolt. The is "plain language," except that it is Non-compliance is subject to legal
tied to two alternative sets of supple15 true of the law schools. I am
action by the superintendent of the
persuaded that this can be done mentary standards. The first has 9 Bureau of Consumer Protection .
ut seriously co mpromising the criteria such as length of sentences, However, a supervised lender may
typography, verb forms, and
oples of good draftsmanshi p
gain immunity from suit by securing
•
captions.
The second has 11 criteria
se we already know how to
the Bureau's certificate of
ify legal docu ments, it is high such as words-per-sentence , compliance.
~~ we get moving. Un fortun- syllables-per-word, length of paraOne trouble is that the "plain
•I ave.' at this moment, only a graphs, and space between paraEnglish" ideal, if not defined, is a bit
graphs.
There
are
elaborate
instruc• "?tion of what belongs in
1
tions for counting words and off the mark. For one thing, "plain
eg1sl ative ma ndate.
determining
what is a "sentence" or English" is in many legal contexts anyfirst eff
~ .,
orts to legislate " plain
"syllable." Offended consumers may thing but plain. Besides, the concept
-11e show
"d I
ch
WI e Y differing
recover a civil penalty of $100 plus suggests that there is an ideal way to
:~·N
ew
York's
Sullivan
laws
(continued on next page)
attorneys' fees. Defenses include
5
consumer" docu m ents
good faith, preparation of the 1. Nomography, or the Art of Inditing Laws, in 3 Bentham,
:r~ residen ti al leases o; contract by the consumer,
Works (Bowring's ed. 1843) 231-83.
or mone
Woe Unlo You, L•wyers! (Reynal & Hilchcock 0939) p. 185.
@\ for "
y, property, or
attendance by plaintiff's attorney at 3.2. Indictment
of the Form of Laws. Arizona News Letter No.
Id
Personal, fami ly, or
15, pp. 7, 9 (January 1941).
its signing, full performance, and the
Purposes"
d .
4. The Language of lhe Law (Lillie, Brown & Co., 1963), ch. 5.
expiration of six years.
an involve
or I
5. L•ws of 1977, chapler 747, as amended by Laws of 1978,
ess
Th
d
chapler 199.
d is " :
e man ated
Maine's plain language insurance 6. Gen.
L. , ch. 175, December 6 1977.
~I
p 1a1n lan gu age ,, d
8
angu age " .
'
e- law generally follows the Massa- 7. P.A. 79-532, June 22, 1979.
Wntten in a clear chusetts pattern . Its plain language 8. P.L. 267, May 22, 1979.
9. P.O. 483, June 20, 1979.
•
1
11
I
I
I
I
l1
I
. I
By
F. Reed Dickerson
Should plain English be legislated?
My short answer is no; but, on
second thought and with reservations, yes. Maybe I should enlarge on
that.
It is hard to say when the complaints against lawyers' language
began . Although hardly the first,
Jeremy Bentham was fuming about
legislative long-windedness in 1843. 1
Professor Fred Rodell, writing in 1939,
said, "Almost all legal sentences . ..
have a way of reading as though they
had been translated from the German
by someone with a rather meager
knowledge of English." 2 Two years
later someone observed that statutes
were being spoken of as" disgraceful,
unworkmanlike, defective, unintelligible, abounding in errors, illpen ned, inadequate, looselyworded, depraved in style, [full of]
pecu Iiar absurdities, mischievous,
baneful in influence ... confusing,
obscure, ... overbulky, redundant,
entangled, unsteady, disorderly,
complex, to say nothing of being
'uncognoscible.' " 3
The modern push for clear
regulations began in the early 40's,
following Congressman Maury
Maverick's coinage of "gobbledygook" and the Office of Price Ad-
332
ministration's first attempts to impose
price controls. Finding that America's
small businessmen could not understand its regulations without the
intervention of a lawyer, OPA
engaged Rudolf Flesch and Professor
David F. Cavers of the Harvard Law
School to help the agency communicate more effectively with the people
whose prices it regulated.
From OPA's experience came a
body of expertise in simplifying laws
that remains useful even today. Unfortunately, the movement to
simplify faded with the war pressures
that supported price control. The resulting passivity went undisturbed,
even by the Korean and Vietnamese
wars, until the explosion of the
consumer movement, which recently
turned its attention to documents
that the typical consumers of goods
and services are being persuaded to
accept: insurance policies, product
warranties, and credit documents. At
the same time, unsophisticated
businessmen were being subjected to
a barrage of detailed regulations from
agencies such as the Occupational
Safety and Health Administration and
the Environmental Protection
Agency. As a result, public pressure to
simplify legal instruments is greater
today than it was even during World
War II.
How do we solve the pro
First, we have to understand it.
involves, among other th1
knowing how lawyers got into
mess. The traditional explanation,
course, has been that every disa
needs its own technical terms,
of which may be meaningless to
siders. Also, the law often deals
matters that are inherently
cated . Both statements are true.
also true that many special legalt
have perfectly adequate plain-£
equivalents and some matters
not be as complicated as they
seem. Here, a good case for si
cation can be made.
Another explanation is that
of traditional law lan gua
traceable to the time when
necessary to take account of, nol
Anglo-Saxon, but Norm.an. F
Old Norse, Celtic, and LaunfOf
the reason, for instance•.
couplets like "null and ~oid
in
.
say the same t hing_ h a
languages, but for whic
longer exists.
·d i·udges who responded only to and coherent manner using words
. ns. Here, too, t he
gUI e. I inca ntatio
with common and every day
1Pecia
d has , for t h e most part, meanings." In case of non-complid
nee
ance, the consumer is entitled to
disappeare .
actual
damages and a civil penalty of
• anot her ex planation is that
11
$50,
but
not attorneys' fees or court
suers have been enmeshed in a
costs.
Defenses
include good faith
awY rk of o utwo rn forms that they
"e1wobeen re Iuctan t to revise
. 1"f t h e and full performance. The Attorney
a e have been adjudicated in General may bring an action for an in111
junction or restitution .
F. Reed Dickerson, Bloomington, has been a law
' : and un ab le to revise if they do
professor at lndlana University School of Lawcouru,ndersta nd them which is often
Bloomlngton since 1958, and also served as assis01
Massachusetts' plain language law6
" case. A t horo ug h purging
·
··e
o f applies only to insurance policies.
tant dean from 1971-75. He received his LLB. In
1934 from Harvard, also, LL.M. In 1939 from Colum=·ending for ms would be a happy
There is no money limit and the
bia University, and J.S.D. In 1950. Prof. Dickerson Is
ent.
a member of the Indiana State Bar Association.
standards require (1) scoring at least
But do we need a law?
50 on the Flesch (or equivalent) readThis article Is an edited and slightly expanded
version of remarks made at the conference on "Plain
The idea of legislati ng the specifics ability test, applied according to
English In a Complex Society," Indianapolis,
good writing is high ly repugnant to detailed statutory instructions, and (2)
October 13, 1979.
· and not merely because most of meeting type-face standards ,
e people wh o have been writing avoiding undue prominence of partiese laws have fail e d to get an cular provisions, including a table of consumer loan law9 covers "loans
ldeQUate handle on the principles of contents or subject index, maintain- made to a consumer by a supervised
lender for personal, family or housear communication. Th ere is also ing appropriate margins and ink-tohold purposes, if the debt is payable
desirabilityof not tyi ng the hands paper contrast, and providing an
·draftsmen who need elbow room . organization and summary "con- in installments or a finance charge is
ducive to understandability ." made," unless the amount involved
E en so, a modest case can be made
Compliance is required only to exceeds $100,000. Each such
some kind of law to help the legal
obtain clearance from the insurance consumer loan contract must be in
o ession overco me its present,
commissioner.
"plain language," defined as "written
ly justifiable in ertia. With out it,
in a clear and coherent manner using
organized bar is un likely to
Connecticut's law 7 requires "plain
words with common and every day
ate effective action to improve language" for the same general kinds
meanings. " It must also have a
clarity of statutes, reg ulati ons, or of consumer contracts as New York's
"[m]eaningful
arrangement, " delegal instrum ents.
law protects, but only those involvfined as " [a]ppropriately divided and
o put it inelegantly, the organized ing up to $25,000. Again, the standard captioned by its various sections."
needs a solid le gislative jolt. The is "plain language," except that it is Non-compliance is subject to legal
tied to two alternative sets of supple15 true of the law schools. I am
action by the superintendent of the
persuaded that this can be done mentary standards. The first has 9 Bureau of Consumer Protection .
ut seriously co mpromising the criteria such as length of sentences, However, a supervised lender may
typography, verb forms, and
oples of good draftsmanshi p
gain immunity from suit by securing
•
captions.
The second has 11 criteria
se we already know how to
the Bureau's certificate of
ify legal docu ments, it is high such as words-per-sentence , compliance.
~~ we get moving. Un fortun- syllables-per-word, length of paraOne trouble is that the "plain
•I ave.' at this moment, only a graphs, and space between paraEnglish" ideal, if not defined, is a bit
graphs.
There
are
elaborate
instruc• "?tion of what belongs in
1
tions for counting words and off the mark. For one thing, "plain
eg1sl ative ma ndate.
determining
what is a "sentence" or English" is in many legal contexts anyfirst eff
~ .,
orts to legislate " plain
"syllable." Offended consumers may thing but plain. Besides, the concept
-11e show
"d I
ch
WI e Y differing
recover a civil penalty of $100 plus suggests that there is an ideal way to
:~·N
ew
York's
Sullivan
laws
(continued on next page)
attorneys' fees. Defenses include
5
consumer" docu m ents
good faith, preparation of the 1. Nomography, or the Art of Inditing Laws, in 3 Bentham,
:r~ residen ti al leases o; contract by the consumer,
Works (Bowring's ed. 1843) 231-83.
or mone
Woe Unlo You, L•wyers! (Reynal & Hilchcock 0939) p. 185.
@\ for "
y, property, or
attendance by plaintiff's attorney at 3.2. Indictment
of the Form of Laws. Arizona News Letter No.
Id
Personal, fami ly, or
15, pp. 7, 9 (January 1941).
its signing, full performance, and the
Purposes"
d .
4. The Language of lhe Law (Lillie, Brown & Co., 1963), ch. 5.
expiration of six years.
an involve
or I
5. L•ws of 1977, chapler 747, as amended by Laws of 1978,
ess
Th
d
chapler 199.
d is " :
e man ated
Maine's plain language insurance 6. Gen.
L. , ch. 175, December 6 1977.
~I
p 1a1n lan gu age ,, d
8
angu age " .
'
e- law generally follows the Massa- 7. P.A. 79-532, June 22, 1979.
Wntten in a clear chusetts pattern . Its plain language 8. P.L. 267, May 22, 1979.
9. P.O. 483, June 20, 1979.
•
1
11
I
I
I
I
l1
I
Plain English
continued
say things that will
audiences.
fit all
legal
Because legal audiences differ, the
draftsman should be able to adjust his
focus accordingly. On the other
hand, no great harm is involved if
such a law focuses solely on professionals who deal with unsophisticated consumers, where a Reader's
Digest level of understandability, as
measured for example by the Flesch
readability test, makes some sense.
On the other hand, it makes less sense
if the effort is spread over a wider
base within which audiences
materially differ.
Remember, too, that readability is
not the same as substantive clarity. A
document can meet the Flesch or
Gunning test 100 percent without
rising above pure gibberish . What we
should shoot for here is a general per-
formance standard of decently
readable substantive clarity (as
adopted by New York' s Sullivan law
and Maine's law on consumer loan
agreements) bolstered, perhaps, by
suggested specifics to be taken into
account (such as type face, paragraphing, and cross-referencing) ,
without mandating a myriad of detail
(as in Connecticut's plain language
law). As for " simplicity," we should
seek only a simplicity that does no
material violence to the substantive
values that inhere in the subject
matter.
Moreover, any approach to clar ity
that is t ied only to language misses at
least two important aspects of the
problem. Functional clarity depends
not only on clarity of language but
also on clarity of concept and clarity
of organization . There may also be a
fourth : clarity of context. Successful
communication necessarily takes
account of external context, which is
the part of any communication that is
already in the minds of
accessible to, the legal au~for ~
includes the many tacit as ien
surn
not a Iways rea d ·1
1 y determ·
ina
color the meaning of the
1
used. Here we are talking
normal workings of imp1·1 a.
cat1
The main value of the plain
laws I have seen appears t be
bolic. Although New York?
law is probably (in any seriosus
unenforceable because of "ts ,.
faith " defense
(most bad ~r
.
operate in good faith), the
resu Its that it has already prod
that state are impressive.
Ultimately, good draftingwil
only with better law school
tion. But, until we crack tha
" plain English" laws, which
effect in at least four states and
ing in upwards of 30, may, if
improved, be a useful t
expedient.
*
•
*
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