Comment by jstalin | Hacker News Reader

Comment by jstalin | Hacker News Reader

There is a movement in the legal community toward using plain English. Though, some think that doing so somehow reduces the quality of the legal writing.

I was recently struck by how Google's terms of service are written in plain English legal writing:

https://www.google.com/intl/en/policies/terms/

Compare a contract term like this, often referred to as a severability clause (from Google's ToS): "If it turns out that a particular term is not enforceable, this will not affect any other terms."

With this, in traditional legalese: "If any term or other provision of this Agreement is determined to be invalid, illegal or incapable of being enforced by any rule or law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party."

Both have the exact same effect.

The latter does say a bit more in my reading. It says that if the severed clause was a factor in any signatory's assent then the whole agreement may be null. That seems pretty important.

But that's implied in a contract. If it becomes something you didn't (objectively) intend to agree on, it's not a contract anyways.

Spelling out the implied, creating long lists, and adding wordiness are common features of legalese.

I'm fairly sure it has something to do with making the text more appealing to clients -- if they hire you to write a contract and then give them a "normal" document they feel they could have written themselves (whether or not that's true), they'll be upset.

You spell out the implied to reduce surprises about what parties think are implied.

You create lists to create concrete boundaries for sets of things, and to leverage accepted rules for how to interpret lists in legal documents. E.g. say you are covering an insurance client against "disasters." What does that mean? The English word "disaster" can encompass everything from Fukushima to cancer to your kid failing out of school. Instead, you might write: "we will cover floods, hurricanes, forest fires, and other disasters." This is technically redundant, because the enumerated items are subset of "disasters." However, under the accepted rules of legal interpretation, the enumerated items will cabin the more general concept of "disaster." You have a fighting chance in court of defending not covering someone's getting cancer by relying on the argument: "is cancer like a flood, hurricane, or forest fire?"

Additional wordiness is often the result of the need to be precise (or copy & pasting from precedent, or being in a hurry). Try describing the operation of some C code in English in very precise terms. You'll find that ordinary English leaves implicit a lot of "who, what, where, when" type details, and that making them explicit creates a lot of wordiness.

Law is only meaningful in so much as it can be understood by those obeying, enforcing, and judging it -- otherwise you may as well have simple arbitrariness.

Source code is a rather off analogy to use here for that reason: judges can read and understand plain english but compilers can't understand comments.

There's probably a lot to be gained by having the dual model approach that (eg) Creative Commons uses, where they have a very human-understandable summary and some clickable (albeit relatively simple) legal writing underneath. There's no reason OSHA, banks, and Congress couldn't do that too.

> where they have a very human-understandable summary and some clickable (albeit relatively simple) legal writing underneath.

OK, let's say someone relies on the human-understandable summary and does something the legal writing forbids.

Their understanding of the human-readable part is defensible, at least, but it obviously is not what the person who wrote it intended that part to mean; the legal writing, on the other hand, is constructed in a way that the courts have had a lot of experience interpreting, so it is, at least to a lawyer or a judge, perfectly clear and well-written.

Obviously, if the plain language part and the legal language part are deliberately at odds, that's likely fraudulent and the court should construe the contract to the detriment of whoever wrote it. (This actually happens in real life to some extent.) But in this case, the difference in meaning is arguable at best and certainly not intentional. Which part did the person agree to? Which part should be enforced? Can't you just feel the judge's blood pressure rising?

So, yes, there is a reason OSHA, banks, and Congress can't do that.

But if something isn't expressible in plain language, how could anyone claim to have a valid contract about it? that sounds like the very definition of "unconscionable".

> But if something isn't expressible in plain language

It is expressible in plain language. The scenario I brought up states that the person responsible for expressing it in plain language did so in a way that might have left a loophole or otherwise failed to capture all of the subtleties the legal language version expresses.

True, and if I were well-acquainted with the legal system then that bit of context would be enough to let me sleep well. But as a layman, I want some language to make it explicit that severance of a particularly important term will nullify the agreement. So we end up getting the inflated version again.

Not a lawyer, but is that really true?

When I lived in NYC I heard from a lawyer there that a lot of landlords don't like to rent to lawyers, because lawyers know what parts of their rental contract don't actually have legal force. This suggests that there are a lot of contracts out there signed by a lot of renters where the landlord didn't intend to give you the rights that you have under the law. But you still have those rights, and those are still valid contracts.

Depends on the type of contract.

But in general, yes, UCC and other state law statutes often supply default terms.

> But that's implied in a contract. If it becomes something you didn't (objectively) intend to agree on, it's not a contract anyways.

In which case Google's severability clause is legalese by omission ;-)

But legalese is plain English. It's verbose in order to eliminate ambiguity and double meanings, not to be complex for complexity's sake.

Sometimes legalese is intentionally constructed to create ambiguity and double meanings.

It's more about using previously tested blocks of language. Here's a good example: http://en.wikipedia.org/wiki/Himalaya_clause

Or the drafter may not be a very good writer! It's easy to fall back on legalese instead of taking the time to make something concise (see the article/video).

> It's more about using previously tested blocks of language. Here's a good example: http://en.wikipedia.org/wiki/Himalaya_clause

Right; there's some cargo culting in legal writing. Until a particular form of words has been tested in court, no-one really knows whether it will stand up.

If there's an untested standard form, most people won't want to experiment with a variation because if their variation happens to be the one that fails, there's a possibility of a negligence suit for not using the standard form.

If there's a tested standard form, even fewer people will want to experiment, for the same reason.

...there's some cargo culting in legal writing...

Some? In my experience, it rises to the level of "massive amounts of".

This is clearly wrong. All you need to do is read a bit of legalese to someone, have them ask "what's that mean?", and then realize that what you say next to them is entirely different.

Legalese has all manner of special constructs that have to be learned to understand.

Read a "plain English" document from 1850. Special constructs ("terms of art", or "programming languages"), are very useful.

There's a difference between a dense legal definition of what an escape door is (so that a small number of people can correctly create escape doors) and obfuscatory fluff that everybody should be adhering to but that nobody reads. ToS often feel like they've been created to give the company a get out clause for anything they want.

(http://www.sourcetext.com/grammarian/less-than-words-can-say...)

> As it happens, that horrid prose serves its aims perfectly. Regulations of this nature have one clear purpose, and that is to answer, before the fact, any imaginable questions that might be asked in a court of law.

There are some problems with The Underground Grammarian, but it's entertaining if you're in the right mood.

Speaking as a lawyer, this is entirely false. The reason most legalese exists is because most lawyers are bad at writing, and reuse blocks of text from other lawyers who are bad at writing.

It is entirely possible to write plain and understandable english that is legally unambiguous. As someone mentioned above, there has been a huge movement towards this in law schools. It has had some impact, but it's still going to be a long time.

That said, even some of the older folks in the legal field hate legalese. When I clerked for an appeals court judge, we used to do two things: 1. Read every single opinion out loud to all the clerks in order to make sure it sounded sane and was understandable to the other folks at the table, who had no idea what the case was about. 2. Remove all unnecessary words and anachronisms. The judge used to pull out his copy of strunk and white and beat us over the head with it.

And yet I have never seen a legal opinion to use the words "see above" or "see below." They always fall back on the Latin.

This is, AFAIK, because all of the standardized citation styles you could pick from require it.

Is there any case though of a Supreme Court justice facing any consequences for insisting on a non-standard citation style? What are they going to do, impeach for writing clearly?

That's like saying The Odyssey was written in plain Attic Greek, which is false.

As an amateur linguist, I would say that legalese (like Homeric Greek) is a specialized dialect which is both hyperdefined and formulaic (except that lawyers call formulas "terms of art").

As a piece of interesting trivia, Calvert Watkins suggests that formulas of Roman legalese derive from pre-Roman liturgical, magical, and mythological poetics so there probably is a connection between the formulaic dialect of Homer's epics and the legalese of today to the extent that it is related to Roman legalese.

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