Abstract

http://ssrn.com/abstract=1915300
 


 



And the Winner Is: How Principles of Cognitive Science Resolve the Plain Language Debate


Julie A. Baker


Suffolk University Law School

August 23, 2011

University of Missouri-Kansas City Law Review, Forthcoming
Suffolk University Law School Research Paper No. 11-33

Abstract:     
“Legalese – you mean jargon? Legal jargon? Terrible! Terrible!” – U. S. Supreme Court Justice Stephen G. Breyer, 201'3

This statement captures the prevailing view in the teaching and practice of legal writing – that “legalese” is bad and must be eradicated and that plain language should be employed as the alternative to legalese. Yet defenders of legalese remain – and they argue that the language of the law is intertwined with the law itself, such that “simplifying” this language detracts from its meaning and makes it less precise. How, then, is a legal writer to write?

This article posits that the two different methods are not polar opposites, but rather are “endpoints” on the spectrum of language available to the legal writer. To explain this view, the article begins by reviewing what we mean by “legalese” vs. “plain language,” and how the one has fallen into disfavor while the other has become the prevailing method in legal writing pedagogy and practice. The article then undertakes a study of Cognitive Science, particularly Cognitive Fluency – the measure of how easy or difficult the mental process feels when the brain receives information. Fluency principles are critical to the understanding of the preference for plain language, which until now has been supported only by anecdotal and empirical surveys.

Applying fluency principles to legal writing, the article demonstrates that most of the time, plain language is, in fact, the right way to write, as it is “fluent” and thereby inspires feelings of ease, confidence, and trust in readers (whereas legalese is “disfluent,” engendering feelings of dislike and mistrust). The article suggests, however, that there are times when the legal writer’s analytical or persuasive goals may be served by more difficult, less fluent language – and that, going forward, an approach aimed at moderating fluency will produce the most effective legal writing. Thus, no language (except, maybe, “law French”) should be prohibited entirely, but all language should be considered as the range of options available to the skilled legal writer.

Number of Pages in PDF File: 22

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Date posted: August 24, 2011  

Suggested Citation

Baker, Julie A., And the Winner Is: How Principles of Cognitive Science Resolve the Plain Language Debate (August 23, 2011). University of Missouri-Kansas City Law Review, Forthcoming; Suffolk University Law School Research Paper No. 11-33. Available at SSRN: http://ssrn.com/abstract=1915300

Contact Information

Julie A. Baker (Contact Author)
Suffolk University Law School ( email )
120 Tremont Street
Boston, MA 02108-4977
United States
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