Regulating Plain Language
66 Pages Posted: 6 Jan 2023 Last revised: 4 May 2023
Date Written: April 21, 2023
What one scholar coined a “quiet revolution” in consumer contracts has been a half century in the making. And the revolution extends well beyond consumer contracts. Legislatures and regulators passed over seven hundred plain language laws infusing plain language into consumer contracts, notices, disclosures, government reports, court forms, election ballots, and more. They did so with one goal in mind: make legal documents more understandable. This shared goal crosses doctrines and pierces the traditional private law-public law divide. Yet despite sharing a goal, lawmakers differ dramatically on how to achieve it. The result is a bizarre patchwork of constitutions, statutes, and regulations with massive variations.
By examining these variations, this Article takes on the previously overlooked normative implications of plain language law design. Lawmakers must decide which documents to cover, what standard to apply, and what enforcement and penalties to allow, which necessarily involves classic policy-infused decisions like choosing between the free market or regulation, allocating burdens and costs, and line drawing. As a result, the Article contends the traditional view that document design is a lawyer skillset reducible to convenient lists of “best practices” is wrong. Lawmakers have replaced lawyer discretion. Their involvement, and the scale and complexity of their design choices, have converted plain language into a legal doctrine driven by quintessential public policies.
More, the complexity of plain language laws extends beyond how to design the laws to the more fundamental question of who designs them. The complex patchwork of codified laws from legislatures and regulators sit alongside expansive common law plain language requirements unilaterally injected by courts. Predictably, with so many decisions made by different decisionmakers, discrepancies galore pervade the national landscape. Such discrepancies create separations of powers tension and inefficiencies as drafters struggle to find and comply with so many different requirements from different lawmakers. The Article argues for an expansion of plain language common law because courts are best equipped to create such a standard.
It turns out plain language laws are anything but plain.
Keywords: plain language, plain english, separation of powers, regulation, contract, consumer, access to justice
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