THE PLAIN ENGLISH MOVEMENT
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charge here is theft of frozen chickens. Are you the defendant?
DEFENDANT: No, sir, I'm the guy who stole the chickens.
(Thanks to Robert Patterson, esq., of Santa Barbara)
The premise behind the plain English
is that legal documents ought to be plainer--and more
the average person. It's probably fair to say that the modern
began in the 1970s. But people have objected to the obscurity of
language for many centuries.
The first major struggle in England was to get legal
into English, the language of the people, rather than French or
The problem largely arose when William, Duke of Normandy, defeated the
king Harold at the Battle of Hastings in 1066 and became king of
William and his followers spoke a type of French. And their legal
were mainly in Latin, and later also in French. English, in
was the lower-class language of a subjugated people.
The vast majority of the English people had always
English speakers. Nor surprisingly, by 1422, the new king, Henry
was a native English speaker. Yet French did not die out among
lawyers. Au contraire, it thrived. Unhappiness about this
of affairs led to what might be considered the first plain English law:
Statute of Pleading, enacted in
The law, written in French, recited that French was much unknown in the
it therefore required that all pleas be "pleaded, shewed, defended,
debated, and judged in the English Tongue."
An even sterner critic was Jeremy Bentham, who
the language of lawyers as "excrementitious matter" and "literary
Bentham advocated codification, in which all of the law would be
divided into codes on various topics. Individual parts of each
should be small enough for people to remember, and written clearly
for citizens to know the "exact idea of the will of the
Bentham argued that plain legal language is essential to proper
"Until, therefore, the nomenclature and language of law shall be
the great end of good government cannot be fully attained."
At about the same time, the newly independent
states were also engaged in trying to achieve the great end of good
Some of the founding fathers were well aware of the problems with legal
John Adams criticized English legal language and the "useless words" in
colonial charters. He hoped that "common sense in common
would become fashionable. Likewise, Thomas Jefferson
the traditional style of statutes,
which from their verbosity,
their endless tautologies, their
involutions of case within case, and parenthesis within parenthesis,
their multiplied efforts at certainty by saids and aforesaids, by ors
by ands, to make them more plain, do really render them more perplexed
incomprehensible, not only to common readers, but to lawyers
Unfortunately, the revolutionary fervor
of the early Americans did not extend
to overthrowing the language of the law. They ultimately imitated
ponderous style of his Majesty's statutes, if not their substance.
A modern plain English movement did not really arise
the 1970s. David Mellinkoff's book, The Language of the Law,
pointed out the many absurdities of traditional legalese.
a more practical level, Richard Wydick's Plain English for Lawyers
has been widely used to teach law students the art of legal
In fact, plain English principles have been incorporated into the
curriculum of most law schools.
The crusade to make legal language less convoluted
more accessible to average citizens has also resonated outside the
In the United States, some of the earliest efforts to improve
language directed at consumers were initiated by the Federal
beginning rather modestly in the 1940s. In 1978 President Carter
an executive order that required that Federal regulations be "as simple
clear as possible." Federal law now requires clear, conspicuous,
or understandable language in many types of consumer transactions,
the Truth in Lending Act, the Fair Credit Reporting Act, and the
Egged on by the consumer movement, the states also
New York enacted America's first general plain language law in
and several states have followed. Most states now require
language in specific transactions, especially insurance policies.
here for a sample of state
After slowing during much of the 1980s, the movement
recently picked up steam. Some states are in the process of
their jury instructions more understandable, or have recently done
The Securities and Exchange Commission has begun to require that the
and certain other portions of prospectuses be in ordinary
And the Clinton administration mandated in 1998 that federal
be written in plainer prose; in fact, it was part of their "reinventing
Statutory drafters have not remained oblivious to
developments. American legislative drafting manuals now advocate
use of plain language principles. One such manual
avoiding elegant variation, as well as legalistic terms such as
said, aforesaid, and to wit. It also favors the
voice over the passive. These are, of course, standard
for clear writing.
The movement has also taken root in
countries outside of the United States. At about the time that
released its promissory note, the Australian Sentry Life Insurance
responding to a survey of its customers, produced a plain language
policy. The United Kingdom has the Plain English Campaign,
by a Liverpool woman who was fed up with unintelligible government
She took hundreds of the offending documents, proceeded to Parliament
and publicly shredded the lot. Her Majesty's government seems to
been sufficiently embarrassed; it soon began systematic revision of its
In addition, in 1999 the English court system implemented new
of civil procedure. They received a fair amount of press
because they had abolishes some time-honored legal terms for modern
A subpoena is now a witness summons, an in
hearing is now a private hearing, and a writ is now a claim
form. Even the venerable term plaintiff has been
Anyone who pages through
of statutes will realize that we still have a long way to go. A
is not something that the average person can readily understand.
fact, requiring that all statutes be understandable to the lay public
almost surely an unrealistic goal. As the world around us becomes
more complex, statutes inevitably are becoming longer, denser, and more
Arguably, many statutes--such as those relating to bankruptcy, civil
and evidence, corporations, public utilities, the structure of
and the military--are not directed to the general public at all, but
rather addressed to a subcommunity of experts. Few of these
subjects lend themselves to ready explanation to a lay audience.
often ordinary people may not care all that much, anyway.
Yet there are statutory areas that are of intense
to the public. Examples include the criminal law, as well as laws
to the family, divorce, community property, inheritance, employment,
rights, landlord-tenant relations, and consumer protection.
ordinary citizens ought to be able to understand the rights conferred
obligations imposed by such statutes. At the same time, it may be
the law cannot or should not be stated too plainly. Lawyers often
that important nuances would be lost if the law were stated in plain
In addition, legal language facilitates communication within the
it might be very time-consuming the try to explain the entire law in
One solution has been proposed by Paul H. Robinson,
D. Greene, and Natasha B. Goldstein, in an article entiteled
Codes Functional: A Code of Conduct and a Code of Adjudication , 86
Crim. L. & Criminology 304 (1996). They note that most
statutes have a dual audience: members of the public and
adjudicators. They suggest that adjudicators can tolerate the
complexity that is inherent in most current criminal codes, but that
members of the public have a right to a criminal code that they can
understand. In essence, there ought to be two criminal codes, one
for the public and one for judges. The authors then proceed to
offer a draft code of conduct that explains to the public, in plain
English, what they can and cannot do, as well as a draft code of
adjudication in legalese for judges and other professionals.
The interesting thing about this proposal is that it
quite explicitly that legal language and ordinary English are, in a
two different languages. It suggests that perhaps the job of
who are essentially bilingual, is to translate legal language into
speech. At the same time, I am somewhat reluctant to embrace the
view, because it largely removes the pressure on the system to speak
clearly. A consumer about to sign a lease or to purchase a refrigerator
credit should not have to pay a lawyer to explain what the legalese in
relevant documents means.
I suppose that in the end, there are certain
of legal documents--particularly those that affect the rights and
of ordinary consumers--that should stated as plainly as possible.
the other hand, it is far less of a problem if agreements between large
corporations which are all represented by lawyers are impenetrable to
average consumer, although even these agreements can often be drafted
more clearly than they currently are.
It is more difficult to decide what to do with
Realistically, I doubt that we will be seeing a plain English
Revenue Code in our lifetimes. On the other hand, it seems to me
it should not be that terribly difficult to improve the language of the
codes. Several American states have managed to craft relatively
jury instructions, which explain the criminal law to jurors in ordinary
If we cannot express the criminal law in ordinary English, how
we expect ordinary citizens to obey the law?
Overall, the language of of the law is definitely
than it was twenty or thirty years ago. But there remains much
Kenneth A. Adams, Legal Usage in Drafting Corporate Agreements (2001)
Asprey, Michèle M. Plain Language for Lawyers. 2d ed.
N.S.W.: The Federation Press, 1996.
Benson, Robert W. "The End of Legalese: The Game Is Over." 13 N.Y.U.
L. & Soc. Change 519 (1985).
Davis, Jeffrey. "Protecting Consumers from Overdisclosure and
An Empirical Look at the Simplification of Consumer-Credit Contracts."
Va. L. Rev. 841 (1977).
Dickerson, Reed. The Fundamentals of Legal Drafting. 2d ed. Boston:
Brown and Co., 1986.
Hill, Claire A. Why Contracts Are Written in "Legalese" , 77
L. Rev. 59 (2001)
Felker, Daniel B., et al., Guidelines for Document Designers.
D.C.: American Institutes for Research, 1981.
Felsenfeld, Carl, and Alan Siegel. Writing Contracts in Plain English.
Paul: West Publishing Co., 1981.
Flesch, Rudolf. How to Write Plain English: A Book for Lawyers and
New York: Harper and Row, 1979.
Gopen, George D. "Let the Buyer in the Ordinary Course of Business
Suggestions for Revising the Prose of the Uniform Commercial Code." 54
Chi. L. Rev. 1178 (1987).
Kimble, Joseph. "Plain English: A Charter for Clear Writing." 9 Cooley
Rev. 1 (1992).
Martineau, Robert J. Drafting Legislation and Rules in Plain English.
Paul, Minn.: West Publishing Co., 1991.
Mellinkoff, David. "How to Make Contracts Illegible." 5 Stan. L. Rev.
Plain English: Principles and Practice (edited by Erwin R. Steinberg,
Steinberg, Edwin R. Plain English: Principles and Practice. Detroit:
State University Press, 1991.
Wilson, Carol Ann. Plain Language Pleadings. Upper Saddle River, N.J.:
Wydick, Richard C. Plain English for Lawyers. 3d ed. Durham, N.C.:
Academic Press, 1994.
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