Probably all law professors, even textualists, have experienced frustrations with overly rigid applications of supposed rules about language. For example, they’ve encountered editors who require that all contractions be spelled out or replace every instance of the word “like” with “such as” regardless of whether the substitution makes sense in context. Editing like that serves formalistic assumptions about the readability and professionalism of text and usually rests on various “myths” or outdated conceptions about language. Similarly, many professors, even formalists, have encountered and been frustrated by institutional “metrics” that reduce rich, substantive endeavors (like education) to rigid and formalistic abstractions (“learning outcomes” or test scores).
In a critique at least broadly sensitive to the same kinds of frustrations, Yonathan Arbel’s recent draft article, The Readability of Contracts: Big Data Analysis, studies the Plain Language Movement, which has influenced language in such documents as consumer contracts and medical disclosures. Professor Arbel’s legal focus in the draft is on consumer contracts, and his point is not, of course, that language in consumer contracts should be unreadable. Instead, it is a sharp critique—backed both with analytical insight and with significant data—against formalized metrics of notions like readability.
A significant portion of the article critiques such metrics, like the famous Flesch-Kincaid scores that depend on such simple features of language as syllables per word and words per sentence. In a world with large language models, those simple metrics appear almost quaint; they are not unlike early attempts at the computational processing of natural language that mostly went nowhere until machine-learning systems, backed with massive amounts of data, replaced them. Arbel’s critique is deeper, though; he takes aim at the “conceit” that “formal aspects of the text are reliable indicators of its ‘readability’” (P. 8), noting that readability scores aren’t even internally consistent and that they rest on arbitrary decisions. More directly relevant to scholars of contract law, he uses earlier studies to highlight a conceptual distinction between superficial perceptions of whether text is “understandable” and deeper measures of comprehension, like “behavioral responses to contract breach.” (P. 12.) In other words, while it ought to be clear that whether a form contract is readable probably has little to do with the prevalence of polysyllabic words in its text, metrics in the first place may be problematic because they miss the point, may be manipulated, and target the average reader rather than individuals who may need more protection.
Indeed, while Arbel hearteningly highlights some evidence that “average” Americans are more literate than people give them credit for, he is sensitive throughout the article to the notion that practical comprehension is “heterogeneous.” (P. 16.) Consumers, for example, grow up speaking different languages and are neurodiverse. Some are more vulnerable than others to deceptive practices that the law properly aims to restrict.
Having laid this groundwork, Arbel’s empirical study (of millions of consumer contracts and other documents) finds that consumer contracts aren’t—using formal metrics—harder to read than other common sources of text that people encounter (news websites, Wikipedia, and so on). In view of this conclusion, Arbel suggests that reforms that address problems in consumer contracting “may need to be more ambitious than mere copyediting of contractual text.” (P. 37.)
Apart from its specific strengths, Arbel’s draft is perhaps a helpful general reminder that—and these are my words rather than his—legal commentators may be paying far too much attention to language in the first place and not enough attention to substantive features of the situations that law aims to regulate. Like most other social activities, the law is not language. That is, it is not coextensive with the language that represents its decisions, which are only imperfectly captured by words. Obsession with language and its form has clouded many fields, including contract law, and diverted effort from potentially more important reforms.
Arbel’s point in the current draft is not to lay out those reforms in detail. But just like the general suggestion I’ve just made, the draft makes a specific suggestion to shift focus away from form and text in the context of consumer contracts (including most notions of “readability,” particularly formalized ones) and instead toward substance, individual differences among consumers (specifically with more attention to “vulnerable individuals”), and better understandings of the potential market failures associated with consumer contracts. It’s worth quoting Arbel in full on this general point:
For instance, the resources devoted to simplifying contract language could have been directed towards addressing more fundamental issues in consumer markets, such as improving market competition to give consumers more meaningful choices; addressing information asymmetries through targeted disclosure requirements; strengthening enforcement mechanisms against unfair or deceptive practices; or removing regulatory barriers to entry to markets. (P. 42.)
That language is plain enough.
