Many contract professors find the cases describing modern consumer contracts to be particularly challenging. The adhesive, omnipresent, nature of such deals belies the idea of the meeting of the minds, and the nation’s politics make reform seem out of reach. We all know that there are too many consumer contracts, and that the terms of such deals get worse every year. But what’s to be done about it? The fervor about consumer contracts even reached into the august halls of the American Law Institute, whose Restatement of Consumer Contracts faced substantial opposition last year when it embraced courts’ apparent tendency to de-emphasize the role of conspicuous notice in formation. You would be well within your rights to think that realities of consumer contracts make the rest of the semester feel like a bait-and-switch.
But take heart and read Michael Blasie’s The Rise of Plain Language Laws. Blasie shows that the last 40 years has wrought a quiet revolution in consumer contracting – one that is essentially never taught in our classrooms or remarked on in mainstream contracts scholarship. Legislatures have apparently created strong substantive mandates for what can be in consumer contracts, and how they can look, in essentially every state. They’ve done so in a relatively non-partisan way, over only modest opposition. It’s a shocking story.
Plain Language Laws helpfully sets out the intellectual foundations of the plain language movement, from David Mellinkoff’s 1963 The Language of the Law, to Bernie Black’s 1981 (!) law student note on the utility of plain language laws in regulating consumer contracts. The claim is that plain language deals, statutes and opinions are easier to read and more democratically accessible. Though the movement comes in various shapes and sizes, it has a common set of commitments:
Plain language recommends presenting information in a logical order; leading with the most important information; and deploying headers, topic sentences, and transitions. Plain language emphasizes brevity: short sentences, short paragraphs, and short sections. Plain language prefers using present tense verbs and active voice. At the same time, writing with simple words and phrases, while minimizing jargon, abbreviations, and definitions exemplify plain language.
Given these foundations, the battle against legal jargon has been on a generations-long upswing, both in law school pedagogy and in regulatory interest. Blasie illustrates that fact through the “first empirical nationwide survey of plain language laws.” His work reveals a whopping 776 plain language laws, covering the gamut of industries, statutes, regulations and constitutions spread across every state and the Federal Government to boot. What’s revealed by this survey may be unsurprising for scholars of public law, for whom the regulation of statutory proscriptions perhaps anodyne. But for contract scholars, the idea that so much of contract practice is already governed by statute was quite surprising.
The heart of Blasie’s article is an empirical survey of plain language laws (gathered through a laborious and comprehensive search). He found 14 distinct categories where such laws covered. The most – 509 of 776, or nearly 60% were consumer protection (laws governing consumer contracts), while the next largest category was laws governing executive function 12(2), judicial function (6%), housing (5%) and the like. That is, plain language laws are having their largest effect in the rules governing consumer contracts. Of these the plurality govern insurance contracts (42%), some sale of good transactions (16%). But some states—like Pennsylvania—have plain language laws that govern across industries, for all contracts worth less than a sum ($50,000 in Pennsylvania) a year.
What do such laws do? Blasie offers a wide variety of answers to that question, from substantive mandates about writing style and format, to certification regimes, to particular requirements like Connecticut, which requires consumer contracts to have an “ average number of words per sentence is less than 22; [with] no sentence [exceeding] 50 words; the average number of words per paragraph [to be] less than 75; … no paragraph [exceeding] 150 words; and the average number of syllables per word is less than 1.55.” Even in states with less precise requirements, most now states require consumer contracts to follow plain language prescriptions, or face fines and penalties.
Given this broad ranging regulatory movement, you might wonder: has the plain language movement for consumer contracts made the world better? Blasie concedes that we simply do not know:
So far, much of the research has been case studies into documents written for particular readers in specific contexts . . . no research has shown mass market benefits across all documents, industries, and contexts. Success in billing statements and agency letters does not necessarily translate to the same benefits and costs with quintessential, lengthy, complex legal documents like contracts.
This provides an opportunity for other scholars who can use Blasie’s categorization to ask necessary questions. First, do such laws actually change contracts: are consumers in states with strong plain language rules seeing contracts that look differently than those without, or are firms simply ignoring the regulatory overhang as much as contracts professors do? Second, are plain language contract terms more often read, understood, and therefore priced? I would be quite (pleasantly) surprised if that were the case. And, if not, who are plain language consumer contract laws actually benefiting? One possibility is that by increasing the price of contracting, plain language laws perversely reduce the supply of novel goods and services for consumers by creating artificial barriers to entry that help incumbents. Another is that the benefits from such laws are reaped by lawyers. Either way, it’s important to think carefully about this movement, which has swept opposition before it.
Blasie’s article, by giving us the tools to ask and answer a novel set of questions about consumer contracting, adds enormous value to the field. I recommend it to you.