Last year, I was vexed to have been characterized as a “proponent of tested contract language” by one of the leading advocates for the “plain language” movement in contracts drafting. I objected to my characterization because, while I have nothing against clear drafting, I don’t think complexity in language is the biggest problem that we face in contracts drafting, and I don’t think plain language does anything to alleviate the major problems. I reviewed the terms and conditions of the blog on which I was pilloried, and I noted that they amounted to ten clearly-worded pages, including links to the privacy policies of there “trusted partners.” The terms also provided that they could be changed with or without notice. I commented that if a reader got through all ten pages of the policy, they would likely conclude that “ease of understanding the contract’s language is not its biggest problem.”
Shawn Bayern (right) recently posted on JOTWELL his review of recent draft article by Yonathan Arbel (left), The Readability of Contracts: Big Data Analysis, 21 J. Empirical Legal Stud. __ (forthcoming, 2024), available on SSRN. You should read Shawn’s review and Yonathan’s work. But I am struck by his conclusion (at least in the draft), which Shawn cites in his review:
[T]he 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.
I am grateful to Yonathan for his work, elevating my priors, which were based on anecdote and hence might be dismissed as unwarranted, to the level of empirically-justified social scientific conclusions.
