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Regulating Plain Language

Authors: Michael A. Blasie;

Regulating Plain Language

Abstract

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 policyinfused decisions like choosing between the free market or regulation, allocating burdens and costs, and line drawing. As a result, this Article contends that 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 sits alongside expansive common law plain language requirements unilaterally injected by courts. Predictably, with so many decisions made by different decisionmakers, discrepancies pervade the national landscape. Such discrepancies create separations of powers tension and inefficiencies as drafters struggle to find and comply with the many different requirements from different lawmakers. This 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.

Country
United States
Related Organizations
Keywords

340, 330, Plain English, Access to Justice, Separation of Powers, Plain Language, Contract, Consumer, Law, Regulation

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
0
Average
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