The U.S. Supreme Court Opinions

The Distant Language of Law

The U.S. Supreme Court: writing for the wrong audience.

A decision of the U.S. Supreme Court on January 17, 2006, brought great relief to the citizens of Oregon. The Court ruled that the U.S. Attorney General had overstepped his authority when striking down their assisted-suicide law. He could not use his drug-enforcement authority to decide what was good or bad medicine. That is the states' job.

There was big problem, however, with this decision. Only a tiny handful of the voters who created the law would ever read the court's historic opinion. Most of them learned of the decision second-hand from reports and commentaries in the media.

And no wonder. The court's opinion, written by Justice Kennedy, filled 28 pages with over 16,000 words, written at at a difficult, 17th-grade level. Even the 800-word Syllabus (summary) was written at the 17th-grade level.

Look at this paragraph from the opinion:

For Oregon residents to be eligible to request a prescription under ODWDA, they must receive a diagnosis from their attending physician that they have an incurable and irreversible disease that, within reasonable medical judgment, will cause death within six months. Attending physicians must also determine whether a patient has made a voluntary request, ensure a patient's choice is informed, and refer patients to counseling if they might be suffering from a psychological disorder or depression causing impaired judgment. A second "consulting" physician must examine the patient and the medical record and confirm the attending physician's conclusions.

The sentences are too long and too wordy. Why does the disease have to be both "incurable" and "irreversible?" Is not depression a psychological disorder? Is not every diagnosis by a doctor required to be a "reasonable medical judgment?"

It is common in legal writing to think that more words create greater precision. Just the opposite is true: precision comes with shorter and more pointed sentences. Legalistic padding like this not only turns off readers. It also creates more possibility for misunderstanding.

Look at this revision written at a democratic, 10th-grade level:

Oregon voters enacted ODWDA in 1994. To receive a drug under this law, Oregon residents must get a statement from their doctor that their disease is incurable and will cause death within six months. The doctor should also confirm that the patient:
  1. Has made the request voluntarily.
  2. Has made an informed choice.
  3. Does not have a mental problem causing poor judgment. If there is such a problem, the doctor must refer the patient to counseling.
Finally, a second doctor must examine the patient and the medical record to confirm the conclusions of the patient's doctor.

Here is another example taken from the court's opinion on the Oregon case, written at the 17th-grade level:

Executive actors often must interpret the enactments Congress has charged them with enforcing and implementing. The parties before us are in sharp disagreement both as to the degree of deference we must accord the Interpretive Rule's substantive conclusions and whether the Rule is authorized by the statutory text at all. Although balancing the necessary respect for an agency's knowledge, expertise, and constitutional office with the courts' role as interpreter of laws can be a delicate matter, familiar principles guide us. An administrative rule may receive substantial deference if it interprets the issuing agency's own ambiguous regulation.

Here is an 11th-grade version of the same text:

The parties before us disagree about the authority of the Interpretive Rule and whether the law authorizes the Rule at all. Agencies often must interpret the laws they are given to enforce. The courts also have to interpret the law. At the same time, they have to respect an agency's expertise and mandate. We rely on familiar principles such as this one: A rule gains much authority if it interprets the agency's own ambiguous regulation.

More people will read and understand the second version. It is better organized and keeps the main point in view: who gets to interpret the law, and what is the authority of that interpretation. Going from the 17th to the 11th grade level increases the size of the audience over 600 percent.

A Good Rule of Thumb

For over a hundred years, jurists and legal experts have been promoting the benefits of plain language in the law.

In 1968, Judge William Bablitch of the Wisconsin Supreme Court wrote: "A lawyer should write the brief at a level a 12th grader could understand. That's a good rule of thumb. It also aids the writer. Working hard to make a brief simple is extremely rewarding because it helps a lawyer to understand the issue. At the same time, it scores points with the court."

Judges and lawyers who write badly had teachers in school who wrote badly. Once they graduated, they learned more bad writing from their colleagues in law practice.

Bryan Garner is an attorney who has spent much of his life teaching plain language to attorneys and judges. He says they use legalese to maintain their social status. This makes it very difficult for them to write for members of another class. As professionals, however, judges and attorneys have no choice but to strive to communicate with their clients. Doing that takes training and method.

Using the Language of Democracy

Almost 50 per cent of American adults have difficulty understanding and using information in documents such as job applications, bus and train schedules, instructions for taking medicine or for operating machinery.

Every citizen has the right to understand the legal processes they are involved in. This includes the proceedings of the U.S. Supreme Court.

Democracy is achieved to the extent that citizens participate in it. Justice is achieved to the extent that citizens understand what is going on in their courts. The courts have to make sure citizens know what is going on. If this is not done, citizens are not truly informed and therefore cannot truly exercise their rights. This often results in a denial of justice. Rights not understood are rights denied.

The arguments behind the Supreme Court's Oregon opinion are not rocket science. There is no reason why the highest court in the land cannot speak in language that citizens can understand. The citizens of Oregon deserved better.

For more about plain language in the law, go to:

Lenguaje Ciudadano

Mexico's Plain-Spanish Web Site

AT the plain-language conference in Washington, D.C., in November, Salome Sierra Flores made a brief presentation about the efforts of the Mexican government to promote plain Spanish, lenguaje ciudadano, "citizens language."

Here is the federal government's plain-language Web site:

Plain-Spanish Help

There have been several readability formulas created for Spanish. Because Spanish has fewer one-syllable words, it requires some modification of the English formulas.

Here is the Fry Graph. Adapt it to Spanish by keeping the average number of sentences and subtracting 67 from the average syllable count before plotting it on the graph.

Here is the Flesch Reading Ease formula. To adapt it to Spanish, use this formula:

Reading Ease = 206.84 – 0.60P – 1.02F
P = number of syllables per 100 words
F = number of sentences per 100 words

National Assessment of Adult Literacy (NAAL)

11 Million Americans Cannot Read English

ON 15 December 2005, the National Center for Educational Statistics (NCES) released the results of the 2003 National Assessment of Adult Literacy (NAAL). The report compared the results of the 2003 study with the National Adult Literacy Survey (NALS) of 1992 and produced these findings:

What Does NAAL Measure?

The 2003 assessment was administered to a nationally representative sample of 19,714 adults ages 16 and older residing in households or prisons. The results represent the literacy skills of 222,400,000 American adults.

Like the 1992 survey, the 2003 NAAL survey tested prose, document, and quantitative (math) skills that adults need in order to function at work, at home, and in the community. Participants were asked to complete tasks like read a newspaper article, add numbers on a bank slip, identify a place on a map, and read the directions for taking medicine.

Unlike the earlier study, which used five levels of literacy proficiency, this one used four: Below Basic, Basic, Intermediate, and Proficient. The following chart compares the results of the two studies:

New Features

The 2003 NAAL featured two new tests that provide more details about adults with the poorest reading skills who cannot take the regular test: the Fluency Addition to NAAL (FAN) and the Adult Literacy Supplemental Assessment (ALSA). Other enhancements to NAAL include a more extensive background questionnaire and an evaluation of health literacy.

The NAAL survey avoided measuring adult literacy by grade levels. The main purpose was not to assess the different requirements of adult readers but rather the requirements of policy makers to supply funding for adult literacy programs.

For example, the Basic level corresponds with adults who are ready for GED preparation services, while the Below Basic level corresponds with adults who are in need of basic adult literacy services (including those learning English as a Second Language).

For more information, go to the NAAL Web site: http://nces.ed.gov/naal/

Download It Now—Free!
The Principles of Readability
By William H. DuBay

A brief introduction to the research on the readability formulas.
70 pages, bibliography

"Thanks for the report on readability. It is really a very impressive work. You have pulled together a lot of information that ranges over a long period of time. A genuine work of classic scholarship—of which there is way too little that comes my way."
—Thomas Sticht, Ph.D., International Consultant on Adult Literacy

"I finally got around to reading your article. It is very good, scholarly, and complete. Even though readability formulas have been around for years, I think that the biggest current problem is that they are not widely used. Much education of writers, editors, and general population is needed."
—Edward Fry, Ph.D. Reading Consultant.

"I just wanted to tell you how much I appreciated the level of scholarship in your amazing work, The Principles of Readability.
—Eldon McMurray, Ph.D. Candidate, Utah Valley State College.

Plain Language in the News

We don't talk, we communicate:

Get rid of the gobbledegook:
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Washington State Governor orders Plain Talk:

Politician wants plain-English weather forecasts:

Veteran Affairs to clarify acquisition rules:

When school tests fail:

New Fed chief speaks plainly:

Plain language for business:

Police jargon baffles councillors:

Translating political jargon: