My favorite example of a writer like this is Stallman. Whether I agree with or disagree with any of his particular essays, they are always immensely readable. His arguments are completely unobfuscated and easy to follow. His work is worth reading if just to see how complicated legal and technical ideas and arguments can be beautifully decomposed.
Now, this is certainly not the only way to be a great writer. Perhaps it is not even a way to be the greatest of writers. But it is very effective and, importantly, relatively subtle. It is so subtle, in fact, that I think many people do not recognize how much especial skill it takes and good it actually is.
This sort of skill is particularly important for something like the law which is inherently complex and tends to attract people very comfortable with such complexity. Exposing it simply is crucial. More relevantly for HN, this sort of skill is at least as useful for technical topics. It's certainly something everybody here should think about when writing.
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I personally think Scalia's opinions are amazing, notwithstanding his habit of writing very long inverted sentences. I'm not sure if they're the most approachable for lay people, but they are incisively clear. "Hand-wavey" is not a term that ever comes to mind reading Scalia's opinions (except when talking about drugs or gays).
Richard Posner (7th Circuit) and Alex Kozinzki (9th Circuit) are also known for their writing. I like this one from Kozinksi: http://notabug.com/kozinski/kremen_v_netsol
I'd say his opinions become "tortured" when he is forced to address issues that he and the US constitution are at odds over. He practically refuses to admit the 14th Amd even exists. Have you read his views on the 9th Amd? He thinks it only protects the right of the states to recognize some sort of second-class "lesser" rights. His opinions may be thoroughly reasoned, but by god they're certainly not always rational.
We're waiting on a Supreme Court ruling that could have significant impact on first-sale that hinges on two plausible interpretations of the phrase "made lawfully under this title."
"First sale" itself is made up of two simple understandable words, but could mean be any one of the sales that occur in the creation of a work. The words themselves contain nothing that indicate whether it refers to the first sale of a book to a publisher, a publisher to a store, a store to a person or a person to another person.
"Assault" is a common word in every day usage, but in law it means something very specific, it doesn't even require physical contact.
Even if someone succeeds in writing a law that makes perfect sense to laypeople, it's possible that the apparent meaning will change or be lost in the future. For an example of this, wade just ankle-deep into discussions of the meaning of the Second Amendment of the US Constitution.
Phrases like "sine qua non" are pretty inaccessible, in that you might need to look them up. However, being from a dead language, they may be less likely to morph in meaning over time.
 Found in a Supreme Court opinion on copyright - Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc. - 499 U.S. 340 (1991) http://supreme.justia.com/cases/federal/us/499/340/case.html
Not only that but Bowman v. Monsanto is another first sale case and it has to do with whether the first sale of a soybean seed reaches the sale of the soybean's offspring by sexual reproduction.
I was recently struck by how Google's terms of service are written in plain English legal writing:
Compare a contract term like this, often referred to as a severability clause (from Google's ToS):
"If it turns out that a particular term is not enforceable, this will not affect any other terms."
With this, in traditional legalese:
"If any term or other provision of this Agreement is determined to be invalid, illegal or incapable of being enforced by any rule or law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party."
Both have the exact same effect.
I'm fairly sure it has something to do with making the text more appealing to clients -- if they hire you to write a contract and then give them a "normal" document they feel they could have written themselves (whether or not that's true), they'll be upset.
You create lists to create concrete boundaries for sets of things, and to leverage accepted rules for how to interpret lists in legal documents. E.g. say you are covering an insurance client against "disasters." What does that mean? The English word "disaster" can encompass everything from Fukushima to cancer to your kid failing out of school. Instead, you might write: "we will cover floods, hurricanes, forest fires, and other disasters." This is technically redundant, because the enumerated items are subset of "disasters." However, under the accepted rules of legal interpretation, the enumerated items will cabin the more general concept of "disaster." You have a fighting chance in court of defending not covering someone's getting cancer by relying on the argument: "is cancer like a flood, hurricane, or forest fire?"
Additional wordiness is often the result of the need to be precise (or copy & pasting from precedent, or being in a hurry). Try describing the operation of some C code in English in very precise terms. You'll find that ordinary English leaves implicit a lot of "who, what, where, when" type details, and that making them explicit creates a lot of wordiness.
Source code is a rather off analogy to use here for that reason: judges can read and understand plain english but compilers can't understand comments.
There's probably a lot to be gained by having the dual model approach that (eg) Creative Commons uses, where they have a very human-understandable summary and some clickable (albeit relatively simple) legal writing underneath. There's no reason OSHA, banks, and Congress couldn't do that too.
OK, let's say someone relies on the human-understandable summary and does something the legal writing forbids.
Their understanding of the human-readable part is defensible, at least, but it obviously is not what the person who wrote it intended that part to mean; the legal writing, on the other hand, is constructed in a way that the courts have had a lot of experience interpreting, so it is, at least to a lawyer or a judge, perfectly clear and well-written.
Obviously, if the plain language part and the legal language part are deliberately at odds, that's likely fraudulent and the court should construe the contract to the detriment of whoever wrote it. (This actually happens in real life to some extent.) But in this case, the difference in meaning is arguable at best and certainly not intentional. Which part did the person agree to? Which part should be enforced? Can't you just feel the judge's blood pressure rising?
So, yes, there is a reason OSHA, banks, and Congress can't do that.
It is expressible in plain language. The scenario I brought up states that the person responsible for expressing it in plain language did so in a way that might have left a loophole or otherwise failed to capture all of the subtleties the legal language version expresses.
When I lived in NYC I heard from a lawyer there that a lot of landlords don't like to rent to lawyers, because lawyers know what parts of their rental contract don't actually have legal force. This suggests that there are a lot of contracts out there signed by a lot of renters where the landlord didn't intend to give you the rights that you have under the law. But you still have those rights, and those are still valid contracts.
But in general, yes, UCC and other state law statutes often supply default terms.
In which case Google's severability clause is legalese by omission ;-)
It is entirely possible to write plain and understandable english that is legally unambiguous. As someone mentioned above, there has been a huge movement towards this in law schools. It has had some impact, but it's still going to be a long time.
That said, even some of the older folks in the legal field hate legalese. When I clerked for an appeals court judge, we used to do two things:
1. Read every single opinion out loud to all the clerks in order to make sure it sounded sane and was understandable to the other folks at the table, who had no idea what the case was about.
2. Remove all unnecessary words and anachronisms. The judge used to pull out his copy of strunk and white and beat us over the head with it.
Legalese has all manner of special constructs that have to be learned to understand.
> As it happens, that horrid prose serves its aims perfectly. Regulations of this nature have one clear purpose, and that is to answer, before the fact, any imaginable questions that might be asked in a court of law.
There are some problems with The Underground Grammarian, but it's entertaining if you're in the right mood.
As an amateur linguist, I would say that legalese (like Homeric Greek) is a specialized dialect which is both hyperdefined and formulaic (except that lawyers call formulas "terms of art").
As a piece of interesting trivia, Calvert Watkins suggests that formulas of Roman legalese derive from pre-Roman liturgical, magical, and mythological poetics so there probably is a connection between the formulaic dialect of Homer's epics and the legalese of today to the extent that it is related to Roman legalese.
Or the drafter may not be a very good writer! It's easy to fall back on legalese instead of taking the time to make something concise (see the article/video).
Right; there's some cargo culting in legal writing. Until a particular form of words has been tested in court, no-one really knows whether it will stand up.
If there's an untested standard form, most people won't want to experiment with a variation because if their variation happens to be the one that fails, there's a possibility of a negligence suit for not using the standard form.
If there's a tested standard form, even fewer people will want to experiment, for the same reason.
Some? In my experience, it rises to the level of "massive amounts of".
After reading Orwell's "Collection of Essays" I've been doing the same. In his essay, "Politics and the English Language." Orwell boils down good writing to:
1. “Never use a metaphor, simile or other figure of speech which you are used to seeing in print.”
2. “Never use a long word where a short one will do.”
3. “If it is possible to cut a word out, always cut it out.”
4. “Never use the passive where you can use the active.”
5. “Never use a foreign phrase, a scientific word or a jargon word if you can think of an everyday English equivalent.”
6. “Break any of these rules sooner than say anything outright barbarous.” (170)
edit: removed words
An entire collection of Martin Amis essays and book reviews is called 'The War Against Cliché' (your #1 above) because he too prioritizes resisting the all-too-easy tendency to rely on tired worn-out phrases. I have noticed that tabloid papers lean on this style of language more than traditional broadsheets - for me it is this (deliberate) literary lazy folksiness that sets them apart rather than mere content. Note Amis puts an elitist accent on cliché breaking Orwell's #5 but I like it because it reminds us that it is cleeshay rather than cleesh and I am not afraid of foreign tongues :)
Philosophy is another area (besides law) rife with jargon and, if I may say, prolixity. It is an area here care is rarely taken to express oneself plainly and simply. Schopenhauer has an essay called simply enough 'On Style' which starts out "Style is the physiognomy of the mind, and a safer index to character than the face.". I use this as a guiding light. Some philosophers are too important to avoid regardless of style (Hegel, Kant, Luhmann) but I am always and everywhere suspicious of any who are too verbose and needlessly opaque (Quine springs to mind). This is why I love Nietzsche so much, whatever you may say about his ideas - my God - his turn of phrase is sublime.
On the other hand thinkers like Derrida are obscure and practically require an understanding of Ancient Greek to say anything "authoritative". I think it leads to all sorts of hand-wavy interpretations.
It's probably a subtle joke on Orwell's part.
--William Strunk Jr., Elements of Style
(Concision prevents me from saying more)
Today I was discussing a reminder email ("You have an appointment coming up!") from my dentist - it had pretty pictures but lacked the date and time of the oppointment.
We've all seen web sites with flashy graphics but no contact info and/or how to buy what they are selling.
It's as if the text itself is intended to obscure the meaning, rather than explain it.
Now imagine the task is "defining the lives of 300 million people a significant fraction of which is actively engaged in attempting to find any loop hole" and think how many lines THAT would take.
1) They regulate complex situations;
2) They reflect complex compromises between factions;
3) They are effectively diffs against existing law, with the excess verbiage that entails.
I'd bet the diff of the VM subsystem of Windows between 7 and 8 would be very complex and inscrutable to a non-programmer too.
Often, I find it extremely hard to distill a technical concept down to the basic takeaway. It's a skill I've been flexing for years now, and yet I still feel the need to drastically simplify my explanations. It often doesn't seem fair. To bear the burden of consolidating an ocean of understanding into a few word summary your stakeholder can grok sometimes seems impossible!
Nevertheless, I think Clarence Thomas sets an awesome example which really puts it in perspective for me. As people who are trying to deliver results to our stakeholders, we owe it them to explain what we're doing for them in as plain and simple language as we can muster.*
*note: I totally acknowledge that this is a difficult skill which can take a fair amount of practice. Not saying I am personally perfect or even great at this skill. I'm just saying it's an important one to work on!
The problem as I see it is that "plain English" doesn't really exist in any objective sense. We all speak different versions of the language depending on who we are talking to.
Indeed if you think about it, a lot of computing and programming terms are quite readily understandable to an imaginative layperson. Words like "stack" or "pipe" are pretty clear metaphors for existing every-day concepts and in fact when I introduce concepts like "heap" or "stack" I always use everyday example, like a stack of books....
> Nevertheless, I think Clarence Thomas sets an awesome example which really puts it in perspective for me. As people who are trying to deliver results to our stakeholders, we owe it them to explain what we're doing for them in as plain and simple language as we can muster.*
Thomas is one of those justices who, whatever you think of his preferred views on jurisprudence, is both an impressive writer and an impressive speaker and someone I am happy to see on the court even when I disagree with him.
However, the Supreme Court is sui generis; basically almost all other legal opinions are written quickly and opaquely. There's little incentive for judges to write beautifully if only a handful of people are going to care about the decision--especially when those people have lawyers available to interpret the opinion for them.
In the story Charlotte saves the pig's life by writing the words "Some Pig" in her web. I've always thought that sentence exemplified Strunk and White's suggestions. It's just two simple and short words.
Am I wrong in this assumption?
I often find myself writing things that are too verbose in fear that I won't be interpreted as intended. I recognize that this is an inherent challenge in writing, but is there any intermediate solution? Can there not be a "plain language" version of a document? Or why can't legal documents be primarily written in plain language, with notes (like footnotes) for legal clarification?
I had been for a very long time, a believer that jargon simplifies communication because a lot of information is encapsulated in jargon. However I have come to believe, recently, that I could not have been more wrong.
Any idea how to simplify my communications? I'm starting to blog a bit more again, and I would really like to reach a wider audience on economic thinking
on a whim.
...and was quite impressed by it, and by him. I don't agree with all of his political or legal stances, but I had no doubt after reading it that he has a first class mind, and thinks deeply and clearly about things
I realise he mentions that this clarity comes from heavy editing, but he also seems to have a very clear and organised way of thinking (perhaps from all those years of sifting through law...).
My favourite writer has always been Douglas Adams because he managed to combine effortlessly clear prose with comedy. I highly recommend "The Salmon of Doubt", a posthumously published collection of his short essays/articles.
My favourite is about Frank the electrician, in which rants in tandem about the his tangled mess of computer wires and his electrician, who has a delightful habit of destroying newly plastered walls and cutting the power off at inopportune moments.
As an example of stream of conciousness comedy writing (with an underlying, clear, message) it is peerless.
Can't the government afford to put this on the web in an easily usable form? Perhaps annotated with at least their own interpretation of the meaning. Don't they need this to function?
Could there be some sort of open-source effort by lawyers to solve this problem?
That 200:1 value to cost ratio is good advice.
You're going to make a killing if the customer perceived value to price ratio is 200:1, and if the retail price to cost ratio is also 200:1.
For those interested in taking this challenge, here's a list of over 6000 monosyllabic English words. This is a surprisingly difficult exercise! Unfortunately, the writing style is very staccato.
I can't say the same for the majority of web site usage and software licenses I've read, most of which will require tremendous effort for any court to interpret should there be a dispute.
I am a fan of Thomas' dissent in Kelo v New London. (http://www.law.cornell.edu/supct/pdf/04-108P.ZD1)
I did not have time to write a shorter comment.
Far too many of us ramble, we do not take the time to focus our thoughts. This results in replies that just go on and on repeating the same thought in as many ways.
While I like Clarence Thomas, having read his books and some about him, I do not always like his decisions but at least I have a chance at understanding them
From wikipedia: "A segue (i/ˈsɛɡweɪ/) is a smooth transition from one topic or section to the next.
The term is derived from Italian segue, "it follows"; the pronunciation in English differs from the original Italian pronunciation."
Oh, the irony.
Or you refer to the word "segue" itself? Justice Thomas is claiming simplicity; The Atlantic author is not.
Not arguing about Justice Thomas, but the Atlantic author writing about that subject, then showing no empathy with Justice's POV? I found that a bit ironic.
Thank you very much for sharing it.