Conveying the meaning of laws to human beings is hard enough when you can use your own words. But sometimes the law itself dictates the exact language — including fonts, capitalization, boldface, and more — that you must use.
When lawmakers dictate exact language like this, they may actually be discouraging people from reading that language.
The Law Looks Terrible
Let’s take the all-too-common requirement that some piece of the law be displayed somewhere in ALL CAPS. This provision in a life insurance–related law in Minnesota requires insurers to provide a certain disclosure immediately above the signature line with the word WARNING in 14-point boldface capital letters. The remainder of the text must be in 10-point boldface capital letters.
[A]ll-caps text decreases your reading speed anywhere from 13 to 20%.
Here is what the disclaimer ends up looking like:
WARNING: IF YOU BECOME DISABLED AS DEFINED IN THE POLICY/CERTIFICATE, THIS DISABILITY INSURANCE POLICY/CERTIFICATE MAY NOT COVER YOUR ENTIRE INDEBTEDNESS. IF YOU BECOME DISABLED AT A POINT WHERE THE NUMBER OF MONTHLY INSTALLMENT PAYMENTS REMAINING EXCEEDS THE PERIOD OF COVERAGE BEING PROVIDED BY THIS POLICY/CERTIFICATE, THE BENEFITS AVAILABLE WILL BE LESS THAN THE AMOUNT NECESSARY TO PAY OFF YOUR LOAN. IF YOU WANT COVERAGE FOR THE FULL AMOUNT OF YOUR INDEBTEDNESS OR HAVE ANY QUESTIONS ABOUT THE EXTENT OR NATURE OF YOUR COVERAGE, YOU SHOULD DISCUSS THEM WITH YOUR AGENT AND/OR ENROLLER BEFORE SUBMITTING YOUR APPLICATION.
What happened to you when you started reading that? When I try, my brain starts “humming” around the second line or so, which drowns out any ability I have to read the thing. The hum stops only when I get to the end of the giant glob of text.
I am not alone in this reaction. Typographic studies reinforce the fact that all-caps text decreases your reading speed anywhere from 13 to 20%. Contracts, of course, are not fine literature. Rather than slow down and read carefully, many will just skim without comprehension or skip the all-caps blocks of text entirely.
Web readability discussions also help illuminate why our brain fails to comprehend the wall of ALL-CAPS text:
When we read, we don’t actually look at every letter in a sentence, but actually the shapes of the words. When text is in All Caps, the height of every letter is identical making every word an even rectangular shape, forcing us to read letter-by-letter, reducing our reading speed. Take a look at the shapes made by the two words below.
Similarly, typographer Matthew Butterick points out that putting blocks of text in boldface does not generally have the intended effect of getting the reader to focus harder on it. If everything is emphasized, says Butterick, nothing is emphasized (and much may be ignored).
So both Butterick and even the government think using ALL CAPS or bold text for more than a few words actually slows your comprehension. This does not end up being a problem just for lawyers and briefs. That horrible disclaimer above is required — in exactly that format — in contracts a layperson is supposed to read, comprehend, and sign.
For a real glimpse at the underbelly of legal language gone horribly awry, take a look at franchise agreements. If you apply to be a franchisee for, say, Subway, you will be faced with a thicket of legalese that differs depending on what state you’re in. Here’s an example of the language and format required in Hawaii:
THESE FRANCHISES WILL BE/HAVE BEEN FILED UNDER THE FRANCHISE INVESTMENT LAW OF THE STATE OF HAWAII. FILING DOES NOT CONSTITUTE APPROVAL, RECOMMENDATION OR ENDORSEMENT BY THE DIRECTOR OF COMMERCE AND CONSUMER AFFAIRS OR A FINDING BY THE DIRECTOR OF COMMERCE AND CONSUMER AFFAIRS THAT THE INFORMATION PROVIDED HEREIN IS TRUE, COMPLETE AND NOT MISLEADING.
THE FRANCHISE INVESTMENT LAW MAKES IT UNLAWFUL TO OFFER OR SELL ANY FRANCHISE IN THIS STATE WITHOUT FIRST PROVIDING TO THE PROSPECTIVE FRANCHISEE, OR SUBFRANCHISOR, AT LEAST SEVEN DAYS PRIOR TO THE EXECUTION BY THE PROSPECTIVE FRANCHISEE OF ANY BINDING FRANCHISE OR OTHER AGREEMENT, OR AT LEAST SEVEN DAYS PRIOR TO THE PAYMENT OF ANY CONSIDERATION BY THE FRANCHISEE, OR SUBFRANCHISOR, WHICHEVER OCCURS FIRST, A COPY OF THE OFFERING CIRCULAR, TOGETHER WITH A COPY OF ALL PROPOSED AGREEMENTS RELATING TO THE SALE OF THE FRANCHISE.
THIS OFFERING CIRCULAR CONTAINS A SUMMARY ONLY OF CERTAIN MATERIAL PROVISIONS OF THE FRANCHISE AGREEMENT. THE CONTRACT OR AGREEMENT SHOULD BE REFERRED TO FOR A STATEMENT OF ALL RIGHTS, CONDITIONS, RESTRICTIONS AND OBLIGATIONS OF BOTH THE FRANCHISOR AND THE FRANCHISEE.
That is a veritable wall of words to say four simple things:
- Just filing the franchise agreement doesn’t mean Hawaii has approved it in any way.
- Just filing the franchise agreement doesn’t mean the information in the filing is true.
- The franchisee has to have a copy of the offering circular and all other proposed agreements at least seven days before signing the franchise agreement or paying any money.
- This document is just a summary and you should read the contract.
Worse, sometimes the contract contains an all-in-one state law attachment that includes laws of states you are not actually in.
There is also evidence that we comprehend less when we shift to the screen.
To make things even more difficult, much key information shows up on a computer screen — legalese and all. That makes perfect sense, but reading on a screen is slower — about 25% slower — than reading in paper. There is also evidence that we comprehend less when we shift to the screen. It turns out that we often “map” where we see things on the printed page, and we lose that ability when reading on a screen. That can lead to reduced comprehension. We are also less likely to re-read difficult sections when we read on a screen. In short, we skim or skip when the text get difficult (probably unconsciously, to get back up to our on-paper speed) and that means we may not take the time to absorb key information.
Nowhere is this more true than in the land of software and website terms and conditions. Apple’s iTunes Terms and Conditions is one of the most legendary, clocking in around 56 pages, and almost no one reads it. The sheer length of everything that a company deems legally necessary to protect itself practically guarantees a consumer will not read or comprehend it. Indeed, three years ago, 7,500 unwitting shoppers who did not read some terms and conditions agreed to give a British gaming company their immortal souls:
By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised minions.
In an odd twist, though the laws themselves contain a great deal of superfluous and deliberately difficult language that gets codified into required documents, notices, and signs, the government itself has made great strides in creating easy-to-follow explanations of key laws and rights. There are highly-readable posters for key laws like OSHA and the Fair Labor Standards Act. Those posters are the very epitome of readability, and follow many of the principles laid out by web usability gurus like Jakob Nielsen. The federal government also maintains its own usability site with information on how to make websites easy to read and navigate.
If only the government took its own advice with the first iteration of healthcare.gov, which Nielsen points out has at least ten usability failures. That is an unfortunate stumble, but the government has actually been working hard to ensure, rather than obscure, understanding in some key areas.
A Defense of Bad Typography?
All of this bad writing raises an interesting question: can we ever get out from under a law because it is just too-terribly-written for us to understand? Can we have a cause of action based on, essentially, a void-for-vagueness argument that no one could rationally follow what the required language of the law actually meant?
Spoiler alert: the consumer almost always loses.
There have already been numerous lawsuits about the Byzantine language of contract terms and conditions. Spoiler alert: the consumer almost always loses.
Courts have even held that it does not matter if you do not click through and read the gazillion pages of conditions. Simply by being near them or performing certain actions like purchasing tickets will be enough for a court to presume you knew what you were getting into. These activities, though, are voluntary. You can decide not to download music from iTunes or buy tickets through Ticketmaster. (And really, don’t buy tickets through Ticketmaster if you can at all manage it anyway. Your pocketbook will thank you.)
You cannot, however, decide to draft your franchise contract and omit the terrible government-mandated language. As a lawyer, you would probably hesitate about even adding a section to that language that purported to explain it. Do you really want to be on the hook for saying you know what the government was trying to say? Do you want to end up in court arguing about which interpretation controls the contract — your explanation or the mandated language? Of course not.
Judges have found statutory language incomprehensible, however. On at least one occasion a judge declared that a longstanding finance-charge statute was unconstitutional because it was incomprehensible, even though the lender used the formula exactly as stated in the statute. In the end, this was just for show. The charge was ultimately reinstated and upheld by the same judge, but it’s useful to take a look at the language he took issue with.
(1) The finance charge in a retail installment sale shall not exceed the following rates:
Class 1. Any new or used motor vehicle designated by the manufacturer by a year model not earlier than the year in which the sale is made–eleven dollars ($11) per one hundred dollars ($100).
Class 2. Any new motor vehicle not in class 1 and any used motor vehicle designated by the manufacturer by a year model of one (1) or two (2) years prior to the year in which the sale is made–thirteen dollars *680 ($13) per one hundred dollars ($100).
Class 3. All other motor vehicles not in class 1 or 2–fifteen dollars ($15) per one hundred dollars ($100).
(2) Such finance charge shall be computed on the principal balance as determined under KRS section 190.100(2) on contracts payable in successive monthly payments substantially equal in amount extending for a period of one (1) year. On contracts providing for installment payments extending for a period less than or greater than one (1) year, the finance charge shall be computed proportionately.
(3) When a retail installment contract provides for unequal or irregular installment payments, the finance charge shall be at the effective rate provided in subsection (1) of this section, having due regard for the schedule of payment.
(4) The finance charge allowed by this section may be pre-computed by using an add-on method. Alternatively, the seller may, at his option, compute the finance charge on a simple interest basis, at a fixed or variable rate, but in such case the amount of finance charge that the seller may collect shall not exceed the amount that could be collected if the finance charge were precomputed.
So. Any clue what your finance charge would be on a 1997 Mazda? Me either. And the judge could not figure it out either. He ruled, sua sponte, that the statute was unconstitutional and void for vagueness because it was not written “in language that the people upon whom it is designed to operate or whom it affects can understand” because it essentially required a borrower to apply an algebraic formula to determine the legality of the rate he or she was being charged.
Ultimately, all this bad legislative writing should be adding up to a cautionary tale for legislators and the public. Somewhere there is a lawsuit lurking that will invalidate something critical, something large, something that voids language that affects a ton of people. Perhaps that is just what legislators need to have happen in order to stop including incomprehensible-but-required provisions in the law.
This was originally published on November 25, 2013. It was revised and republished on June 13, 2014.
Featured image: “Businessman studying a contract to sign closely with binoculars ” from Shutterstock.