Guest Blogger Milam Cain: “Plain-Language Movement” in Law Schools

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Nov 6, 2009 3 Comments ›› Site Administrator

Guest Blogger Milam Cain: “Plain-Language Movement” in Law Schools

The following post was authored by guest blogger Milam Cain, a law student at Thomas Goode Jones School of Law (http://www NULL.faulkner NULL.edu/admissions/jonesLaw NULL.asp) and an intern at the Foundation for Moral Law.

You may be familiar with the saying that goes, “I know that what I said is what you heard, but I’m not sure that what you heard is what I meant.”  That saying illustrates the ideas of miscommunication and misunderstanding.  A speaker or writer exercises modesty (http://1828 NULL.mshaffer NULL.com/d/search/word,modesty) when he accounts for the possibility of a misunderstanding and takes action to avoid it.

In a legal drafting class at the beginning of my current semester, I anticipated learning some of the finer points of juristic prose.  There, the professor described to us the plain-language movement and explained that we should not use obscure legal terminology.  I sat back in my chair as I thought that she was telling me to dumb-down my papers!  At first I was confused and, being the son of an English teacher, a little disappointed.  Why have I spent all this time learning all these technical rules of language and law?  Then I better understood what was really going on: an instruction in modesty.  I wish to highlight that principle and the act of what the preeminent English jurist, Sir William Blackstone, calls “vindication.”

It seems to me that the plain-language movement (http://books NULL.google NULL.com/books?id=5_wO_LKwTOcC&lpg=PA41&dq=%22plain%20language%20movement%22&lr=&as_drrb_is=q&as_minm_is=0&as_miny_is=&as_maxm_is=0&as_maxy_is=&as_brr=1&pg=PA41#v=onepage&q=%22plain%20language%20movement%22&f=false) (not to be confused with the plain-meaning rule (http://www NULL.wnd NULL.com/index NULL.php?pageId=38687)) from which the professor was instructing is a movement to encourage lawyers toward the discipline (or virtue if you will) of modesty (http://1828 NULL.mshaffer NULL.com/d/search/word,modesty).  So, in that aspect, the movement is a good thing; however, one thing concerns me: without a recognition of the principles of modesty, the opportunity is lost to educate a student in the more important lesson.  In other words, we want to teach our children particular ways to exercise modesty and, more importantly, help them understand the principle, so that we do not deprive them of wisdom (http://1828 NULL.mshaffer NULL.com/d/search/word,wisdom).  We want to instruct their behavior, but it is another thing altogether to lead them in understanding.

One more thing concerns me about the plain-language movement.  And I don’t mean to sound like an alarmist, but in light of current trends in government, there is the danger of the evolution of the law into a system of rules inadequate to protect the rights our Founding Fathers died for.  Take, for example, property (http://1828 NULL.mshaffer NULL.com/d/search/word,property).  We talk about ownership of property, property rights (http://www NULL.wnd NULL.com/index NULL.php?fa=PAGE NULL.view&pageId=114530), etc.  Americans know these ideas well and treasure them.  You can move on down the line toward other less-known terms and concepts such as incorporeal (http://1828 NULL.mshaffer NULL.com/d/search/word,incorporeal) hereditaments (http://1828 NULL.mshaffer NULL.com/d/search/word,hereditament), and quieting title (http://www NULL.legislature NULL.state NULL.al NULL.us/CodeofAlabama/1975/6-6-540 NULL.htm).  Although these concepts are not as well-known, they are nonetheless important to fundamental rights of property ownership (http://1828 NULL.mshaffer NULL.com/d/search/word,ownership).  Already, the plain-language movement “outlaws” the use of certain legal terms.  Hopefully, it will not take on a negative effect upon the law but only simplify the expression of it, as lawyers serve to protect and vindicate (http://www NULL.wnd NULL.com/index NULL.php?fa=PAGE NULL.view&pageId=97094) the property rights of their clients.

Sir William Blackstone describes vindication as the saving of a law from misrepresentation (http://books NULL.google NULL.com/books?id=AGMWAAAAYAAJ&dq=intitle%3ACommentaries%20intitle%3ALaws%20intitle%3AEngland%20inauthor%3ABlackstone&lr=&as_drrb_is=q&as_minm_is=0&as_miny_is=&as_maxm_is=0&as_maxy_is=&as_brr=0&pg=PA59#v=onepage&q=&f=false).  Since the expression of the law depends on language, a change in the language could imply a change in the expression of the law.  As a result, post-modern (http://www NULL.wnd NULL.com/index NULL.php?fa=PAGE NULL.view&pageId=14452) words chosen to replace outdated or obscure terms may misrepresent the intent of the law and the notion of the rights that the law protects.  Maybe we ought to preserve at least a semblance of the foundations (http://press-pubs NULL.uchicago NULL.edu/founders/tocs/toc NULL.html) on which our country was built.

Alabama’s motto is, “We dare defend our rights. (http://www NULL.archives NULL.state NULL.al NULL.us/emblems/st_motto NULL.html)”  May God help us all to defend them.  And may God bless us, give us strength, and let us all be encouraged in modesty.

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Comments

  1. Rosalind Holloman says:

    Good article. I find it difficult to believe that Legal “Scholars” are moving to eliminate some of the most elementary legal terms. Terms like “liability” are needed and even the most uneducated understand what it means. Why they have to purchase “liability” insurance for their cars. What is this going to lead to?

  2. James E. Reeves says:

    The former meaning of legal terms mean nothing to legal engineers being paid to compete in lobbying firms today.
    Just take the word “preserve” in the 7th amendment. Does that word apply to having a conscience to maintain a principle for justice above current events such as forced arbitration?
    The Republicans and Democrats are both totally depraved as an organized group of people. The spiritual leadership of John Jay the first Chief Justice of the United States need to be studied by every lawyer.

    James Reeves

  3. James E. Reeves says:

    These articles reveal a flaw, but not in the constitution. The flaw is in the jurist we have entrusted to interpret that intended original covenant made so many years ago by men of real integrity.
    The so called “Scholars” of today only have commerce in mind as their “bottom line” and will not be satisfied until all “individual rights” are under arbitrary committees.
    The original “Bill of Rights” must be examined today in light of the founding father’s original intent, by people of integrity and resolve.
    Can we trust any of our politicians to read it?
    Can we trust any judge to interpret it?
    Can we trust any preacher to proclaim it?
    NO!
    Can we trust our military “Children” to bleed for it? YES THEY WILL

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