Our Opinion: Legalese ‘spells’ place citizens in needless trance

If you’ve ever looked up a state statute or skimmed a click-to-consent contract and considered the dense text as difficult to parse as a foreign language, researchers at the Massachusetts Institute of Technology say you’re not entirely wrong.

A study published last week in the Proceedings of the National Academy of Sciences journal concludes the legalese famously found in all manner of legislation, from acts of Congress to city and town ordinances, is convoluted on purpose — not necessarily to obfuscate, but to convey authority and gravitas.

“People seem to understand that there’s an implicit rule that this is how laws should sound, and they write them that way,” said Edward Gibson, an MIT professor of brain and cognitive sciences and the study’s senior author.

An MIT news release even compares the process of drafting laws to devising authentic-sounding incantations for conjurers in fantasy writing: “Just as ‘magic spells’ use special rhymes and archaic terms to signal their power, the convoluted language of legalese acts to convey a sense of authority.”

Legal documents often include lengthy definitions in the middle of sentences, a technique linguists call “center-embedding” that makes text difficult to understand.

“In English culture, if you want to write something that’s a magic spell, people know that the way to do that is you put a lot of old-fashioned rhymes in there,” Gibson said. “We think maybe center-embedding is signaling legalese in the same way.”

Recognizing the human tendency to write laws in an unwieldy (and unnecessary) way is the first step toward reducing the bloat that currently characterizes our federal and state lawbooks. As this editorial page occasionally points out, no conscientious citizen stands a chance of knowing the 300,000-plus federal crimes he or she could be charged with, and that uncertainty restrains liberty and enables selective prosecution.

Supreme Court Justice Neil Gorsuch is the latest legal scholar to reach that conclusion. His book “Over Ruled: The Human Toll of Too Much Law,” written with Janie Nitze, was released Aug. 6 on HarperCollins Publishers’ Harper imprint.

“I’ve just seen so many cases come through my courtroom where ordinary Americans — decent, hardworking people who are trying to do their best — are just getting … thwacked by laws unexpectedly,” Gorsuch told an audience at the Ronald Reagan Presidential Library in California.

Here in North Carolina, we’re reminded of UNC School of Government professor Jessica Smith’s 2018 clarion call for recodification, or cleaning up the state’s criminal law.

“There’s no central database for collecting criminal ordinances,” Smith told the John Locke Foundation think tank’s Carolina Journal. “It’s impossible to say how many things we’ve made criminal in North Carolina.”

Professor Smith suggested rewriting North Carolina’s criminal code from soup to nuts. By sheer necessity, that would greatly reduce the number of individual laws, benefiting both the state’s judicial system and its residents.

“The law’s complexity is costly to the state and results in wrongful convictions and acquittals, inconsistent application and lack of notice to residents,” the Carolina Journal concluded.

No legal scholar, let alone an ordinary person, could commit our state’s thicket of criminal laws to memory. When people don’t know the law, they can’t ever be certain their conduct is lawful. Confusion and fear take the place of confidence and freedom.

Legislators have a golden opportunity. Instead of passing new laws to weigh down the already sagging statute books, they should turn their efforts to consolidating the laws we already have. How’s this for a 2024 campaign promise: Subtract two pages from the N.C. General Statutes for every page you add?

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