Book Review: Incomprehensible! a Study of How the Legal System Encourages Incomprehensibility, Why It Matters, and What Can Be Done About It
Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.
Incomprehensible!: A Study of How the Legal System Encourages Incomprehensibility, Why It Matters, and What Can Be Done about It. By Wendy Wagner & Will Walker. New York: Cambridge University Press, 2019. xviii, 342 p. Includes bibliography and index. ISBN13 978-1107400887 (paperback) $39.95; ISBN13 978-1107008472 (hardcover) $102.95.
Reviewed by David H. Michels
Sir James Dunn Law Library
Schulich School of Law, Dalhousie University
In CLLR 45:1
It is a common lament that the law has become increasingly complex and, in some cases, only really understood by the specialist (e.g., tax law). Despite attempts by government and industry to become more transparent, the amount of legal information the average citizen is expected to digest to even buy a phone is increasingly unmanageable. This is the problem Incomprehensible! seeks to address. This book is written primarily for insiders: the legal community, regulators, and state actors. These are the people who the authors feel are responsible for much of the incomprehensibility, either by creating it or allowing it to go unchallenged. The focus is on American institutions and processes, and although the issues they raise are familiar to Canadians, there was no attempt to generalize to other jurisdictions.
It is important to distinguish this book from others written on this topic, like Zariski’s Legal Literacy (Athabasca, AB: AUP, 2014), which I previously reviewed. In this work, the authors argue that previous attempts to address the problem of law’s incomprehensibility have failed because they focussed on the audience (citizens, industry, etc.) and not the speaker (lawmakers, regulators, etc.). They further argue that there may be more incentives for speakers to keep law incomprehensible, and thereby thwart initiatives like transparency and plain speech by techniques such as data-dumps, fine print, and deliberate ambiguity. They argue that incentivizing the speakers to minimize the effort required by the audience to make sense of the information has the greatest hope of success.
The book comprises three parts: an introduction and model, six case studies applying the model in various areas of regulation and law making, and a blueprint for reform. I will illustrate the authors’ approach with one of the case studies: “Comprehension Asymmetries in Legislative Processes.” The authors begin by providing examples of incomprehensible laws produced by Congress, and then move on to discuss the institutional process that can lead to legislation that confounds even members of Congress, their primary audience. The authors suggest some of the reasons why tools like ambiguity and practices, such as block voting in committees and omnibus bills, may serve both political and practical ends. They then offer proposals for reform that would motivate lawmakers to pass comprehensible legislation. The book’s final chapter draws together the conclusions from each of the studies. There is a detailed table of contents, substantial endnotes, an excellent bibliography, and subject index.
I found this book well researched and meticulously referenced. The authors have been careful in building and illustrating their arguments, drawing on many previous analyses of American institutions and regulatory processes. Although I recognized a number of the issues raised in the Canadian context (yes, omnibus bill, I am looking at you), I wondered if we have the kinds of analyses of our institutions like the ones Wagner relied on in crafting her arguments. Despite its American focus, this book offers valuable ideas for Canadians and suggests research opportunities for our own analyses and applications. Since the book does require an understanding of legislative and regulatory processes, I would recommend it for academic and government audiences, particularly those interested in regulatory reform.