Poor writing, not specialized concepts, drives processing difficulty in legal language

Poor writing, not specialized concepts, drives processing difficulty in legal language. Eric Martínez, Francis Mollic, Edward Gibson. Cognition, Volume 224, July 2022, 105070. https://doi.org/10.1016/j.cognition.2022.105070

Abstract: Despite their ever-increasing presence in everyday life, contracts remain notoriously inaccessible to laypeople. Why? Here, a corpus analysis (n ≈10 million words) revealed that contracts contain startlingly high proportions of certain difficult-to-process features–including low-frequency jargon, center-embedded clauses (leading to long-distance syntactic dependencies), passive voice structures, and non-standard capitalization–relative to nine other baseline genres of written and spoken English. Two experiments (N=184) further revealed that excerpts containing these features were recalled and comprehended at lower rates than excerpts without these features, even for experienced readers, and that center-embedded clauses inhibited recall more-so than other features. These findings (a) undermine the specialized concepts account of legal theory, according to which law is a system built upon expert knowledge of technical concepts; (b) suggest such processing difficulties result largely from working-memory limitations imposed by long-distance syntactic dependencies (i.e., poor writing) as opposed to a mere lack of specialized legal knowledge; and (c) suggest editing out problematic features of legal texts would be tractable and beneficial for society at-large.

4. Discussion

Our study aimed to better understand the reason why legal texts can be difficult to understand for laypeople by assessing to what extent: (a) difficult-to-process features that are reportedly common in contracts are in fact present in contracts relative to normal texts, and (b) such features–insofar as they are present–cause processing difficulties for laypeople of different reading levels. Here we discuss in turn the extent to which our results successfully answer these questions, as well as the implications of our results from both a scientific and policy perspective.

With regard to (a), our corpus analysis revealed that features such as center embedding, low-frequency jargon, passive voice and non-standard capitalization–all associated with processing difficulty–were more prevalent in contracts relative to all other texts genres that we looked at. In most cases, this difference was striking. Prior to our study, there had been long-standing speculation and anecdotal accounts of the presence of these features in legal texts, and more recent studies had to some degree identified the prevalence of passive voice (Goźdź-Roszkowski, 2011) and non-standard capitalization (Arbel & Toler, 2020) in legal contracts, either on a smaller scale or with regard to specific types of contracts. Our study provides the first large-scale systematic account of the presence of all of these features in legal texts, both overall and relative to a baseline.

With regard to (b), our experimental study revealed that contracts drafted with all of these features were more difficult to both comprehend and recall than contracts drafted without all of these features, while our analyses of individual linguistic structures revealed that some of the features–such as center-embedding and low-frequency words–present greater difficulties in the context of recall than others, such as passive voice. Although language experience–as measured by ART–predicted comprehension performance, there was no correlation between ART and recall performance, nor was there a significant interaction between register and performance on ART in predicting recall or comprehension. Taken together, these results suggest that these features collectively present processing difficulties for readers of all levels of experience.

From a cognitive science perspective, our results provide insight into the long-puzzling issue of why contracts and other legal texts appear so difficult to understand for laypeople. Some legal theorists have taken the position that “law is a system built upon expert knowledge of technical concepts,” such as habeas corpus, promissory estoppel, and voir dire (Tobia, 2019). As a result, the processing difficulty of legal texts is simply a natural result of not knowing specialized legal concepts. Others have argued that “law is a system built upon ordinary concepts,” such as cause, consent, and best interest (Tobia, 2019; Tobia, 2021). In which case, processing difficulty could be explained by psycholinguistic factors.

Our findings better align with an ordinary concepts account of legal language. Previous work in the general psycholinguistics literature has suggested that center-embedded clauses are difficult to process due to the working memory constraints they impose on readers. Correspondingly, the fact that center-embedded clauses were more than twice as prevalent per sentence in the contract corpus than in the standard-English corpus, and inhibited recall to a greater degree than other features in our experimental study suggests that the cause of the processing difficulty of legal texts may be largely related to working memory costs as opposed to a mere lack of understanding of specialized legal concepts.

Furthermore, if certain concepts are not known by those without expert legal training, then one would not expect to find many words to describe those concepts aside from the low-frequency jargon used by legal experts (just as there are no higher-frequency synonyms for terms such as quark or electron in physics, for example). Consequently, the fact that our corpus analysis revealed that contracts contained even more cases of words with high-frequency synonyms than standard English texts undercuts the view that processing difficulty is driven merely by lack of specialized knowledge. Although it is conceivable that specialized concepts contribute to the perceived processing difficulty of legal texts, our results suggest that insofar as low-frequency legal terminology presents processing difficulty for laypeople, this often results not from unfamiliarity with the concept underlying that terminology but with the terminology itself (such as the phrases ab initio and ex post facto, which in many cases respectively can be simplified to “from the start” and “after the fact”).

From a policy perspective, these findings also provide insight into the long-standing issue of how to ease the processing difficulty of legal texts for laypeople. Efforts to simplify legal language over the last 50 years have focused largely on public legal documents, despite the fact that contracts and other private legal documents are more commonly encountered by laypeople–and increasingly so with the rise of the internet and online terms of service agreements. The fact that contracts contain a stunningly high proportion of features that incur processing difficulty in laypeople that can be feasibly replaced with easier-to-process alternatives underscores the importance for efforts to simplify legal language to not neglect private legal documents. Moreover, the fact that certain features that are common to legal texts–such as center embedding and low-frequency words–appear to inhibit recall to a greater degree than others, such as passive voice, suggests that lawyers interested in simplifying legal texts for the benefit of readers ought to prioritize unpacking clauses into separate sentences and opting for higher frequency synonyms when possible.

The main effect of language experience on comprehension performance suggests that those with less language experience have a harder time understanding legal texts. Given that those with less reading experience as a group tend to be of lower socioeconomic status (Bradley & Corwyn, 2002; Kieffer, 2010), and those of lower SES face greater disenfranchisement from the legal system (Legal Services Corporation, 2017), this suggests that simplifying contracts may have non-trivial access to justice implications, particularly as their prevalence increases. At the same time, the fact that those with higher reading experience also struggled to comprehend and understand contracts written in legalese suggests that redrafting texts into a simpler register would have beneficial effects for those of all reading levels.

To better understand how to integrate these findings, we should aim to understand why lawyers choose to write in such an esoteric manner in the first place. One possibility is that legal language must be written so as to maintain communicative precision. This possibility is undercut by our results and previous findings that show comprehension of legal content with a simplified register (e.g., Masson & Waldron, 1994). While it seems entirely plausible that certain legal jargon is inevitable, our results suggest that in many instances such jargon can be replaced with simpler alternatives that increase recall and comprehension while preserving meaning.

Another possibility is that lawyers choose to write in a complex manner to convey their priorities. For example, if a lawyer prioritizes the user's responsibilities they may focus on making them clear at the expense of other content (e.g., company's obligations). If the lawyer's priorities differ from the reader's priorities they may even do this implicitly as opposed to engaging in an outright “conspiracy of gobbledegook” (Mellinkoff, 2004).

Lastly, lawyers may not choose to write in an esoteric manner. Similar to the “curse of knowledge” (Hinds, 1999; Nickerson, 1999), they may not realize that their language is too complicated for the average reader to understand (Azuelos-Atias, 2018). This hypothesis appears to be supported by previous findings that show an effect of features such as prior knowledge and reading skill on the processing of specialized texts (Cain, Oakhill, & Lemmon, 2004; Kendeou & Van Den Broek, 2007; Long, Prat, Johns, Morris, & Jonathan, 2008; Noordman & Vonk, 1992; Ozuru, Dempsey, & McNamara, 2009). Similarly, one might predict that lawyers would be equally likely to comprehend contracts if they were drafted in an esoteric style as they would if they were drafted in a simpler register, which may render them less able to appreciate the difficulty of these features for those without legal training. Further work into the plausibility of these hypotheses could yield insight into how best to persuade lawyers to integrate the findings of our and similar studies and help alleviate the growing mismatch between the ubiquity and impenetrability of legal texts in the modern era.

The authors explore whether mandatory, universal, in-person sexual misconduct training achieves its goals to build knowledge about sexual assault and harassment and increase intentions to report episodes of assault

Effects of Mandatory Sexual Misconduct Training on University Campuses. Mala Htun et al. Socius, September 20, 2022. https://doi.org/10.1177/23780231221124574

Abstract: The authors explore whether mandatory, universal, in-person sexual misconduct training achieves its goals to build knowledge about sexual assault and harassment and increase intentions to report episodes of assault. The authors present results from three studies with quasi-experimental designs as well as interviews with students and staff members at a diverse public university in the western United States. The surprising finding is that participating in training makes women students less likely to say they that will report experiences of sexual assault to university authorities. The training produces some small positive effects: students gain broader definitions of sexual misconduct and are less likely to endorse common rape myths, and women students express less sexist attitudes immediately after training. This study raises questions about whether one-shot training helps reduce sexual violence and increase reporting on college campuses and whether universities should invest in these types of training.

Discussion

The most striking finding of our study is that women students become less likely to say that they would report experiences of sexual assault after participating in sexual misconduct training. We see a 12 percentage point decline in the share of women who say they would report assault to the university. The share of men who say that they would report assault does not change. In addition, women become more likely to say they would encounter retaliation if they report.

Our results imply that the university’s considerable investments in reporting did not change women’s perceptions of reporting’s desirability and its risks. Women do not all welcome the possibility of reporting assault, and they are more worried about the consequences of reporting than are men. Not reporting allows women to downplay a bad experience, reject the label of victim, and preserve their existing relationships (Khan et al. 2018). Sitting through sexual misconduct training—perhaps by concretizing the meaning of assault for survivors or potential survivors—may actually induce greater resistance to reporting among women.

On the brighter side, we find that training expands student knowledge about, and attitudes toward, sexual assault and harassment in ways intended by the university and the federal government’s Title IX goals. This is potentially important, as changing knowledge and attitudes may be necessary to change the culture surrounding gendered violence on college campuses (Hirsch et al. 2019). However, the effect sizes are small and reflect the training’s immediate impact, as our study design precluded gathering evidence of changes in behavior and attitudes after more time had passed.²³ Future research should probe whether the positive and negative effects of the training endure over the medium to longer term.

In contrast to other work showing that discussions of sexual assault and harassment activate gender stereotypes (e.g. Tinkler 2013), our surveys do not show that training aggravates sexist beliefs. However, we do find that men’s and women’s views on sexism diverge more after the training (see Figure 5). Some of our interviews suggest that for some people—and despite trainers’ gender neutral discourse and avoidance of the male perpetrator–female victim stereotype—the training may have reinforced differences between men and women. For example, one woman student told us she found the training to be “isolating”:

it made everyone feel, like the genders, feel polarized. So, when I walked in there, I was having a comfortable conversation with my neighbor who was a man and by the end it was like we were trying to distance our seats as much as we could from each other.²⁴

The need to comply with federal mandates motivated university officials to develop the training program we studied, as is the case with hundreds of other institutions of higher education around the country. At our study site, the compliance process was intense because of the DOJ oversight agreement. The agreement led to multiple changes in policy and process, which were necessary and overdue, but it also had some detrimental effects on institutional culture.

A senior university leader characterized the challenge of reducing sexual assault on campus in the following way:

How do you solve a problem? Look to other cases of institutional success. [such as our work to increase graduation rates] Leadership took a strong stand and communicated a clear message. We made the issue a priority. We targeted problem cases. We did research and got data [that ruled out what many people thought to be the source of the problem]. . . . But it’s hard to launch this process under the guise of a [federal] investigation, which makes everyone defensive and resentful.²⁵

University administrators had mixed interpretations of how much programming federal guidelines required. As one compliance officer put it, “I have super high expectations of what it means to meet [federal] expectations, but others see it more minimally.”²⁶ Senior university leaders assigned responsibility for sexual violence prevention to certain campus units without giving them the extra staffing and budget that serious efforts require. One administrator of these units noted that the university “is continuing the pattern of marginalization and underfunding of these issues.”²⁷ 

Laughter, play faces and mimicry in animals: evolution and social functions

Laughter, play faces and mimicry in animals: evolution and social functions. Marina Davila-Ross and Elisabetta Palagi. Philosophical Transactions of the Royal Society B: Biological Sciences. September 21 2022. https://doi.org/10.1098/rstb.2021.0177

Abstract: Human laughter and laugh faces show similarities in morphology and function with animal playful expressions. To better understand primordial uses and effects of human laughter and laugh faces, it is important to examine these positive expressions in animals from both homologous and analogous systems. Phylogenetic research on hominids provided empirical evidence on shared ancestry across these emotional expressions, including human laughter and laugh faces. In addition, playful expressions of animals, in general, arguably have a key role in the development of social cognitive skills, a role that may help explain their polyphyletic history. The present work examines the evolution and function of playful expressions in primates and other animals. As part of this effort, we also coded for muscle activations of six carnivore taxa with regard to their open-mouth faces of play; our findings provide evidence that these carnivore expressions are homologues of primate open-mouth faces of play. Furthermore, our work discusses how the expressions of animal play may communicate positive emotions to conspecifics and how the motor resonance of these expressions increases affiliation and bonding between the subjects, resembling in a number of ways the important social–emotional effects that laughter and laugh faces have in humans.

3. Social use of open-mouth faces, laughter and other play vocalizations

(a) Play coordination, social cohesion and the development of skills

The differences in modality and anatomy of play expressions as well as their polyphyletic history indicate that these expressions have a complexity in both form and function. Carnivores and primates seem to modify their play expressions when they receive the attention of their playmates [38,45,58,80,81], and chimpanzees and bonobos are known to also modify them if the mothers of their infant playmates are nearby [82] or group members are attentive to the sender [83,84]. Multiple social functions of play expressions that are not necessarily mutually exclusive have been discussed.

As mentioned earlier in the present work, an important function of animal play expressions is to signal ‘this is play’, which helps to coordinate actions among playmates [46,85–87]. Probably most importantly, such signalling is likely to help avoid escalation into real fights during rougher play and, consequently, to prevent getting hurt, especially when the playmates are dissimilar in strength and do not have close social relationships [74,88–90].

Whereas mammals produce both types of open-mouth faces in both gentle and rough play [35,58], their upper-teeth exposure, which resembles wide-open mouth displays of submission and appeasement [39,54], tends to occur more often during rough play [37,60,91]. Similarly, play vocalizations seem to be predominantly produced in rough-and-tumble [74]. Thus, these types of expressions might signal to the recipient ‘this is just play’. It is also possible that the playmates widen their mouths further and expose their teeth owing to having to breathe more intensely and loudly during rough-and-tumble. Furthermore, the individuals producing these expressions could be in a state of high arousal and show more play biting [56]. The open-mouth faces without exposed teeth, on the other hand, seem to be less dependent on play intensity and have a more general application within play [37,56,60].

Consistent with the claim that play expressions signal ‘this is play’ or ‘this is just play’, empirical findings show that these expressions from rodents to primates may permit play actions and play bouts to be prolonged [58,84,86,87,89,92,93]. Furthermore, animals can sometimes produce open-mouth faces as part of the play invitation (e.g. when hitting the other playmate prior to play), and such signalling here is likely to help invite to play [60]. Such increase in playful interactions, key affiliative behaviours in social animals, is likely to have a notable impact on social bonding and, consequently, other behaviours among group members [43,94–98]. In humans, it is also known that laughter helps social cohesion [1,99]. Five-month-old infants already respond differently when hearing friends laughing together compared with strangers behaving this way [100].

In accordance with Barbara Fredrickson's Broaden-and-Build Theory of Positive Emotions, play expressions may contribute to the development of a range of skills that are central for individuals living in social groups, including social-cognitive skills [4]. Supporting this claim, play may consist of cooperative and competitive behaviours, where young individuals can practise with low risk a range of behaviours and further explore the impact these behaviours have on their conspecifics [93,101], which may become more relevant at a later stage in their development [102]. Such functions are consistent with the notion that positive expressions, such as laughter and other play expressions, do not necessarily need to constantly have immediate benefits, and perhaps their range in function makes them different from negative expressions, where it can be crucial to respond quickly in a risky situation [4,5].

Despite overlapping contexts, play vocalizations and open-mouth faces are at least to some extent likely to differ in function. Play vocalizations seem to be more limited to the context of play than open-mouth faces ([84]; for functional flexibility, see [103,104]). Although open-mouth faces occur predominantly during play bouts, they have also been observed shortly prior to them in order to invite a conspecific to play [105]. On a few occasions, they have been observed fully outside of play. One such incident took place at the Serengeti Park Hodenhagen, where Pia, a juvenile chimpanzee, was unsuccessfully play-inviting her father by pulling his hair (see [33]). As he did not budge, Pia left the scene, laid down to relax for a while, and suddenly started producing open-mouth faces (for a video footage, see [33]). Such rare incidents, where open-mouth faces that occur after nonaggressive violations of expectations resemble the use of human laughter linked to benign violations and humour [106,107], can already be observed in humans during infancy [108].

Perhaps the main difference in playful expressions between human and nonhuman animals lies in their occurrence. Human laughter and laugh faces with their sophisticated volitional as well as spontaneous forms are characteristic components of human everyday social interactions that may certainly vary in function and express, for instance, politeness, embarrassment, mocking and Schadenfreude [9,11,109,110]. They show a level of control that has, to our knowledge, not been found for animal play expressions, at least thus far.

(b) Mimicking and why it may be important for animals

The matching of expressions has a special role in animal play, where the expression of one playmate induces the same expression in another playmate. It has been mainly studied in the form of mimicry (e.g. dogs–horses [46], carnivores [58,62,111,112], primates [26,34,86,92,113]). Mimicry involves an automatic response system that is perhaps most easily observable as rapid mimicry, with a response latency of 1 s or less [114,115]. Rapid mimicry within short-distance communication has been predominantly observed in playful contexts, perhaps because they represent a platform for acquiring a range of social, emotional and cognitive skills [4,5].

The matching of animal play expressions, however, also comes in other types. For instance, delayed matching responses have been reported for primate open-mouth faces and play vocalizations [86,92,112]. Although caution is necessary when discussing why these responses were slower than rapid mimicry, it is interesting to note that humans sometimes respond more slowly when the behaviour is volitional, because additional neural processes are then involved compared with rapid mimicry (see [114,116,117]). Furthermore, the matching of play expressions among animals may range from being exact, i.e. with the same variant matched (e.g. open-mouth faces with upper lips raised [58,112]), to being distinct, i.e. with a different variant of the same expression matched (e.g. long laugh bouts seem to induce short laugh bouts [86]). Interestingly, previous studies have examined only dyadic constellations, so that research is needed to quantitatively explore if triadic facial expressions can occur in primates and other animals.

Thus, the matching of play expressions comes in various types, suggesting that they take up important functions among animals. Such matching is likely to heightened advantages that already come with spontaneously producing play expressions. Owing to its facial and vocal feedback component, it may serve even further as a social glue than spontaneous play expressions and may also contribute more to modulating interactions among playing animals [58,92]. In lowland gorillas, for instance, Bresciani and colleagues [118] found that such matching is prolonged when the facial response of the receiver mirrors the facial constellation of the playmate.

Although it can be problematic to link behavioural actions consistently with emotional states [119–121], expressions of play seem to be, in general, closely associated with positive affect in both nonhuman animals and humans (see [33]). Perhaps the context of gentle solitary play shows its link to positive states in animals most readily. For example, expressions produced by a young animal playing by her/himself are unlikely to have an interactive application value, making it reasonable to argue that such expressions are positive emotional outbursts. Such a link to affect may certainly be sustained during social interactions. Consequently, the mirror effect of play expressions may well be linked to elevated valence arousal states among playmates.

Two distinctive pathways that may lead to such an elevated state have received notable research attention [122–125]. First, the matching response is induced on a motoric level, a pathway that has been discussed in relation with behavioural contagion [126,127] as well as motor mimicry [122,128]. In this case, a spontaneous play expression triggers the same expression in the other playmate. Especially for motor mimicry, it has been argued that the motor resonance may trigger in the recipient the same emotional state experienced by the playmate [34,128,129]. However, emotions do not necessarily need to be involved when a behaviour is matched. The matching of behaviours may indicate, for instance, that the playmates are already in comparable states, perhaps in elevated positive states, which could help to prolong play. Interestingly, studies on animal play have shown that rapid facial mimicry and delayed laugh responses are linked to longer play bouts [34,58,62,86,92]. Whereas not all matching expressions in play must be linked to affect, it seems reasonable to argue that this association will strengthen over time, especially since young animals typically experience myriad playful events with familiar conspecifics.

Second, the matching response is affect-induced [122,130]. Here, a spontaneous play expression of a playmate causes an elevated positive state in the other playmate, a state that then induces the behavioural response. Whereas the two mentioned pathways may both result in elevated positive emotional states that are likely to benefit the playmates in multiple ways (for benefits of play, see [4,5]) it is difficult to determine which is the underlying path for the various forms of matching in animal play. What we know with more certainty is that any involved emotion state changes are likely to be minimal if the studied animals are already playfully interacting, i.e. in the same social–emotional context.

To systematically test for positive emotional contagion, where an emotional state spreads across individuals, it is important to have subjects socially and emotionally disconnected and, preferably, to examine them beyond a dyadic level [131,132]. An interesting study by Schwing and colleagues [75] on keas, a playful parrot species, demonstrated that played-back recordings of play vocalizations induce play behaviours in conspecifics previously involved in other behaviours. This study supports the notion that positive emotional contagion might not be a human-unique phenomenon. Interestingly, similar playback approaches carried out with chimpanzee laughter recordings did not show a comparable outcome in their conspecifics [133,134]. Unlike humans [135], chimpanzees do not seem to produce laughter merely based on hearing such vocalizations.

Mimicking and other types of behavioural matching within the context of play are also likely to be important for socially learning and practising a wide range of behaviours in humans and nonhuman animals [4,5,136]. In support of this notion, there is evidence that animals match the exact variant of the same expression of their playmates [58,112] and that the matching of play expressions may differ in form and function between social groups [86,137,138]. This brings us back to the Power Asymmetry Hypothesis [59], which could be extended to colony differences. Colonies may differ in the degree in which they show tolerance and aggression [139,140] and it seems reasonable to argue that clearer forms of communication may be essential when there is more risk of getting hurt (see [59]). Furthermore, the absence of the exposed upper teeth in the laughing chimpanzees at Burgers' Zoo, mentioned by Jan van Hooff in his pioneering work [41], and its presence in other chimpanzee colonies (see [26]) might indicate group differences regarding this facial feature. Exact matching of facial variants could help explain such potential differences. However, this topic requires further research.

Interestingly, there is some indication that the upper-teeth exposure develops at a later stage in immature primates [57,105], so that its occurrence throughout the developmental trajectory could depend on the exact matching mechanism and the social environment. More research is, however, needed on this topic. In a recent psychoacoustic study, Kret et al. [141] played back human infant laughter to adult participants, who were asked to determine the airflow direction from the recordings. The researchers found that the infants produced laughter increasingly as an egressive vocalization (i.e. a vocalization that is produced during the exhalation phase only; see [22,142]) over time and that this acoustic trait was perceived to be more positive by the adult listeners [141]. Such developmental findings could indicate that human infants already adjust laughter to their acoustic environment via social feedback.

How much a person laughs in conversation appears to be a stable trait associated with being relatable, and is not necessarily reflective of enjoyment, since laughter negatively predicted conversation enjoyment

Tendency to laugh is a stable trait: findings from a round-robin conversation study. Adrienne Wood, Emma Templeton, Jessica Morrel, Frederick Schubert and Thalia Wheatley. Philosophical Transactions of the Royal Society B: Biological Sciences. September 21 2022. https://doi.org/10.1098/rstb.2021.0187

Abstract: People often laugh during conversation. Who is more responsible for the laughter, the person laughing or their partner for eliciting it? We used a round-robin design where participants (N = 66) engaged in 10 different conversations with 10 same-gender strangers and counted the instances of laughter for each person in each conversation. After each conversation, participants rated their perceived similarity with their partner and how much they enjoyed the conversation. More than half the variability in the amount a person laughed was attributable to the person laughing—some people tend to laugh more than others. By contrast, less than 5% of the variability was attributable to the laugher's partner. We also found that the more a person laughed, the more their partners felt similar to them. Counterintuitively, laughter negatively predicted conversation enjoyment. These findings suggest that, in conversations between strangers, laughter may not be a straightforward signal of amusement, but rather a social tool. We did not find any personality predictors of how much a person laughs or elicits laughter. In summary, how much a person laughs in conversation appears to be a stable trait associated with being relatable, and is not necessarily reflective of enjoyment.