Friday, October 1, 2010
My colleague, Shaun Martin (pictured), discusses the following case on readability of probation conditions over at California Appellate Report. In deciding the trial court could have done better, the court of appeal compares the trial court's prose with that of Ronald Dworkin (not pictured). In Shaun's words, the court of appeal
uses an online scoring system for readability -- which is actually pretty neat -- and says that the trial court's condition has a grade level of 28 years whereas the Court of Appeal's formulation has a grade level of around 7 years.
The problem is that those "readability" scoring systems are way too simplistic. . . . Footnote six of the opinion, to me, proves the problem. Justice Rushing writes that "Clarity is possible even where the concept is complex." Dropping a footnote that reads: "The phrase 'Discretion, like the hole in a doughnut, does not exist except as an idea left open by a surrounding belt of restriction,' has a readability score of 10.74. The words are from R. Dworkin, Taking Rights Seriously (Harvard 1978) p. 31."
Bottom line: if you're unclear at the prose level, you never get a chance truly to confuse people at the idea stage.