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The BUSKLAW May Newsletter: "Here's Another Clue for You All, the Walrus Was..."

To continue the title: Paul. As in Sir Paul McCartney. But in 1969, there was a problem: several radio stations broadcast a conspiracy theory: Paul died in a car crash in 1966. And the remaining Beatles covered it up and replaced the dead Paul with an (apparently equally-talented) imposter. Fans began scouring Beatles songs for evidence of the ruse; they pointed to "The walrus was Paul" line from the song White Onion, concluding that "walrus" was the Greek word for corpse (it isn't). in reality, John Lennon was messing with fans' propensity to find meaning to those lyrics when there was none. In an interview for what later became the Beatles Anthology television documentary, John said: 

I threw the line in—"the Walrus was Paul"—just to confuse everybody a bit more. It could have been "The fox terrier is Paul." I mean, it's just a bit of poetry. I was having a laugh because there'd been so much gobbledygook about Pepper—play it backwards and you stand on your head and all that.

Despite John's explanation for Paul the walrus, the Paul is dead urban legend continued long after 1969; in 2009, Time magazine included the tale in its article on ten of "the world's most enduring conspiracy theories." 

Because there's something in the human psyche that won't let go of patently false assumptions. Psychologist  Valerie Tarico observes that "false ideas can be sticky...they can spread from person to person, getting elaborated along the way until they become virtually impossible to eradicate." Examples of widely-adopted beliefs that aren't grounded in facts abound. Climate change is not happening. An American president was born in Kenya. Wind turbines cause cancer. Vaccinations kill children. And I have another candidate for that list: Legal jargon benefits society.  

Time and again this argument has been debunked but persists as a sticky false assumption. Professor Joe Kimble, in his book Writing for Dollars, Writing to Please: The Case for Plain Language in Business, Government, and Law (2012), cites empirical evidence (summaries of 50 case studies) for the enormous benefits of using plain language. And see this Michigan Bar Journal article that my colleague Michael Braem and I wrote describing several proposed justifications for legal jargon and why they must fail.

This brings us back to last month's post where we pulled apart the purchase and operating agreements for the ICON A5, the snazzy, pricey "jet ski with wings." I reached out to ICON's senior management with predictable results. They first thought that I wanted to purchase one of their planes. (No, can't afford it, no place to park it.) Then they thought that I wanted to discuss "jet card options." (What are those, my precious?) When I stated that I was simply giving them the link to my constructive critique of their contract documents, I was met with stony silence. 

As the venerable Cully Wilson said, "I tried, puppy." ICON has the right to preserve the useless accuracy of their legal jargon (thanks to Professor Patrick Barry for coining that fitting term). Perhaps I planted a seed, ICON will take another look at their contracts without telling me, and revised, cleansed versions will miraculously appear on their website. (Hope springs eternal, so I'll have to keep checking their website.)

Or perhaps ICON has another motive. One of my constant readers remarked that ICON may want to force a purchaser (or their counsel) to figure out how many ways jargon-filled and vague contract language could be interpreted. Like first having to scale the medieval wall of jargon before getting inside the castle of contents. "It works well, so no reason to 'monkey' with success!" ICON claims that they have sold around 100 A5s, but who's to say that they couldn't have sold more (or the same number with less deal fatigue) with clear and concise contract language?

False ideas and fanciful conspiracies aside, we are left with this truth, so well put by Justice Ruth Bader Ginsburg: "The law should be a literary profession, and the best legal practitioners do regard law as an art as well as a craft." Designing sleek, innovative airplanes (and cars and boats and rockets) is an art too. It's time that the purchase contracts for these marvelous machines join the team!
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