The Option Syndrome
I have invented a new concept called the Option Syndrome. I hope the expression will catch on and people will start using it. It refers to the never-ending thickening of legalese.
Why the Option Syndrome?
Friends of The American Scene might remember that I graduated from law school but decided not to be a lawyer, and therefore never passed the bar. I usually say this makes me just enough of a lawyer to be a pain in the ass, but not enough of one to be actually useful.
Our law school library was stocked with law review archives dating back a couple of centuries, and when I was studying and needed a mental health break, I would wander around the library and pick an ancient book at random and start reading. This was an intense pleasure, because unlike lawyers and legislators today, French lawyers and legislators of back in the day knew how to write.
Stendhal, one of the great 19th century novelists of the French pantheon, once said that he would read the French Civil Code (somewhat erroneously referred to in the English-speaking world as the Napoleonic Code) as stylistic inspiration.
Of course, today there are still plenty of great legal minds who are also excellent craftsmen of prose, and a joy to read. But the overwhelming majority of legal documents involve redundant, unnecessary, overwrought, undecipherable legalese.
Just try to read the terms of service to the next website you subscribe to. You’re never quite sure if they’re going to be able to buy your newborn from you.
This is destructive. It increases transaction costs (to an eye-popping extent in the US) for everyone, and also raises real questions of democratic accountability, insofar as the law is supposed to be the expression of the general will, and it is hard for the people to oversee their representatives when the understanding of the laws belongs more and more to a learned elite.
So in order better to identify, and therefore combat this phenomenon, I’ve dubbed it the Option Syndrome. Why the Option Syndrome?
Because, wherever you look, an option is defined as “the right, but not the obligation,” to buy or sell an asset at a certain date and a certain price. But of course, by definition, if something is a right, then it is not an obligation. Yet you will never see an option defined as a right. Always “the right, but not the obligation.”
Ergo, the Option Syndrome.
Go forth and spread the meme!
EDIT: This WSJ op-ed, “You Commit Three Felonies A Day,” is quite related.
Interesting tidbit: many of these vestigial legal phrases, especially reflexively doubled phrases like “cease-and-desist,” have their origin in the interface between English and French legal culture. After the Norman conquest, and later with the rise of French as the language of the educated, lawyers invented these stock phrases to make absolutely sure that everyone got the message. Often in these doubled phrases, one word will have an Anglo-Saxon etymology and the other will have a French or Latin etymology—the idea being, I guess, that people on both sides of the Channel would have a clear understanding of what they were agreeing to. It’s all a form of linguistic ass covering.
Of course, you’re right that at some point legal language passed beyond the archaic and into the truly ludicrous. I don’t know about your suggestion — I think it conflates a few different forms of harmful legalese — but I applaud the spirit behind the idea.
— salacious · Sep 27, 01:15 PM · #
Interesting!
I don’t have much of a suggestion, though, except of a phrase to refer to an already existing phenomenon.
— PEG · Sep 27, 03:13 PM · #
I can see why you decided against becoming a lawyer. You made the right choice.
“The right, but not the obligation to buy” is just an example of some lawyer decades and decades ago covering all his bases. He explicitly states that there is no obligation to buy, just to make things clear as clear as possible. No one has to think about the definition of a “right” and determine that lack of obligation is implied. This long dead lawyer was making the language easier to understand and trying to wring any possibility of ambiguity out of it. Just the opposite of what you are talking about.
And the reason you see it everywhere as the definition of an “option” is becasue this phrase has been tested in court and courts have agreed on what it means. So if I am writing a contract I can insert this boilerplate (yes, this is what boilerplate is) and not have to worry—becasue of the principal of precedence—about some judge deciding that it means something other than what I think it means. That is a boon to myself and my client and the courts. No one has to argue this point. It decreases “transaction costs” (talk about jargon), rather than increases them, as you assert.
I support clear legal language (clear language in general)—especially in agreements that the public are supposed to read and understand—but I think you need to refine your arguments a bit.
— cw · Sep 28, 02:07 AM · #
cw: you’re absolutely right about why option is defined as “right, not obligation” — but that’s the point. This abstruseness makes sense at the micro level: you always want to cover all your bases, and all your client’s bases. But at the macro level it generates huge costs.
Sure, phrases like “right, not obligation”, “cease and desist”, etc. are now terms of art and it would exact a higher cost to switch to something else than keep using them, but shouldn’t a line be drawn at some point?
— PEG · Sep 28, 08:19 AM · #
First, sorry to be snarky. I know it’s wrong but I can’t seem to help myself sometimes. I’m am an idiot. I have accepted this fact.
Second, this is something I am really interested in. Jargon has it reasons both positive and negative. Academic jargon is as bad in principle as legal jargon. It’s a peacock display of esoteric knowledge designed to elevate the learned above the unlearned. At the same time, people working narrow areas of knowledge need to create words for common concepts relevant to that area of knowledge so that knowledgeable can easily discuss their knowledge amongst themselves.
So I think it comes down to who the audience is. If I am writing for a general audience, and my purpose is to communicate clearly (rather than to intimidate or awe or obfuscate), then I need to forgo the jargon. In the legal world, I think this means contracts that lay-people are supposed to read and respond to (like when you register software or agree to terms of use) should be written in everyday language. States mandate this for things like mortgage applications and insurance. But it seems like the common language has to refer back to the legal language somehow, so we have the security of having established definitions. If this were France, the government could set up bureau to create official translations of legal phrases into common speech. It would move very slowly and when they were done their work would be decades out of date. Here, the legal profession would lobby reletlessly to stall, pervert, and prevent. Although, like I say, there are state mandates for everyday languge in certain contracts.
I still don’t think “Option Syndrome” is a good descriptor for this problem.
— cw · Sep 28, 03:41 PM · #
I’m not saying jargon, and especially legal jargon, is entirely useless. Terms of art are always necessary to a serious discipline.
But linguists traditionally say jargon has three uses: inclusion (showing who is part of the “tribe” that uses the jargon), exclusion (showing who is not part of the tribe that uses it), and comprehension (conveying information).
So this “legitimate” use is only one small aspect of how jargon is used. And that’s fine if the tribe you’re referring to is poststructuralist philosophers or Williamsburg hipsters.
But it becomes a problem when it’s used by a tribe like lawyers, since the law plays such an enormous role in society. And this problem exacts huge costs, both economically and politically.
And this is all the more problematic that this is true whether it’s intended or not. I don’t think there’s a secret conspiracy by a cabal of lawyers to use their profession to hold society hostage. But I do think a set of misplaced incentives have led us to this unfortunate situation.
In terms of game theory, think of it as an arms race, which is a negative sum game. When the incentives point to a certain direction, it can be rational to play a negative sum game, even though it leads to a bad outcome for everyone. That’s the situation we’re in. An arms race, with polysyllabic words instead of SS-20s.
Put another way, I’m not saying jargon is always costly and should be eliminated altogether (even if it were possible). I am saying that the proliferation of legal jargon has very costly side-effects, and that more people (lawyers and non) should be aware of these so they can be kept in check whenever possible. That doesn’t strike me as too unreasonable.
As for the name Option Syndrome, you’re welcome to suggest an alternative.
— PEG · Sep 29, 10:10 AM · #