Wednesday, October 16, 2013

The Confusion on Contracts: Bureaucratic Style Critique

Margaret N. Kniffin, the author of  “Conflating and Confusing Contract Interpretation and the Parole Evidence Rule: Is the Emperor Wearing Someone Else’s Clothes?” is a professor of Law at St. John’s University School of Law. Her article, written for the Rutgers Law Review, was intended for an audience who is interested in political science and economics. Moreover, those who are interested in understanding the confusing aspects between “contract interpretations with the parole evidence rule.” She laments about the “injustices that occurs in the courts, as well as, eminent scholars” in drafting and designing these documents. This sounds like a noble cause, and through her prose style creates a piece that has reasonable readability scores. (See Table 1) However, in attacking others for verbose definitions, she inadvertently uses the official style and fails in bringing any greater comprehension to the issue. Kniffin writes a piece, influenced by bureaucratic prose, to appeal to academic standards of scholarly research.
Her first strategy is to provide clarification on the issue of contract law and the parole evidence rule. Confusingly, she introduces her essay with extended metaphors and confusing images. One reoccurring motif seen in her article is that of the Emperor and his new clothes. She uses that story to bolster her definitions of contracts and parole rule. However, she takes a spin on the story and adds a co-protagonist. She describes both an emperor and an empress.
            “Let us assume that the Emperor and an Empress share power equally. Each one     can         represent, therefore, either contract interpretation or the parole evidence rule,   two currently and historically distinct concepts...”
It’s essentially the same childhood story, but with a twist. Both individuals or concepts act in the manner of the original protagonist of the story. This extended metaphor is not needed. It is a stylistic choice that creates unneeded confusion. Would the “average American reader” understand that references? Yes, her intended audience would, but others would not. Essentially, if the reader doesn’t understand the metaphor, the rest of the essay is useless.
            Evidence of official style elements rears its ugly head throughout Kniffin’s essay. In this piece, this strategy is used to establish ethos, and satisfy an unwritten law of academic writing. This law states: the only way to sound intelligent is to write using high-grade word choice. An example from the text is: “Those courts that have conflated or interchanged the two processes have, as a result, in many instances excluded evidence that otherwise would have been admitted or, conversely, admitted evidence that otherwise would have been excluded – thereby producing injustice.” Simply put this quote says: “From time to time, the court has confused contraction interpretation with the parole rule.” Using the official style adds two times as many words, leading to more chance of confusion. In this example, a sentential adverb, unneeded modifiers, and unneeded coordination aid in bringing misunderstanding.  Ironically, her purpose is to bring understand, however, within her prose she uses euphemism and jargon that confuses readers. The expected use of the bureaucratic prose style, in academia, shrouds the simplicity of this meaning in a verbose sentence.
Academia clings and praises the bureaucratic prose style. This can be seen through Kniffin’s excessive use of this style of prose. She uses this style because as a member of this community, she must project this ethos. Academia primarily uses official style to convey credibility, intelligence, and superiority upon its audiences. In acknowledgement, her intended audience is not the mythical “average American reader.” Rather the activity system most active and influential in her audience is one born and christened in the art of the official prose style. Caught in a conflict between individuals who expect her to write one way, and her goal off bringing enlightenment on the issue, she concedes to the former. As an academic scholar writing for a Law Review, certain elegance is expected in word choice, diction, and overall syntax. Through use of this style she alienates other readers. Specific, and learned strategies of the official style are evident in Kniffin’s essay as well. These learned strategies are byproducts of expected academic work. In appealing to this intended audience, she causes a dissonance with other activity systems. Communities of individuals who seek knowledge on the issue, “average American readers” and, arguably those who even hold prerequisite knowledge still leave unsatisfied. At what point does one criticizes her own crusade as being ironically the same thing she despises.
Academia is a huge proponent of the official style, however, intentional confusion is not part of the ideals. Greater specialization in academia breeds specific and obscure words. These specific and obscure words are then used in essays and other academic texts. In certain instances these specific words are needed. However, in other instances it inhibits understanding. In some instances this strategy is imperative, however in the vast majority it is not. Reaffirming journals, which only accept bureaucratic style, feeds this mentality. In the end, the bureaucratic style remains because it symbolizes intelligence and specialization. Kniffin, in her essay is appealing to these roles. False myths affirm that authority figure must articulate in this capacity. She does not understand that the use of this language is not needed. Greater understanding would be achieved by using a simpler strategy. This would truly result in truly bringing understanding to the parole evidence rule and contracts.

Table 1. Readability Statistics for Kniffin Text
Unit of Measure
Flesh-Kincaid Reading Ease
Flesh-Kincaid Grade Level
Smog Index
Average Grade Level
Words per Sentence

E. Clyford

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