Recently, Professor Sovern replied to our blog post that commented on the letter that he and 160 other law academicians submitted to the CFPB in support of the pending Petition for Rulemaking that would prohibit pre-dispute consumer arbitration clauses and permit only post-dispute clauses.
In response, we would like to acknowledge that two of Professor Sovern’s statements are accurate. First, as he surmised, the arbitration language we offered as an example of understandability is not the complete arbitration clause. It is simply an initial disclosure that precedes the substantive text of the clause. Second, we sincerely appreciate his compliment that we are brilliant lawyers. Aside from that, Professor Sovern’s reply completely misses the mark.
Professor Sovern judges readability through the lens of the Flesch-Kincaid Grade Level test. Unlike most tests—for example, a 98% score on one of Professor Sovern’s law school exams—a higher score produced by the Flesch-Kincaid algorithm (which he says our paragraph received) supposedly means the language is harder for consumers to understand. However, that test has been characterized as “flawed” and “inherently unreliable” because it uses two metrics to grade written content: words per sentence and syllables per word. But “the difficulty of the English language doesn’t follow these metrics,” since “[l]ots of advanced, college-level words have one or two syllables,” while “[p]lenty of basic words have four or more.” For example, “[w]e all know what a refrigerator is. Few of us know what legion means, when it is used as an adjective.”
Moreover, we provided the paragraph as an example of disclosure language that is meant to capture the reader’s attention, convey the message that this is important and communicate some top-level information. Hence, the use of ALL-CAPS and boldface type. The first sentence, “READ THIS ARBITRATION PROVISION CAREFULLY,” is certainly not difficult to understand, even under Flesch-Kincaid standards. Professor Sovern acknowledges that he did not actually test our sample paragraph by giving consumers a pop-quiz after they read it, but we hope that most consumers would at least come away with an understanding that they have a right to “REJECT ARBITRATION,” that the clause will have a “SUBSTANTIAL IMPACT” on the way that “CLAIMS AND DISPUTES” concerning their “ACCOUNT” are resolved, and that in arbitration they “WILL NOT HAVE THE RIGHT TO A JURY TRIAL” or a “CLASS ACTION.” Assuming these conspicuously presented headline terms catch the consumer’s interest, he or she can proceed to read the details in the rest of the arbitration clause.
In any event, given the contention in Professor Sovern’s CFPB comment letter that “few consumers read the boilerplate contracts that include arbitration clauses,” why is he even concerned about the Flesch-Kincaid test? “Readability” only matters if someone is reading. Rather than spending time on arcane and questionable analyses that lack practical value, Professor Sovern and his colleagues should join us in urging the CFPB to help educate consumers about dispute resolution. Parties on both sides of “the arbitration debate” (Professor Sovern’s phrase) should be on the same side when the issue is educating consumers to read the contracts they enter into.