From Black Codes to Recodification

Removing the Veil from Regulatory Writing

Miriam Williams

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351844208
• Edition: 1
• Topic: Psychologie
• Subtopic: Santé mentale en psychologie

First Published in 2017. This book examines Texas regulations dating as far back as the Texas Black Codes of 1866 to contemporary Texas Child Care Licensing regulations. It presents case studies that test contemporary African American perceptions of various styles of regulatory writing.

CHAPTER I
Introduction: Race, Regulations, and Trust

In The Souls of Black Folk (2003), W. E. B. DuBois wields two of the most powerful metaphors of the Gilded Age, the “veil” and the “color line.” In this work, DuBois, a sociologist, provides sociological and historical accounts of African American life after Reconstruction. Recurring throughout DuBois’ essays in The Souls of Black Folk, whether political, sociological, or biographical, are his references to the impact of the “veil” and “color line” on African American life, and how “black folk” across socioeconomic and regional lines have responded to the realities of living in a society with a legally protected color line. Emory Elliot further explores these metaphors in his article, “The Veil, the Mask, and the Invisible Empire: Representations of Race in the Gilded Age” (1989) and provides evidence of how language was used to veil discriminatory practices against African Americans in the dissemination of one of America’s more treasured art forms, literature (pp. 11–17). Elliot rests on Houston Baker’s description of DuBois’ veil—"a barrier of American racial segregation that keeps Afro-Americans always behind a color line—disoriented prey to divided aims, dire economic circumstances, haphazard educational opportunities and frustrated intellectual ambitions”—to support his argument (cited in Elliot, 1989, p. 16). Much of Elliot’s article examines how race was portrayed in the works of Herman Melville and white authors, including Mark Twain, who examined race relations in a more realistic context than most white authors (pp. 12–14). Elliot’s main argument is that white authors, including Herman Melville, may have veiled characters such as Billy Budd and Claggart in allegory to steer clear of the political ramifications of painting a realistic image of racism in America (p. 13). While Cornell West (2004) regards Melville’s works as “an unprecedented and unmatched meditation on the imperialist and racist impediments to democracy in American life,” (p. 87), Emory Elliot asks, “Is it possible that in the 1880’s and 90’s even Melville had to insinuate the racial implications of his work in such subtle ways that they are nearly invisible?” (1989, p. 13).

Melville’s need to veil antislavery rhetoric in allegory could be linked to his familial relationship with one of its strongest proponents; West explains that Melville’s father-in-law was “the judge who sustained the Fugitive Slave Act that was a catalyst for the Civil War” (2004, p. 48). According to Elliot, the color line helped shape the figurative language we find in some of our most highly regarded literary works (1989, p. 15). Certainly, if we examine the rhetorical situations surrounding the invention of these works, we’ll find that African Americans were not considered as members of the audience who read these works, and thus it was easy to distort their images and reality. During this same period, in government laws and regulations, the Western style of writing, which has rhetorical roots dating as far back as ancient Greek and Roman societies, created the perfect construct for a similar veil that masked discriminatory laws and ordinances in detached, complex, and jargon-filled language that we now call “legalese.” I am not arguing that legalese was used to evade any powerful voices of African Americans, many of whom could not read or obtain legal texts, but I am arguing that the style of writing used in historical regulations directed at African American audiences served the same purpose as Melville’s allegory. While Melville’s allegory served as a veil to his attacks on racism in America, regulatory writing veiled consistent attacks on the civil rights of African Americans. During this period in American history, language was used to veil mentions of race and racial discrimination in both literature and law. While Emory Elliot explains that there was an “absence of race from American text [literature] in the period” (1989, p. 15), Barry Crouch adds that Texas Black Codes of 1866 “appeared to ignore race” (1999, p. 264). Still, we know that racially discriminatory laws and regulations directed at African Americans were promulgated from Antebellum to Jim Crow. David Bernstein (2001) noted the continuation of this writing style throughout the southern states and argued, “facially neutral occupational regulations passed between the 1870s and the 1930s harmed African Americans. Sometimes racism motivated the laws, either directly (as when the sponsors of the legislation were themselves racists) or indirectly (when legislative sponsors responded to racism among their constituents)” (p. 5) (Crouch, 1999, p. 264). These authors suggest that writers of Texas Black Codes and labor regulation writers after Reconstruction used veiled language to intentionally mask discrimination against African Americans in regulations. Thus, the “racially neutral” style of labor regulations that intentionally hid the intended black audience was an official veil that perpetuated African American “disorientation, dire economic circumstances, and frustration” that defines DuBois’ color line (cited in Elliot, 1989, p. 16). Now, decades after the dismantling of most legalized discrimination against African Americans, ambiguous regulations persist and in this book, I posit that many historically marginalized groups, including African Americans, are resistant to the traditional style of regulatory writing, not because they cannot read regulations or hire attorneys to interpret these texts, but because written laws represent a veil that for so many years acted as a rhetorical accomplice to America’s color line. Although regulatory writing has a long history dating back centuries before America and its laws, regulations like the Texas Black Codes and post-Reconstruction labor laws have so tainted the African American audience’s perception of legal discourse, that regulations are perceived, not simply as the traditional style for this genre, but as a style that evokes distrust.

Traditional Styles of Regulatory Writing

Concerns for regulatory writing invention and style did not begin with Barry Crouch or assessments of the intent of Texas Black Codes, which were obviously in conflict with the language used to convey the law, but with classical rhetoricians who also debated these issues with particular emphasis on the roles of clarity and ambiguity in regulatory writing. Before we can look for a style of regulatory writing that evokes trust, we must examine the goals of regulatory writers. In Rulemaking: How Government Agencies Write Law and Make Policy, Cornelius M. Kerwin argues, “writers have three distinct goals for writing regulations, to implement, interpret and prescribe” (1994, p. 5). Kerwin states that regulations “interpret when law and policy are well established but confront unanticipated but changing circumstances,” “prescribe when Congress establishes the goals of law or policy in statutes but provides few details as to how they are to be put into operation,” and “implement when law or policy has been fully developed in Congress, an executive order of the president, or judicial decision” (pp. 5–6). There are inconsistencies as well as intersections between Kerwin’s goals for regulatory writers and the styles of writing advocated by proponents of the user-centered Plain English style and the traditional “legalese” style.

Since both Technical Communication and Public Policy research depend on classical rhetoricians for insight into the invention of democracies and the laws that govern them, it is important to begin our examination into regulatory writing by discussing their early contributions to this genre. The classical rhetoricians provide us with no consensus regarding the most appropriate style for writing laws in ancient Greece and Rome. In The Laws, Plato uses a dialogue between Cleinias and the Athenian to argue for specificity in written laws and suggests that ambiguous words must be defined in laws. In this dialogue the Athenian states, “But you ought not to use the term ‘moderate’ in the way you did just now; you must say what ‘moderate’ means and how big or small it may be. If you don’t you must realize that a remark such as you made still has some way to go before it can be law” (1970, p. 181). In The Orator, Cicero argues that conflicts arise “out of the construction of a document, wherein there is some ambiguity or contradiction, or something is so expressed that the written word is in variance with the intention” (1988, p. 99). Cicero reiterates this point in The Laws while simultaneously contradicting Plato’s argument about specificity that leads to confusion. In Cicero’s The Laws, he criticizes legal experts by stating, “But legal experts, whether to cause confusion and so give the appearance of having a wider and deeper knowledge than they do, or (more probably) through their incompetence at putting the subject across (for an art is not just a matter of knowing something; it is also a matter of communication) often endlessly subdivide a thing which is based on a single idea” (1998, p. 141). Here, we find both Plato and Cicero arguing against ambiguity; Plato argues for clarity through meticulous definitions or subdivisions as we find in legalese, while Cicero argues for further clarity through the avoidance of Plato’s definitions and subdivisions, which manifest in complex clauses and lengthy sentences. Cicero’s suggestion is also supported by Plain Language advocates. In contrast to both Plato and Cicero’s views, in On Rhetoric, Aristotle asserts that “If, then, the action is undefinable when a law must be framed, it is necessary to speak in general terms, so that if someone wearing a ring raises his hand or strikes, by the written law is violating the law and does wrong, when in truth he has [perhaps] not done any harms, and this [after judgment] is fair” (1991, p. 105). In his usual manner, Aristotle considers occasions where the opposite may also be appropriate when he states “[it] is highly appropriate for well-enacted laws to define everything as exactly as possible and for as little as possible to be left to the judges” (p. 31). In the first quote, Aristotle argues for a style of legal writing that leaves room for ambiguity and interpretation so that regulations are still enforceable when the unforeseen crime or illegality occurs, but in his second quote he claims that there are situations when regulations should be as specific as possible. These statements, like Aristotle’s common places, are evidence of his advocacy for considering the “available means of persuasion in each case” (p. 35).

Other recommendations from classical Greek rhetoricians that do not speak directly to the writing of laws or regulations, but do pertain to the appropriateness of certain styles of writing given specific situations are found in Demetrius’ On Style. George Kennedy describes Demetrius’ work as the “earliest surviving monographic treatment of style in which Demetrius discusses the plain, grand, elegant, and forceful” styles of rhetoric (1994, p. 89). In yet another discussion of these types of style, the author of Rhetorica ad Herennium Book IV, whom Kennedy states is possibly Cornificius or Cicero but is often credited as “Anonymous,” discusses three kinds of style: the grand, the middle, and the simple. In this text, the author states that “the grand style consists of smooth and ornate arrangement of impressive words” appropriate for appeals to pity and amplification, “the middle consist of words of lower, yet not of the lowest and most colloquial class of words” and “the simple type is brought down even to the most current idiom of standard speech” (Bizzell & Herzberg, 2001, p. 248; Kennedy, 1994, p. 121). More importantly for this study, the classical rhetorician argues “clarity renders language plain and intelligible. It is achieved by two means, the use of current terms and of proper terms. Current terms are such as are habitually used in everyday speech. Proper terms are, or can be, the designations specifically characteristic of the subject of discourse” (Bizzell & Herzberg, 2001, p. 248). In this statement, the author does not explicitly equate clarity with the simple style, but suggests that clarity and the simple style do share one feature, “current terms,” whereas “proper terms” are not necessarily a part of the simple or plain style.

These classical rhetoricians give us four stylistic choices for regulatory writing: (1) Plato suggests that regulatory writers be very detailed in an effort to avoid ambiguity; (2) Cicero tells regulatory writers to be clear and brief to avoid ambiguity; (3) Aristotle suggests that regulatory writers be general, even ambiguous, to allot for unexpected circumstances, but also states that there are situations where specificity is appropriate, yet he stops short of arguing for clarity; and (4) the author of Rhetorica ad Herennium defines clarity as more than plain language, but correct and specific language. The intersection of these recommendations, three of which pertain specifically to written laws, is clarity—while some suggest means of achieving it, others attempt to define it or avoid it entirely. While Plato and Cicero take a more positivist approach, Aristotle seems to rest on a postmodern perspective of written laws in that he does not argue for clarity (Walzer & Gross, 1994, p. 421). In “Positivists, Postmodernists, Aristotelians, and the Challenger Disaster,” Arthur E. Walzer and Alan Gross argue that technical communicators who analyzed the Challenger space shuttle disaster relied on three forms of analysis: a positivist approach, which suggests that the disaster occurred because information was not clear or transparent; a postmodern approach, which suggests that in the debates leading up to the disaster “no ‘facts’ speak for themselves; meaning comes only with interpretation; language can never be a transparent medium of reality,” and an Aristotelian approach that considers that there could be more than one possible argument or rationale for the disaster (p. 422). Walzer and Gross propose that the most appropriate type of analysis for understanding the disaster would be a rhetorical analysis or an Aristotelian analysis that examines two possibilities, and they quote Aristotle in stating that “the purpose of rhetorical deliberation is to discover the best available means of persuasion” (p. 426). Certainly, Aristotle’s suggestion for regulatory writing to leave room for other possibilities and also to be as specific as possible does not contradict Walzer and Gross’ interpretation of an Aristotelian perspective.

Given the goals of regulations, which Kerwin states are to implement, interpret and prescribe (1994, p. 5), we can surmise that regulatory writing calls for different styles and perspectives, depending on the purpose of a particular regulation. The first goal in regulatory writing is to “interpret when law and policy are well established but confront unanticipated but changing circumstances” (p. 5). To meet the demands of this goal, we can rely on one of Aristotle’s suggestions, which is to apply general and vague language to allot room for the unexpected violations. The second goal of regulatory writing is to “prescribe when Congress establishes the goals of law or policy in statutes but provides few details as to how they are to be put into operation” (p. 5). In meeting this goal, the regulation writer is charged with adding more specific language or definitions as proposed by Plato and also Aristotle (in his second recommendation), employing a positivist perspective. Finally, the third goal of regulatory writing is to “implement, when law or policy has been fully developed in Congress, an executive order of the president, or judicial decision” (p. 5). In such cases, where the regulatory actions are “fully” explained by some other authorizing body, whether it be Congress or the executive or judicial branches, agencies would be justified in simply revising or clarifying these inherited mandates into regulations and applying the definition of clarification provided by the author of Rhetorica ad Herennium: “the use of current terms and of proper terms” to aid in the delicate tasks of policy implementation (Bizzell & Herzberg, 2001, p. 248). In this case, regulatory writers must resort to a postmodern perspective in that “proper terms” are subjective. Clearly, these suggestions are an amalgam of the recommendations made by proponents of the Plain English style and the legalese style. The classical rhetoricians argue that, depending on the situation or goal of the writer, there is a time and place for various styles of regulatory writing.

Although the classical rhetoricians were concerned with regulatory language, intent, and kairos and it is obvious that their recommendations influenced the Western tradition of regulatory writing, the consideration of written laws that evoke trust or distrust in historically marginalized groups is a 20th-century phenomenon.

Contemporary Arguments for Plain English Regulations

In 1998, Vice President Gore announced the Plain Language in Government Writing Executive Memorandum, issued by then-President Bill Clinton and later attended a Plain English awards ceremony where Gore explained, “Plain language helps create understanding, and understanding helps create trust. And trust—especially trust in the promise of self-government—is essential to solving the common problems we face” (Gore, 1998, p. 1). As a result of the Plain Language in Government Writing Executive Memorandum, the Plain English Movement officially resurfaced in the United States government at the federal and states levels (Plainlanguage.gov, 2005). Now, although proponents of Plain English are targeting federal agencies, they are finding support among many state legislators as well. In some states, elected officials have promulgated laws that mandate the rewrite of thousands of regulations, forms, letters, and Web site materials in Plain English. Federal and state agency officials are looking to scholars to define Plain English and to teach public-policy writers how to translate complex legal documents from legalese to Plain English.

In 1999, during the 76th Texas legislative session, the state legislature passed Senate Bill 178, which required a review of all agency regulations to determine if the rationale for promulgating them still existed; this bill served as an impetus for several state agencies to begin not only a review of agency regulations but a rewrite of regulations from legalese to Plain English to increase readability and to decrease ongoing criticism from the public and state legislators. One agency division, the Texas Department of Family and Protective Services’ (formerly known as Texas Department of Protective and Regulatory Service) Child Care Licensing Division, initiated a massive rewrite of its agency rules that continues today and serves as a model for other agency rule rewrites.

Two years later, during the 77th Texas Legislative Session, a State of Texas legislator drafted a bill proposing that readability tests be used to evaluate state regulations and publications. This bill, House Bill 3411, included a proposed readability formula that if passed would require state agencies to rewrite all regulations that did not meet the readability standards in the proposed bill. Ironically, the proposed bill, which was critical of state agencies’ use of complex style, included less-than-citizen-friendly language in its clause—the process of testing and rewriting the regulations was called “recodification” and the bill was written in classic legalese. The recodification bill died in committee within weeks of its proposal, but the negative perceptions about regulatory writing that inspired the bill persist.

In an effort to dispel these negative perceptions, some Texas agencies currently making the transition from legalese to Plain English began their rewrites without conducting quantitative or qualitative research regarding the effectiveness of Plain English regulations and without evaluating which style of writing is actually preferred by their audiences. Still, in most state agencies in Texas and nationwide, there is consensus; Plain English is better, and few public-policy writers or legislators question this unempirical assessment. In this book, I present case studies that (1) present a historical argument for why African Americans are distrustful of regulatory writing, (2) evaluate contemporary regulatory writers’ perceptions of their writing styles and audiences, and (3) test contemporary African American perceptions of two styles of regulatory writing. My rationale for selecting African American laborers and business owners as my sample group is not based on the percentage of businesses owned by this group but on this group’s history of advocacy against discriminatory laws. I am suggesting that if government agencies can make rhetorical choices to evoke trust in regulations among African Americans, a group that has a history of political disenfranchisement by government entities and regulations, similar rhetorical and user-centered strategies could be used to evoke trust to an even wider, more accommodating audience.

To this end, this book examines Texas regulations dating as far back as the Texas Black Codes of 1866 (some of the most deceptive regulations in Texas history) to contemporary Texas Child Care Licensing regulations, which quite possibly symbolize some of the most audience-friendly contemporary regulations Texas has to offer. This book also examines the contemporary African American audience, an audience that scholars from political science, categorize as an audience that is distrustful of the government (National Public Radio, 2000, p. 1). My rationale for looking at two extremes of regulatory discourse spanning years of Texas history is to highlight regulatory invention and style in a relatively closed system from 1866 to post-Reconstruction labor regulations, where public comment and input from the true public was not obvious for some, and our current means of inventing regulations in a somewhat open system, where public comments and public opinion about the content and styles of regulations is more obvious. Just as clinical trials test patient responses to new medications during various stages of an injury or illness, the case studies presented in this book test the effects of contemporary Plain English translation on ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• ACKNOWLEDGMENTS
• CHAPTER I. Introduction: Race, Regulations, and Trust
• CHAPTER II. Case Study I—Texas Black Codes of 1866: Identifying Discourse Markers of Trust
• CHAPTER III. Texas Laws and Tacit Laws: Redefining Black Labor from "The Nadir" to Civil Rights
• CHAPTER IV. Case Study II—Texas Agencies: The Challenge of Evoking Trust
• CHAPTER V. Case Study III—Contemporary Black Business Owners: Legalese, Plain English, or Both?
• CHAPTER VI. An Invention Heuristic for Regulatory Writing
• APPENDICES
• REFERENCES
• INDEX