Wednesday, September 29, 2010

In Re E.O. (Cal. Ct. App. - Sept. 29, 2010)

I want to say two things about this opinion.

First, I understand that we don't want a high school student bringing a folding knife to school.  But why are we requiring as a condition of probation that he not go within 25 feet of a courthouse unless he's a party or witness? Seems to me like we want people to learn more about the justice system, not less.  I'm glad the Court of Appeal reverses the condition.

Second, I like (and appreciate) Justice Rushing's ancillary discussion that mentions that probation conditions should be written clearly, and without excessive legalese.  Especially, as here, in cases involving juveniles.  He's clearly right.  We should make the effort in that regard, and often don't.

Nonetheless, I can't leave without comment the manner in which Justice Rushing "scores" the readability of the probation condition here.  Justice Rushing, in a footnote, gives an alternative that I agree is much clearer to the average reader than the condition imposed by the trial court.  But to prove it, he uses an online scoring system for readability -- which is actually pretty neat -- and says that the trial court's condition has a grade level of 28 years whereas the Court of Appeal's formulation has a grade level of around 7 years.

The problem is that those "readability" scoring systems are way too simplistic.  Sure, maybe a seventh grader could indeed understand the Court of Appeal's condition.  But I don't think it would take 28 years of education to understand the trial court's.  For fun, I also scored the "Discussion" section of Justice Rushing's opinion.  The five scoring systems come out with an average grade level of 8.16.  Not bad at all.  Though I somewhat defy an eighth grader to really understand the thing.  It's tough enough to get 1Ls to understand stuff like that.

Footnote six of the opinion, to me, proves the problem.  Justice Rushing writes that "Clarity is possible even where the concept is complex."  Dropping a footnote that reads:  "The phrase 'Discretion, like the hole in a doughnut, does not exist except as an idea left open by a surrounding belt of restriction,' has a readability score of 10.74. The words are from R. Dworkin, Taking Rights Seriously (Harvard 1978) p. 31."

Now, I don't consider myself an absolute idiot, but I gotta tell you, when I read Dworkin, even I'm not totally sure what he's saying half the time.  Including but limited to the quote cited by Justice Rushing.  I'm pretty sure he's talking about discretion and the overarching limits of legal regulation.  But a lot of me remains confused.  And hungry for a doughnut.  That this sentence is scored as a 10.74 is a darn good indictment of the scoring system, and hardly support for a conclusion that clarity is eminently obtainable.

For example, what do I mean when I say:  "Pithy nodes of thought scale the grand wonders of life."  Pretty readable and clear, eh?  The scoring system used by Justice Rushing gives it an average grade level of 4.76.  Another darn good indictment.  Since if we're writing probation conditions -- or anything else -- that read like that, we're in trouble.

So I'm on completely board for Justice Rushing's sentiments.  But I'm gonna have to dissent from using the metrics upon which he relies.

Though citing Ronald Dworkin for the concept that clarity's possible continues to bring a smile to my face.  I bet that's the first time in history anyone's ever said that.  Much less in print.