Ethical and Legal Concerns Associated With the Comprehension of Legal Language and Concepts

Abstract

Because numerous standards and ethics rules underscore the importance of language and communication within the legal process, the inability to successfully comprehend legal language is a pressing concern, particularly because many populations that are overrepresented within legal systems typically show problems with language and communication. In order to better describe the nexus between language comprehension and the law, therefore, I identify four hierarchical aspects of legal language and concepts that may challenge the language-comprehension processes and impede comprehension: (1) the challenge to “lower level” cognitive functions; (2) the demand for inferences; (3) the need for complex situation models; and (4) the idiosyncratic nature of legal language's text “genre.” Using common examples of black-letter law, I examine how these four aspects might create legal problems and ethical concerns for both the adjudicated individual and the representing attorney. This analysis should be a valuable first step in allowing the neurolaw and bioethics fields to better identify and research these important ethical dilemmas.

Keywords:

• language
• language comprehension
• neuroethics
• neurolaw

ACKNOWLEDGMENTS

This work was supported in part by the National Center for Medical Rehabilitation Research (NCMRR) of the Eunice Kennedy Shriver National Institute of Child Health and Human Development (NICHD) under Grant R01 HD071089 (PI L. Turkstra). The author would like to acknowledge and thank Dr. Lyn Turkstra and the Communication and Cognition Lab, the University of Wisconsin–Madison's Neuroscience Training Program, and the University of Wisconsin–Madison's Neuroscience and Public Policy Program. ▪

Notes

1. For consistency and readability, this article uses “his/him” to refer to the individual comprehending the LLC (the client and/or defendant) and “she/her” to refer to the lawyer. This choice of pronouns is arbitrary and is in no way intended to imply gender/sex roles or biases.

2. For an excellent summary of these computational models, see McNamara and Magliano (2009). I rely on terminology from the Construct-Integration Model (Kintsch 1988).

3. Note also that (as is likely the case for almost all legal contexts) the stress and pressure of the setting itself can place additional demands on memory and attention (Lupien, Maheu et al. 2007; Lucassen and Oomen 2016). Additionally, the power dynamic between the comprehender and the attorney/judge may create unequal speaker rights, which brings a set of additional concerns, including suggestibility and acquiescence (Wilson 1989). While these additional considerations may not be a linguistic quality of LLCs per se, they undoubtedly influence LLC comprehension for the average individual in average legal contexts.

4. Social cognition is an umbrella term referring to the cognitive functions that encode and decode social stimuli. Generally included within social cognition are emotion recognition, theory of mind, perspective taking, and moral-based cognition (Beer and Ochsner 2006; Adolphs 2009).

5. As a thought exercise, consider these two very simple sentences: “I was in the office today” and “I was in court today.” I suspect that the second sentence poses a much, much steeper challenge for constructing an accurate situation model than the first.

6. Relatedly, the comprehender may likely be unable to monitor his own situation model. The need for cognitive self-monitoring, or metacognition, is a critical component of comprehension (Wagoner 1983; Singer 2013; Perez, Cain et al. 2015), and any sort of metacognitive regulation is likely to be difficult when the comprehender doesn't know what he doesn't know. Metacognition (or lack thereof) likely affects all steps of language comprehension, so its role in LLC comprehension should not be understated.

7. It is further possible that optimal comprehension of LLCs requires a dedicated comprehension “mode”: Scholarship suggests that the brain is able to prime comprehension for various language genres, such that one genre of text is preferentially comprehended (Mesulam 2002; Powers et al. 2012). Consequently, an LLC comprehender may need to be able to use a dedicated “legal language” mode of comprehension that can facilitate the creation of these complicated, multigenre situation models.