© 2010 Kenneth A. Adams

You may copy and distribute without charge this publication’s table of contents, on condition that you include the above copyright notice in any copies.

You may not otherwise copy or distribute any part of this publication without the author’s permission, except as permitted by copyright law. This restriction applies not only to making paper copies for use by others but also to other forms of copying and distribution, including distributing this publication by email or by putting a copy online.

Direct any requests for permission to copy this publication to Kenneth A. Adams at [email address].

Copies of this book can be purchased at [URL] or by calling [phone number].

This represents a big improvement; I’m embarrassed to read the previous version!

Rather than list the various forms of legitimate copying that readers might engage in, I’m banking on those being covered by the carveout for copying permitted by copyright law.

I eliminated the unattractive “finger-wagging,” to use commenter Westmorlandia’s term. But I still say, albeit more gently, that improper copying doesn’t just mean running off photocopies.

I had contemplated saying “Restrictions against unauthorized copying are intended to ensure that authors and publishers are able to continue developing and distributing original works.” But it sounds a bit pious. And anyone who is unaware of the publishing facts of life is presumably not going to be swayed by a copyright notice.

GLOBAL firm Jones Day has poached Tony Wassaf from Allens Arthur Robinson and appointed him partner in the firm’s Sydney office.

The energy and resources specialist has more than 25 years experience in the sector and said he was keen to work for a firm that gave clients the best international expertise.

Sydney office partner in charge Chris Ahern said he was delighted Wassaf had joined the firm. “Tony has built an international reputation for his commercial focus, his ability to quickly identify issues and find solutions and his strength in contract drafting. He will help complement and enhance Jones Day’s world-wide standing in this vital economic area,” he said.

A big-firm partner being complimented on his contract drafting? I can’t recall ever having seen that in print. In the U.S., the general assumption seems to be that contract drafting is something you push as far down the food chain as possible. (See this March 2007 blog post for more about that.)

And on the same day as I saw that notice, someone who attended my Washington, D.C. seminar for West LegalEdcenter remarked how of all the lawyers around the world that he’s retained to work on his company’s contracts, the Australians were the sharpest.

So do Australians take their contract drafting especially seriously? Is the language of mainstream business contracts any less dysfunctional in Australia?

The final bit of text that I have to prepare is the copyright notice. Here’s what it would look like if I were to base it on West’s standard copyright notice:

Copyright © 2010 Kenneth A. Adams, All rights reserved.

Copyright law prohibits the reproduction or transmission in any form or by any means, whether mechanical, photographic or electronic, of any portion of this publication without the express permission of Kenneth A. Adams.

Kenneth A. Adams hereby consents to the copying of the Table of Contents ONLY of this publication for internal or personal use provided (1) copies of the Table of Contents are distributed at no cost, and (2) proper notice of copyright is affixed to each copy. This consent does not extend to any other kind of copying, such as copying any portion of this publication other than the Table of Contents for internal purposes, or for creating new collective works for resale.

All requests for permission to make copies of all or any part of this publication, other than the Table of Contents, should be addressed to:

But I can’t resist tinkering with prose. And given that The Structure of M&A Contracts will be available only as a PDF file, I thought it might be appropriate to have the copyright notice reflect the greater risk of illicit copying. So here’s what I came up with:

Copyright © 2010 Kenneth A. Adams

Copyright law prohibits you from reproducing or transmitting, whether by mechanical, photographic, or electronic means, any portion of this publication without the permission of Kenneth A. Adams.

Because this publication is available only as a Portable Document Format (PDF) file, it would be a simple matter for any purchaser to disseminate copies widely. But just as distributing photocopies of a book would violate copyright, it would be against the law for anyone who purchases this publication to forward it to anyone else without the copyright holder’s permission. And pilfering content makes it harder for authors and publishers to develop and distribute original works. This publication is readily available at a modest price—there’s no justification for illicit copying.

Kenneth A. Adams hereby consents to your copying and distributing free of charge this publication’s table of contents.

Direct any requests for permission to copy all or part of this publication (other than the table of contents) to Kenneth A. Adams. His contact information is as follows:

Would my version serve any purpose, or would I just sound like a scold?

By the way, I enjoyed omitting “All rights reserved” from my version. I always thought it sounded pointless; apparently I was right.

But it seems that I’m not the only one not writing reviews of legal texts, as opposed to reviews of general-interest or policy-based books about the law. No journal or blog reviewed the second edition of MSCD. And it has been years since I encountered in passing a review of any law book that I would be inclined to consult regularly. Of the few book reviews I do encounter, a large proportion are of the superficial “this is a useful contribution to the literature” variety.

As an objective test, I did an online search for recent book reviews in one likely outlet, the New York Law Journal. It yielded slim pickings.

There are of course Amazon reviews, but they hardly take up the slack.

A serious review written by someone knowledgeable in the field can be valuable. Relying on a legal text is necessarily a leap of faith, and most readers aren’t going to be in a good position to make an informed decision as to which voice they should heed in the clamorous marketplace of ideas. An informed review can reduce the amount of faith required of a reader.

So I think there would be a place for an online review of law books. It would be overseen by an energetic volunteer editor, and the reviews would be written by lawyers at law firms, company law departments, and law schools. Maybe two or three lawyers could write separate reviews of a given text, if it were significant enough.

I’m aware that dwindling reader interest and evaporating advertising revenues have killed off almost all book-review sections in newspapers. But that trend needn’t apply to a review of legal texts: Nothing constrains a general-interest reader from casting aside a novel in favor of television, social media, or browsing at the vast online buffet, but lawyers will always need legal texts, whether in print or online.

Thus far my involvement in LinkedIn groups has been limited. I’m a member of the tiny and moribund Contract Drafters group; I’m not inclined to attempt to breathe some life into it, as I have my own constituency for that topic. I’m a member of the Legal Blogging group, with its 4,429 members, but I’ve paid no attention to it—I long ago sorted out in my mind why I blog and how I wish to go about it, and if any issues crop up, I discuss them with a limited circle of contacts.

But what prompted this post is a third LinkedIn group, Contract & Commercial Management. It’s a large group (2,851 members), and an active one. You have to ask to join. IACCM is behind it. I recently joined when someone suggested that I might want to add my thoughts to a particular discussion.

The limited time I’ve been observing, and occasionally participating in, this group’s discussions have reinforced my views of what works and doesn’t work in such groups.

I find productive those discussions that are conceptual—the idea isn’t to establish what is the correct answer or the most efficient way to address an issue, but instead to sound each other out and exchange ideas. I’d put in that category a recent thread on “What is Contract Management?”

And I imagine that this group and others can be useful when you have a narrow question, or are looking for a specific piece of information, and you’ve come up empty after consulting other sources, from Google on up.

Furthermore, this group, like others, has a “Jobs” section that seems very active.

But I found less useful the discussions about specific contract provisions. Addressing in a meaningful way topics such as the implications of the phase consequential damages involves a level of complexity that LinkedIn discussions aren’t suited to. The result is that you get a bunch of thumbnail position statements, many of them inconsistent—ships passing in the night. And some of the comments advocate, with utter conviction, conventional wisdom that I long ago abandoned. It’s hard to know what a newcomer to a given issue is meant to make of the cacophony.

So when it comes to meaty substantive issues, rather than starting a discussion by asking, for example, what the difference is between best efforts and reasonable efforts, maybe it would be more productive to ask members to recommend an authoritative analysis of the subject.

In other words, I’m suggesting that experts are best placed to make sense of such topics. (I hope this doesn’t peg me as a hopeless elitist!)

I realize that the notion of experts is itself problematic. An expert isn’t someone who knows what they’re talking about, but someone who is perceived to know what they’re talking about. I take issue with much that ostensible experts have to say. But taking people with a track record of having thought about a given issue and having them battle it out in the marketplace of ideas is, I think, our best bet for enlightenment.

That leaves plenty of other stuff for LinkedIn groups and other flavors of social media to deal with.

The fix is that now, finally, clicking on one of the categories links on the right-hand side of the page will take you to a comprehensive listing. Previously, a glitch meant that some posts were omitted.

And at the request of a reader, at the top of each post you’ll now find a link to the post that precedes it, the post that follows it, and the index of the most recent posts. I thought this feature might be particularly helpful for those who go to the blog from one of my email updates. Do you think this represents an enhancement, or just more clutter?

Say I wanted one book that would give a good treatment of comparative foreign law (French, UK, Belgian, etc), with key discussion on contract remedies available, what would you go with?

I haven’t yet had occasion to consult such a book. If you can recommend anything, please post a comment.

You choose to use your blog to tout your own book and for self-validation. I certainly hope you are not deceiving yourself that your purpose is to foster discussion or refine your own body of knowledge. That’s fine, each to his own, I just wonder why you have the comments turned on. Because you so enjoy taking potshots at anyone who begs to disagree? That’s all you’ve done the rare times I have commented, you are abusive and demeaning—that’s why I use an alias, so if our paths ever cross you won’t be able to berate my stupidity in person.

Sad as it might seem, I’m passionate about contract language. And the marketplace of ideas involves having ideas do battle. And readers need to be entertained. And you can’t please all the people all the time. On the other hand, I want to encourage fruitful discussion.

Since last September, when I last revisited the issue of how I respond to comments, I’ve done my best to maintain an assertive-yet-civil tone, and periodically I’ll go back and tone down a response that could be construed as unduly feisty. Before the missive quoted above, since last September no one had complained. If you think I need to make any adjustments in this department—in other words, if in any of my blog posts or comments I come off as a jerk—please let me know.

But do you think anyone would be interested in taking such a test? Or would any organization be interested in having its employees take it?

During lunch I mentioned to you that I had already put into practice the recommendations published in the first edition of your book regarding corporate resolutions. Your suggestions for common-sense language were very helpful, as were the examples of “before” and “after” versions of written consents. So much of the language in resolutions is archaic and I will do my part to delete it and avoid it wherever possible.

The passage she’s referring to now constitutes chapter 19 of the second edition of MSCD. The following extract will give you the flavor:

Because current usages are so deficient, this chapter recommends significant changes to how written consents are drafted. That the recommended format wouldn’t affect meaning should, instead of being an impediment to change, make it easier for lawyers to adopt that format, safe in the knowledge that the resulting improvements in style and readability wouldn’t come at the client’s expense.

And I’ve written a couple of blog items relating to corporate resolutions. This January 2007 post discusses be and hereby is, which I dubbed “the lamest drafting usage.” And this March 2007 post discusses an issue relating to dating Delaware consents.