Tweets by @Jeena_Cho and @CherylStephens alerted me to this item by J. Kim Wright. The title is Conscious Contracts: Bringing Purpose and Values into Legal Documents. Go ahead and read it; it’s short. I’ll wait.
You’re back? Good.
In her tweet, Cheryl asked me whether there was room in my world for this concept. Well, I find what Kim has to say pretty sensible. It’s a refreshing antidote to the rote contracting that’s on offer all too often, with lawyers trying to make the facts and the parties’ expectations conform to yesterday’s deals and the conventional wisdom.
In fact, pretty much my only reservation is the label she uses. It brings to mind Gwyneth Paltrow’s “conscious uncoupling” announcement. (Go here for Us Weekly’s take!) A lot of people like buzz-words. “Conscious” is one. So is “holistic,” another word that Kim uses. Me, I don’t like buzz-words. Usually they’re the stuff of fashion and not thought. When I hear buzz-words, I start patting my pockets and looking for the exit.
But labels are useful. Hey, I invented the labels “active drafting” and “passive drafting.” (See this extract of my article on represents and warrants for my most complete explication of those concepts.) In using the word “passive,” I’m not invoking inactivity, but instead a stultifying going-though-the-motions. I think that Kim is articulating a similar distinction but for contracts generally, not just drafting. She could just as well have referred “active contracting” and “passive contracting.”
But being skeptical of buzz-words shouldn’t blind one to the basic merit of what Kim has to say.