In this April 2010 post on AdamsDrafting I explained why I thought the notion of an crowdsourced initiative to create contract templates wouldn’t be viable. But seeing as this idea has recently been discussed in this post on Bill Carlton’s Counselor@Law blog and in the comments to this post on Brian Rogers’s theContractsGuy blog, I thought there might be some point to revisiting it.
To create such crowdsourced contracts, you could use various collaboration tools, such as wikis or Google Groups. Either anyone could be free to participate, or you’d restrict participation to an narrower group. Most likely the end product would be in the form of annotated Word documents. (Given the volunteer nature of the process, it’s unlikely that anyone would pay for the right to use document-assembly software.)
This approach might work OK for Wikipedia, but contracts are much more demanding. Here are the problems I see:
- If anyone could contribute, you’d have insurmountable quality-control issues.
- Even if participation was limited to “heavy hitters” (to use Brian Rogers’s phrase), you’d still have major quality control issues, as even lawyers from “elite” law firms produce contracts that are depressingly dysfunctional. Consider, for example, the model confidentiality agreement I sampled for purposes of this recent post.
- The only way to ensure quality would be to have strong editorial control, but even if you could find someone suitably qualified, who on earth would want to take on such a major task for nothing more than a pat on the back?
- Using a Word document as the vehicle for a template would greatly limit the scope for customization and would require inefficient copy-and-paste revisions.
I first wrote about this notion in 2007, in a New York Law Journal article (go here for a PDF copy). Since then, I’ve seen no sign of anyone attempting an crowdsourced contracts initiative, although I’ve encountered organizations that have wistfully mentioned the possibility to me. You can’t attribute that inaction to lack of technology. Instead, I think it’s a clear indication that the idea isn’t feasible.
And continued blogosphere interest in this notion can’t be taken as an indication that it’s viable. Instead, I think that enthusiasm for creative disruption through technology is such that people are inclined to see it as a cure-all, whatever the context, and try to push it into areas where it doesn’t belong.
What’s required instead is a cold-blooded cost-benefit analysis. If, for example, you’re pining for an crowdsourced confidentiality agreement, you might want to consider that for a pittance, you could use, right now Koncision’s confidentiality-agreement template, safe in the knowledge that it’s more reliable, as a matter of credentials, content, and process, than anything else out there.
[Updated noon May 9: In the original version of this post I referred to “open source” contracts but attempted to make it clear that I was referring to broad collaborative initiatives. Prompted by Random John’s comment, I revised this post so as to use instead the term “crowdsourcing.”
If “open source” refers solely to distribution rather than production, I have no inherent objection to the notion of an open-source initiative. It all depends who prepares the templates and according to what guidelines. In this recent post, I suggested just such an initiative for purposes of M&A contracts.
And read narrowly, the label “open source” is ultimately of limited value: I’m not sure there there’s much point in distinguishing between templates prepared by an appointed group and made freely available (the NVCA model documents) and templates prepared by an appointed group and offered for sale (the ABA Section of Business Law model contracts).
Finally, I hope I’ve made it clear that I’m a fan of collaboration. This post is one of many examples of how reader comments allow me to fine-tune proposed contract language. But for collaboration to be truly effective, you need strong editorial control.]