Keith Lee is the lawyer behind the blog Associate’s Mind. He’s also author of The Marble and the Sculptor, a book for law students, but that’s beside the point, because what’s on my mind is his most recent blog post. It’s entitled “Should Lawyers Ditch Legalese?” It mentions my recent Beyoncé-inspired post, but I stuck around to read his recommendations on … Read More
Here we go again. You might recall that syntactic ambiguity involves uncertainty over what part of a sentence a phrase modifies, or what part of a phrase a word modifies. If you want a whole bunch of examples of syntactic ambiguity, just search for “syntactic” on this blog. Well, the most recent Supreme Court opinion, Lockhart v. U.S. (opinion PDF … Read More
Today I put this on Twitter: Y'all haters corny with that "tested language" messCopy-pasters, catch my fly, and my cocky fresh — Ken Adams (@AdamsDrafting) February 29, 2016 It’s one of my more obscure tweets, so allow me to explain: I was channeling Beyoncé. Or more specifically, the first two lines of her new song “Formation.” I haven’t paid much attention … Read More
Friends, I’m here to tell you that at least in contracts, affirmatively blows major chunks. It’s redolent of bureaucratic, jargony pseudoassertiveness. In each of the following examples, obtained by dynamite fishing in the EDGAR lagoon, affirmatively is, uh, affirmatively redundant: … an individual who becomes a Covered Employee shall be automatically enrolled in the Plan, and will make Participant Contributions at … Read More
The basic unit of contract prose is, surprise surprise, the sentence. One issue of contract layout is that of aggregation—how do you group sentences into sections and, if necessary, articles? The other is that of division—when is it appropriate to break up a sentence? Division involves enumerated clauses. A contract sentence might consist of introductory text and a series of parallel elements. It might make … Read More
And now, a word from our sponsor: On 5 April and 7 April, I will be giving “Drafting Clearer Contracts” seminars in Geneva, Switzerland, at the offices of the international law firm Orrick. For more information, go here. To register, go here. These seminars will be particularly intime, as the room we’ll be using holds only a dozen people. And that room is … Read More
The word provision is used to describe something in a contract, but without being specific—I don’t think you can say it refers to a sentence or to a section. You can use provision in a contract, usually in the plural. Here are two examples: any additional shares of Common Stock issued and issuable in connection with any anti-dilution provisions in … Read More
Today, thanks to a tweet by @360venturelaw, I stumbled upon a blog post entitled “Famous Last Words: ‘The Shorter the Better.’” It’s by Mike Stanczyk, a corporate attorney based in Syracuse, New York. It’s a sensible post, but Mike wraps it up with the following point: In closing I will say that when possible I prefer and do use “plain English” agreements. However, its … Read More
Consider the following: No Implied Licenses. Except as expressly set forth in this Agreement, neither Party grants any license under its intellectual property rights to the other Party. First, let consider what an implied license is. Here’s what Melvin F. Jager, Licensing Law Handbook § 1:25 (2015) has to say (citation omitted): Under this implied license theory, the unrestricted sale of a patented … Read More
If a contract provision isn’t the focus of the deal, there’s a good chance people won’t have given it much thought, so there’s a good chance that it doesn’t make sense. Consider the notion of licensee liability for a sublicensee’s misconduct. Straightforward, right? But how do you express it? I scattered some roach bait traps on EDGAR and looked at (and then … Read More
