You might find of interest The Inefficient Evolution of Merger Agreements, a law-review article by two law-school professors, Robert Anderson and Jeffrey Manns. (You can get a PDF copy here.) The authors did something that is still relatively novel when it comes to study of contract drafting—they engaged in empirical research. Specifically, they used computer textual analysis to analyze 12,000 public-company merger agreements … Read More
My post on contracting by the US states (here) prompted @CherylStephens to inform me on Twitter of this post from a couple of days ago on the UK government blog Digital Marketplace. It’s by Jason Waterman from the Crown Commercial Service and Warren Smith from Government Digital Service, and it’s entitled Working together to design government contracts for the digital age. It’s … Read More
I noted with interest this article on problems with Virginia’s contracting system. I’ll take the liberty of quoting most of it: Virginia’s $6 billion-a-year contracting system has serious flaws — including multi-million dollar contracts managed by untrained staff and contracts that are prepared without legal review, according to a new state report issued Monday. The General Assembly’s watchdog agency, the Joint … Read More
My core seminar is the “Drafting Clearer Contracts” seminar. I’ve been doing it for, oh, eleven years, as both public and in-house seminars. I do more of them with each passing year. It’s humming along nicely. I’ve also started doing another seminar. The marketing materials describe it as “advanced,” but the more specific part of the title is “An Intensive Program in … Read More
Starting at 13.364, MSCD considers the elements that go into a definition of the defined term Knowledge. One element that discussion doesn’t include is the possibility of Knowledge being defined to include information that the person in question should have known. That’s knows as “constructive knowledge,” and it features in the following definitions exhumed from the potter’s field EDGAR. “Knowledge” … Read More
You recall my recent post about the foregoing (here)? Well, suppress your gag reflex and meet its close relatives, aforesaid and aforementioned. The word aforesaid comes in two flavors. First, it occurs in the phrase as aforesaid: Each such notice, request or other communication shall be effective (i) if given by mail, 72 hours after such communication is deposited in the … Read More
Last Friday I noticed this post on Above the Law. It’s by Stefan Savic, an associate at the law firm Balestriere Fariello. The title is Legalese: Won’t Do With It, Can’t Do Without It. According to Savic, traditional contract legalese is impenetrable. He says that although lawyers have been encouraged to use plain English, “the day-to-day legal universe has been slow to move … Read More
In this post I reminded you all that I’m involved with LexCheck, the contract-checking software. Part of the challenge in developing LexCheck has been determining what we tell the software to do. For one thing, I’m acutely aware that there’s a difference between your electing to consult A Manual of Style for Contract Drafting and my blog posts and my … Read More
[Updated 4 April 2018: I’m no longer an advisor to LexCheck (formerly Lit IQ), and the last time I did any work for them was in 2016.] You know the 1950s movie Forbidden Planet. No? You should check it out—it’s an odd mix of retro camp and legit eeriness. In any event, the plot of the movie involves—spoiler alert!—technology that’s … Read More
There’s no end to the suboptimal alternatives to may. Here’s another—is permitted. You see is permitted to when a party is the subject of the sentence or clause: … Sponsor is permitted to assign this Agreement in connection with a merger or a sale or transfer of substantially all of its assets … … neither the Seller nor the Purchaser shall … Read More
