Inertia

Effecting Change, Retail and Wholesale

Periodically, I proclaim how getting rid of the copy-and-paste system for drafting contracts will require change at the wholesale level. In other words, it will require a new system that offers a compelling alternative to copy-and-paste. I wrote about that a couple of weeks ago, in this post. But I don’t mean to give short shrift to change at the … Read More

Contract Drafting and the Tragedy of the Commons

You’re familiar with “the tragedy of the commons,” right? Individual users have open access to a resource. In using that resource, they’re unconstrained by formal rules or shared social structures, so each user acts independently according to their own self-interest. But that’s inconsistent with the common good, because through their uncoordinated action, users deplete that resource. Hence the tragedy. The … Read More

The Texas Supreme Court Doesn’t Like Cryptic Contracts

Thanks to Glenn West, I learned about the recent opinion of the Texas Supreme Court in Burlington Resources Oil & Gas Co. LP v. Texas Crude Energy, LLC (PDF here). The fight was over a technical oil-and-gas issue that’s way above my pay grade. Both parties claimed the language was unambiguous and each offered a vastly different interpretation. The court … Read More

Innovation and Contract Drafting: Thoughts Prompted by Ivy Grey’s Article

A couple of recent articles make the sensible point that it’s meaningless just to clamor for innovation in legal. There’s this article by Mark A. Cohen (@legalmosaic, but this post is about this article on Above the Law by Ivy Grey (@IvyBGrey). The title is Innovation Is A Red Herring Without Cultural Change, and in it she asks, “So how do … Read More

The Adams/Cummins Debate on Sweeping Away Traditional Contracting: Ken Says “No”

Tim Cummins is the head of the International Association for Contract and Commercial Management (IACCM). Over the years I’ve discussed with Tim the future of contracting. After a recent exchange of emails, we decided try a more formal approach. We agreed to address on our respective blogs the following proposition: We want new technologies to sweep away traditional contracting, so … Read More

For Change in Contract Drafting, You Need Supply and Demand

This post is my response to @ronfriedmann‘s tweet below. .@KonciseD Fair . But how do we scale to ensure widespread, properly drafted agreements? And how do we persuade lawyers of necessity? — ronfriedmann (@ronfriedmann) February 16, 2017 If you want clearer, more effective contracts, you need two things: supply and demand. Supply By “supply,” I mean that you have to provide … Read More

Effecting Change at English Law Firms: An Exchange of Emails

After Tuesday’s panel discussion in London I received the following email from a mid-level lawyer at one of the major English law firms: I thought you were great. I also thought that your contribution had a slight air of shouting into the wind—I agree with everything you say, but conceptually there is not a sufficient meeting of the minds elsewhere. … Read More

Someone Offers a Defense of Brain-Dead Contract Archaisms

Early this year I wrote about attempts to argue that changing traditional contract legalese is a bad idea, either because traditional legalese works (see this post) or because it might work (see this post). Well, I’ve encountered another article that makes the same sort of argument. In Contracts Part III: The Role of Legalese in Contract Drafting (here), published in something … Read More