Inertia

The Endless Inefficiency of M&A Drafting

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

Spare Us the Legalistic BS: I Respond to an Item on “Above the Law”

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

How Malcolm Gladwell’s Thoughts on Inertia Relate to Contract Drafting

At the suggestion of @saBEERmetrics I listened to episode 590 (“Choosing Wrong”) of This American Life, the weekly public radio show. I’m glad I did, because it’s about inertia, and in a couple of respects it’s relevant to what I do. What Stops You from Doing What Makes Sense In act one of the episode, Malcolm Gladwell discusses the notion of beliefs and … Read More

Do You Risk Ethics Violations If You Follow My Guidelines? I Respond to a Traditionalist

As their principal objection to tinkering with mainstream contract language, traditionalists offer the notion of “tested” contract language—mess with the standard formulations and you invite a world of risk into your lives. My objection to that objection has been that it’s mostly offered without any backup. Usually it’s a platitude that’s invoked as a matter of expediency, to rationalize maintaining the status … Read More

Changing Contract Legalese: My Response to Keith Lee

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

What’s Beyoncé Got to Do with Contract Drafting?

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

A Proponent of “Tested” Contract Language

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

Contract-Drafting Dysfunction, Meet Cooking Dysfunction

I consult the cooking website Serious Eats quite often; I find it reliable, interesting, and innovative. The presiding genius is Kenji López-Alt, aka @TheFoodLab. He has a new book out, unsurprisingly also called The Food Lab; go here for the website. In true Christmas spirit, I purchased a copy for myself. I’ve only just started looking at it, but already something has … Read More

Contract-Drafting Dysfunction, Meet Medical Dysfunction

Over the weekend I listened to this episode of the radio show Freakonomics, “How Many Doctors Does It Take to Start a Healthcare Revolution?” My ears pricked up when I heard Jeffrey Brenner, who is a physician and the executive director of the Camden Coalition of Healthcare Providers, say the following: What I think many people would be shocked to find out … Read More

Trade Groups, Criticism, and Effecting Change in Contract Drafting

I used to think that trade groups were a promising route to change. After all, they should have a broad perspective. They should be able to achieve economies of scale. And they should have resources. But I no longer take that for granted. Change involves determining that the current way of doing things doesn’t work as well as it should … Read More