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

Isaac Newton on Inertia

Isaac Newton defined inertia in his first law of motion. Here’s how his Philosophiæ Naturalis Principia Mathematica describes inertia: The vis insita, or innate force of matter, is a power of resisting by which every body, as much as in it lies, endeavours to preserve its present state, whether it be of rest or of moving uniformly forward in a straight line. If I … Read More

Cognitive Dissonance and Contract Drafting

I’ve been thinking about cognitive dissonance. Here’s some of what Wikipedia has to say on the subject: The theory of cognitive dissonance in social psychology proposes that people have a motivational drive to reduce dissonance by altering existing cognitions, adding new ones to create a consistent belief system, or alternatively by reducing the importance of any one of the dissonant elements. Cognitive dissonance is the … Read More

Someone Else Takes On “Tested” Contract Language

For lawyers unwilling or unable to overhaul their traditional contract language, the excuse of choice is that traditional language has been “tested”—if you meddle with it, you’re exposing yourself to all sorts of risk. I discussed in this 2006 post how the notion of “tested” contract language is nonsense, and I revisited the issue in this 2012 post, as well … Read More

The Concept of “Tested” Contract Language

In the past ten days, I have twice had people mention to me, in the course of conversation, the notion of “tested” contract language. The idea is that while contract prose could certainly be improved, changing it would be risky—traditional contract language has been litigated, or “tested,” and so has a clearly established meaning (is “settled”). This argument has long … Read More