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 grabbed my attention, in an unexpected way.

In the “What’s in this book” part of the introduction, Kenji describes how about twenty years ago, the food scientist Harold McGee debunked the long-held notion, first promulgated in the mid-nineteenth century by German food scientist Justus von Liebig, that searing meat before roasting it locks in the juices. Kenji goes on as follows:

The question is, if debunking von Liebig’s theory was such a simple task, why did it take nearly a hundred and fifty years to do it? The answer lies in the fact that cooking has always been considered a craft, not a science. Restaurant cooks act as apprentices, learning, but not questioning, their chefs’ techniques. Home cooks follow the notes and recipes of their mothers and grandmothers or cookbooks—perhaps tweaking them here and there to suit modern tastes, but never challenging the fundamentals.

It’s only in recent times that cooks have finally begun to break out of this shell.

Sound familiar? That’s because a similarly deferential and hidebound approach is what has prevailed in contract drafting.

In fact, I can offer a more general hypothesis. You might recall this recent post, in which I compare dysfunction in medicine with dysfunction in contract drafting. Kenji’s observations lead me to think that in fields that rely heavily on individual judgment—law, medicine, cooking, and doubtless others—the tendency has been for individuals to defer unduly to what has gone before, but that is now changing, for the better.

Kenji describes cooking as a craft. In this 2014 post, I describe contract drafting as a craft. At some level, medicine is a craft, too. In saying in the preceding paragraph “rely heavily on individual judgment,” that’s just another way of saying “craft.”

I’m not an historian or futurist, so I’ll leave it at that. But just as cooks are starting to rely on a more empirical approach, contract drafters are now less inclined to slavishly follow misbegotten conventional wisdom.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.

3 thoughts on “Contract-Drafting Dysfunction, Meet Cooking Dysfunction”

  1. Pardon the Latin but re-wording what you wrote, it’s like lawyers are drafting using a flawed version of stare decisis rather than using judgment and analysis. Except in doing so, they’re not implementing language created in a previous judgment; they’re drafting using language that to a certain extent survived a judgment. Which got me daydreaming: wouldn’t it be interesting if a court’s role after interpreting a clause ambiguous enough to fight over it was to consult with drafting experts and suggest by obiter a better way of wording that clause? I’m sure even that would have its flaws, but it might be a step in the right direction.

    • Angels and ministers of grace preserve us! Your suggestion gives one the horrors. If you want to look at case law for contract drafting leads (bad idea), look at the language the court uses in stating the possible meanings of uncertain language. If the court says X can mean A or B, then whenever you mean A, say A, and whenever you mean B, say B. Eschew X.

    • The roots of traditional contract language are more obscure than you suggest. And ask a court to help come up with better wording? No thanks. Trying to make sense of confusing contract language is very different from trying to write stuff clearly in the first place.


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