Crowdsourced Mediocrity Is Still Mediocrity

I periodically do my best to dump cold water on the notion that one can crowdsource quality contract language. I did so in this 2010 post, in this 2011 post, and in this post and this post in 2013.

I now permit myself to do so again after reading this post on Open Law Lab, maintained by Margaret Hagan. It’s entitled “Githubbing Law: Open-Source Legal Doc Repositories,” and it’s a helpful survey of what’s on offer. Margaret sets the scene as follows:

[T]here are an increasing number of Legal Document Repositories, many of them now overlaid with a user-friendly interface that allows the user to take the standard document and fill in the designated fields with their own information.

Thus, the user can take a standard doc and make it her own by simply entering in a few pieces of information (that she likely has at her finger tips). Some of these document repositories are even hosted in part on Github, so that any other visitor who signs up for Github could fork these documents & customize them for her own.

The terminology can be confusing. In her title, Margaret uses the term “open-source,” but I suggest that she’s really dealing with crowdsourcing, in that she leads with the Github model. “Crowdsourcing” refers to collaboration initiatives, whereas I think of “open-source” as referring to distribution rather than production. (You can have open-source initiatives that don’t involve collaboration.)

When it comes to crowdsourcing contract language, the problem is the same as it has always been: contracts are too complex, and traditional contract language is too dysfunctional, for one to be able to put any faith in volunteer efforts to compile contract language. Heck, I can’t even put any faith in BigLaw offerings (see for example this 2012 post on DLA Piper’s “Document Factory”), so why should I trust volunteers? If you can’t rely on a source of contract language, you have to treat it as raw material, checking everything against your own understanding and doing, as necessary, your own research. You might as well go dumpster diving on EDGAR.

Margaret appears to acknowledge this with the first item in the wish-list that wraps up her post:

Could we have Expert Curators who give their reviews & recommendations of documents?

That seems unlikely. Systematically grooming contract language requires way too much effort.

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.