In this post on his Contract Analysis and Contract Standards blog, Kingsley Martin notes that empirical analysis of contracts allows you to determine what they actually say as opposed to what you think they say.
That makes sense, but it wasn’t what caught my eye. Instead, I noted this table, which is from Stewart J. Schwab & Randall S. Thomas, An Empirical Analysis of CEO Contracts: What Do Top Executives Bargain For? The table is entitled “Actions Defined as Just Cause for CEO Termination,” and it shows that in the contracts examined, the most commonplace basis for just-cause termination was “moral turpitude”—it appeared in 72% of the contracts.
But the phrase moral turpitude is unhelpfully vague, and it has given rise to a least one head-scratching court opinion. See this December 2007 blog post and MSCD 12.176–194 (the more recent version of my analysis). I’d never use moral turpitude in a contract; I recommend that instead you use clearer alternatives.
I point this out just to suggest that if you hold a popularity contest to determine what goes in your contracts—if, in other words, you’re looking for conformity—you’re likely going to include in your contracts a lot of language that may be prevalent in mainstream drafting but is nevertheless dysfunctional.
The prevalence of a given provision could be an indication of how much resistance you’re likely to meet in seeking to include it or exclude it from a given contract. But use it at your peril as an indication of how suitable the provision is.
Thanks Ken. I enjoy our online discussions. In this case, I would like to clarify the difference between clause commonality and language consistency. I have posted more detailed information on my blog (http://contractanalysis.blogspot.com/2010/10/contract-analysis-commonality-and.html).
In summary, kiiac’s approach is to construct an outline of contract terms and a clause library for each provision based on a source set of documents. The outline captures all the standard transaction elements and deal-specific variations. It does, indeed, measure how frequently each provision occurs in the collection. The clause library, however, is not organized by commonality, but rather by language consistency. We seek to find the core, non-negotiated language and group the clauses by conformity to such standard and highlight deal-specific or divergent terms.
Our goal is to present the attorney with the best precedent and give them the tools to quickly indentify the preferred or optimal contract language. I believe we are both seeking the same goal: high-quality document standards.
Kingsely: The point I make in my post is a general one, unrelated to kiiac. But obviously it does bring to mind our previous exchange: https://www.adamsdrafting.com/2010/04/19/open-sour…. Ken
Perhaps an aside, but is there is some other kind of turpitude, or is this like yesterday's comic strip about baked lasagna as opposed to fried or barbecued lasagna?
Jack: Great point! I suspect that once "moral turpitude" is finally consigned to the scraphead, that will be the last we see of "turpitude" (meaning "depravity"). Ken
Moral turpitude is a wonderfully American phrase. As a visitor to the US I have to declare on the immigration form that I have not been convicted of any crime of moral turpitude. I expect most non-US citizens could only guess the meaning, as the word turpitude is so obscure, and the phrase is not used in English criminal law (or at least I didn't encounter it when studying criminal law at university). On a cycling holiday many years ago in the UK, for a game I asked people whether a lack of moral turpitude was a good thing or a bad thing, and no-one had any idea. It got people talking though!
I have always interpreted "crime involving moral turpitude" to basically mean any crime apart from DWI.
Dennis: Unfortunately, how you interpret the phrase is less relevant than how the world at large interprets it. And your "basically" leaves a lot of room for confusion. Ken