Recently I had an email exchange with someone who has a different view of how to put contract drafting on an efficient footing.
He closed our exchange by noting, genially, that “we’ll agree to disagree.” But he evidently mistook me for someone more easygoing!
Progress requires that good ideas prevail over not-so-good ideas. I do my best to come up with viable ideas, then I take them down to the marketplace of ideas, parade them around, and see how they hold up. I’ll do battle for them, but I also try my darnedest not to get attached to any idea just because it’s mine. I’ve abandoned, with relief, my fair share of ideas that were shown to be lacking.
We could do with a more rigorous marketplace of ideas, instead of mollycoddling our ideas because we’re too lazy or too busy to come up with alternatives, or because we have a vested interest in the conventional wisdom, or because we don’t want to risk wounding our vanity.
In that regard, “agree to disagree” makes sense if those having the discussion have imperfect information. But in the context of determining what works best in contract drafting, where you should have all or most of the information you need, “agree to disagree” represents failure of the marketplace of ideas—rational actors should be able to determine which of a set of competing ideas is the most efficient.
So I won’t be the one proposing to agree to disagree. Instead, if I think that my idea has been vanquished, I’ll wave the white flag. And if I decide that my idea hasn’t been bested, I’ll simply continue to hang around the marketplace of ideas, keeping an eye out for any worthy challenger.