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.
Ken, can you give us some examples of what concerns you here? I’m curious why you think that “in the context of determining what works best in contract drafting, … you should have all or most of the information you need ….” The future is often cloudy; the law isn’t always black and white; and contract drafters never know the values, biases, intelligence, education, experience, etc., of every decision-maker who might conceivably read their work someday. That’s why a lot of contract drafting is defensive in nature (lowest common denominator, if you will). You’re certainly right that conciseness is a virtue, but it won’t always be the most-valued one.
I know that marketing consultants typically advise bloggers to find an enemy, but I’m not sure this is the one you want.
D.C.: The discussion that prompted this post related to how one captures efficiencies in contract drafting.
For example, what is the most efficient process? Culling from EDGAR? Putting together some sort of wiki? Relying on artificial intelligence? And so on. In that context, agreeing to disagree seems a cop-out, unless one’s referring to narrow issues arrived at after having thrashed things out extensively.
And the same goes for selecting among alternative contract usages: I couldn’t have written MSCD if I didn’t think that I could consider the different ways to articulate a given meaning and be comfortable about taking a stand over which is most efficient.
My beef with “agree to disagree” is related to my complaint about the retort “We prefer doing things our way.” See http://www.koncision.com/when-youre-wedded-to-doing-things-your-way/.
Outside those limited spheres, sure, things can get very murky.
And don’t worry, I’m not in thrall to marketing consultants—this is just me.
Ken