I have a mixed relationship with the law-school world. On the one hand, an increasing number of instructors use MSCD as a course text. On the other hand, people from law schools are among the most ardent defenders of traditional contract language that I have encountered.
So I was interested to see this post on ContractsProf Blog by Nancy Kim, professor at California Western School of Law. She uses her post to bring to our attention two “great new resources,” only one of which is relevant, namely a law-review article entitled Say the Magic Word: A Rhetorical Analysis of Contract Drafting Choices (here). It’s by Lori Johnson, assistant professor at the William S. Boyd School of Law, University of Las Vegas. Nancy’s post and Lori’s article gave me the opportunity to consider the mindset of the law-school traditionalist.
First, let’s consider some of what Nancy has to say:
One of my pet peeves is when contract drafting stylists advocate the modification or even wholesale deletion of contract terms without understanding their underlying purpose simply because it “sounds better.” Johnson explains why it’s important to distinguish between legalese without substance (words such as heretofore, whereas, etc.) and legal terms that have a substantive purpose. I found this article to be refreshing because it focuses on the substance of contract clauses, not just drafting style, with the ultimate goal of protecting the client’s interest.
The next time Nancy trashes someone’s work, it would be helpful if she were to name names. It might be grandiosity on my part, but I’m confident that I’m one of the “contract drafting stylists” that Nancy is referring to. And the readers who sent me a link to Nancy’s post were evidently also under the impression that I was one of Nancy’s targets. After all, there aren’t many of us out there who focus on contract language, and I plead guilty to advocating doing away with plenty of traditional usages. And Nancy is certainly aware of me, as I posted a comment on her 2013 post about the traditional recital of consideration (here) and she posted a comment on my 2013 post about represents and warrants (here).
It’s bemusing to have Nancy dismiss me and others as “contract drafting stylists,” and to have her say that we offer analysis of contract usages “without understanding their underlying purpose simply because it ‘sounds better.’” Anyone who thinks that what I do is limited to prettying up contract prose hasn’t been paying attention. And aside from a few stray references in MSCD, nowhere do I invoke the “sound” of a usage as being relevant. How, for example, does “sounding better” factor into my 10,000-word analysis of represents and warrants? And does that analysis suggest to anyone that I don’t understand the issues involved?
Nancy could have done a methodical critique of my work, pointing out all its weaknesses. If she had wanted a model for how to do that, she could have done worse than consult my article on represents and warrants (here). Or my recent article about a Second Circuit opinion (here). Or my review of Gulati and Scott’s The Three and a Half Minute Transaction (here).
But apparently Nancy has no credentials as a commentator on the building blocks of contract language and has no interest in acquiring any. Instead, she’s the sort of person who’s willing to offer advice on the law of consideration without even knowing how that law relates to guaranteeing someone else’s debt (see my second comment to her post on the traditional recital of consideration).
Now, let’s move on to Lori Johnson. Last year Lori contacted me to ask if she could speak with me in connection with an article she was writing, namely the one Nancy mentions. So I spoke with her, and in the article she thanks me for my time and insight.
A little less than a year ago I noticed that the article had come out, but I didn’t get around to looking at it until a few months later. When I did, I was surprised to find that my works were cited copiously, but with the aim of showing that my approach to contract language is wrongheaded.
At the time, I briefly contemplated doing a blog post about Lori’s article, but I quickly decided against it. For one thing, under normal circumstances I pick targets with a substantial presence in the marketplace of ideas. But more to the point, her article is a hot mess, a farrago of … something. It would have taken a lengthy blog post to explain why, and such a blog post would have been a chore to write and, more importantly, a chore to read. And that hasn’t changed. If you want to read Lori’s article, complete with Coleridge epigraph, “the Burkean pentad,” Michel Foucault, and the rest, go right ahead, but unless forced to, I don’t plan on spending any further time on it. Coming from me, that’s saying something.
And I suggest to Lori that in law-review articles, it’s best not to attempt to bolster one’s reasoning with invective. In her article, we advocates of a more modern approach are guilty of “touting the manifest benefits of ‘plain English.’” Ours is a “blinkered focus” that lacks “thoughtful analysis.” We “cling to plain language.” She has me “bemoaning” something. My skin is plenty thick enough to withstand such stuff, but it undermines a writer’s credibility. In my articles, I try hard to be clinical.
Faced with having my work denigrated by law-school traditionalists, one offering nothing by way of analysis and the other offering a lot of nothing, I thought it might be helpful for me to summarize my approach to use of terms of art.
Yes, contract language is full of terms of art. Some are unavoidable; some are more trouble than they’re worth. To determine in which category a given term of art falls requires analysis. It’s not for the faint hearted—hence, for example, the length of my article on represents and warrants.
In any such analysis, I assess how confusing a term of art is, how coherent the explanations offered for its function are, and what the alternatives are. If a term of art is sufficiently confusing, and if a plausible alternative presents itself, it makes sense to ditch the term of art in favor of the alternative. What courts have had to say about a confusing usage is of limited relevance. If courts are regularly faced with having to decide what a given usage means, it might well be self-defeating to insist on keeping that usage in contracts. I don’t want to build contracts with confusing usages; I want to avoid fights, not win them.
That’s why it’s a canard to suggest that my work isn’t concerned with “the client’s interest.” Clarity isn’t a nice abstraction. If your contracts aren’t clear, you waste time and money and you get into fights. It’s that simple. Clarity, saving time and money, and avoiding risk go hand in hand.
Given how much I’ve written over the years about the obvious usages—including represents and warrants, best efforts, and indemnify and hold harmless—and given that no one has offered meaningful counterarguments, I’m comfortable that in terms of scholarship, those battles have been won.
But we’re dealing with trench warfare, usage by usage. The Trademark Reporter recently published my article on use of inures to the benefit in trademark licensing (I’ll put it on my blog before the end of the year). In the next couple of weeks I have to write another article about a different kind of provision. And I’ll probably keep producing such analyses for a good many more years. Doubtless I’ll get some stuff wrong, initially. When that happens, I welcome those of you in the marketplace of ideas—even Nancy and Lori, if they have the urge—to tell me exactly where I’ve gone wrong.