In a previous blog post (here), I offer thoughts on a law review article, Tara Chowdhury, Faith Chudkowski & Mitu Gulati, The Form Knows Best, 79 U. of Miami L. Rev. 607 (2025). The same issue of that law review contains Glenn West’s response to that article—The Form Doesn’t Know Anything: A Response to Chowdhury, Chudkowski & Gulati, 79 U. of Miami L. Rev. 628 (2025). In this post, I add a wrinkle to what Glenn has to say regarding the extent to which deal lawyers consult caselaw.
The Background
Here’s what Chowdhury, Chudkowski & Gulati say about that:
For the vast majority of the transactional lawyers we spoke to, regularly reading cases and updating how they drafted contracts as a function of those cases was not a part of their day-to-day routine.
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Our interviews left us with the impression that transactional lawyers follow prior forms—not case law. Some of them may read case summaries and attend bar meetings where there are discussions of developments in the law, but even this level of attention is the exception rather than the rule. The goal is to get the deal done using a form used previously that satisfies “market” expectations. Often, the pressures to stay consistent with prior precedent in terms of prior deal documents trump updating as a function of new case law.
Here’s how Glenn responds:
While it is undoubtedly true that many transactional lawyers stopped reading cases after their final semester of law school, that is not the same as them believing that caselaw doesn’t matter. Indeed, most law firms invest considerable resources into staying current on relevant caselaw.
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But I have since come to appreciate that reading blog posts, carefully selecting the courses you are already required to take to meet your state bar’s mandatory CLE requirement, and regularly attending the Jurisprudence Subcommittee of the ABA Business Law Section’s M&A Committee can be an effective substitute. And based upon anecdotal evidence, many transactional lawyers do in fact engage in those disciplines. So, I think some of the quotes ascribed to the transactional lawyer interviewees in “The Form Knows Best” are not to be completely believed.
Conventional Wisdom Over Caselaw
I agree with Glenn’s take, but it reflects only part of the picture.
The kind of attention Glenn sees lawyers paying to caselaw seems likely to involve caselaw that’s particularly relevant to deal lawyers, with commentators perhaps having their say about it. Let’s call that approach “caselaw-focused.”
Then there’s how I study contract language. My starting point is a given word, phrase, or provision. What is its ostensible function? Does that function make sense? If it does, what contract language would best articulate that function? Let’s call that approach “context-focused.” Context-focused inquiry requires looking at contract language from different perspectives. Deal practice. English usage. Linguistics. Semantics. And yes, caselaw.
But context-focused analysis doesn’t start with caselaw. Instead, you start with the broader context, then you hunt for relevant caselaw and assess its significance, given the context. But generally, deal lawyers aren’t amenable to that approach. Instead, they rely on conventional wisdom over caselaw.
For example, consider efforts provisions. My most detailed take on that topic is contained in this 2019 law review article. Based on my experience, most who work with contracts endorse the notion of a hierarchy of efforts provisions, with best efforts imposing a more onerous obligation than does reasonable efforts, and so on. My 2019 article debunks that notion. When I circulated to journals the manuscript of that article, bewildered editors asked me how I could be so wrongheaded as to dispute that notion. But US caselaw is consistent with my position. And the Delaware Chancery Court subsequently said my article is “The most thorough analytical treatment of efforts clauses” and called me “The leading commentator on efforts clauses.” (See this 2020 blog post.) Nevertheless, among those who work with contracts, and in English and Canadian courts, the conventional wisdom still holds sway.
For another example of context-focused analysis that’s at odds with the conventional wisdom, consider my 2023 law review article showing that the word material is not only vague but also ambiguous. It reaches that conclusion based in part on caselaw. That material is ambiguous should be a foundational component of our understanding of materiality, but because that notion is at odds with the conventional wisdom, my article has been greeted with silence. That doesn’t make me any less right.
What explains this conflict between the conventional wisdom and a reasoned approach? It all starts with contract drafting’s original sin—copy-and-pasting. With generation after generation copy-and-pasting, on faith, from precedent contracts and templates of questionable quality and relevance, you can expect that any given contract will contain prose that is a long way from clear, concise, and relevant.
Instead of fixing the dysfunction, the legalistic mind dreams up conventional wisdom to rationalize the dysfunction: when it comes to the building blocks of contract language, once something has been assimilated by the copy-and-paste machine, copy-and-pasters are reluctant to question it.
Invoking Caselaw While Ignoring Caselaw
Generally, conventional wisdom is tailored to the language at issue, but traditionalists are also partial to invoking the notion that because caselaw tells us what traditional contract language means—in other words, because traditional contract language has been “tested”—it’s risky to abandon traditional contract language.
But if contract language came to be tested, that’s because it failed to clearly state the intent of the parties. Why rely on language that resulted in litigation? Instead, express any given concept clearly, so you don’t have to gamble on caselaw breathing into it the desired meaning. (See this blog post.) And in terms of lawyer attitudes to caselaw, those who invoke the notion of “tested” contract language never seem to have any interest in exploring the caselaw that ostensibly did the testing. Instead, it serves as a lazy, reflexive defense against change, and it also represents another manifestation of lawyer disdain for caselaw.
To sum up, lawyers are all for relying on caselaw for caselaw-focused inquiry, but you can expect that if anyone engaged in context-focused inquiry cites caselaw as part of challenging the conventional wisdom, most of us will be too busy copy-and-pasting to pay attention to it.
