On Declining to Post Comments

To my recollection, until a couple of weeks ago I had outright rejected only a single comment, and that was on grounds of undue snarkiness. I had avoided posting perhaps a couple of dozen other comments, but in those cases I attempted to smooth things over by treating the comment as an email and sending the commenter a friendly reply.

By contrast, over the past couple of weeks I’ve declined to accept three comments, all of them relating to representations and warranties.

Two of the comments were by valued commenters who were, in effect, advocating the “magic words” approach to the issue. The third was by a well-meaning first-time commenter who, unaware that he’d wandered into the middle of a gunfight, disagreed with my interpretation but offered a distinction without providing any support.

This outburst of inflexibility on my part had been building for a while. A few months ago I publicly scolded a long-time commenter who offered his view on appropriate use of shall without having consulted what I’d written on the subject.

My recent orneriness prompted commenter Mark Anderson to offer the following in this comment:

It is noticeable that there have been very few responses to your recent posts. I think people have been put off from responding, in case they get their head bitten off.

I would also like to suggest that if there is to be an open marketplace of ideas, the moderator should step back a little, and let the ideas flow. At present it feels like making submissions to a judge, who rules for or against.

Here’s where the awkwardness arises: I don’t regard my blog as a marketplace of ideas. Instead, it’s a place where, with the help of anyone who’s willing to comment, I refine my ideas until they’re ready to do battle in the marketplace of ideas.

Some zigging and zagging is inevitable, indeed beneficial, as commenters and I go down dead ends and float trial balloons. I’ve accepted many a comment that I don’t agree with, adding a comment of my own to explain why. That’s the nature of discussion. And I’ve benefitted from having commenters point out weaknesses my arguments.

But if discussion consists of reiterating entrenched positions, it’s no longer helpful. That’s most likely to happen with respect to those topics that I’ve analyzed at length and where I challenge the conventional wisdom.

As regards representations and warranties, I’ve heard many variations on the magic-words analysis and I’ve found them all beside the point, so I’m moving on. Consistent with that, I find unhelpful comments that advocate the magic-words approach to representations and warranties. They muddy the waters, particularly as I don’t have the time or energy to counter them each time they surface, other than to point the commenter to what I’ve written previously. Because this blog is where I refine my ideas, I feel under no obligation to give oxygen to ideas if I’ve said repeatedly that I find them wanting.

Again, it’s not disagreement that I object to, but rather having incompatible approaches repeatedly bump heads. I’d like to think that the representations and warranties perfect storm was exceptional and that such discord will arise as infrequently in the future as it has in the past. To encourage vigorous comments, I pledge as follows:

  • Whenever I’m inclined to use my veto, I’ll take some deep breaths. The odds are that I’ll climb down off my high horse.
  • I won’t scold anyone in a comment, as that’s uncivil. (Sorry, Art.)

And if I may, I have a suggestion: If you’re a long-time commenter and you don’t have a copy of MSCD, you might want to get hold of one. If you can deduce from MSCD how I’d respond to a comment you have in mind posting, that might allow us to get directly to the nub of an issue.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.