[Update June 17, 2013: Go here for the June 15, 2013 post about my article It’s Time to Get Rid of the “Successors and Assigns” Provision.] [Update April 12, 2013: For more recent posts about the “successors and assigns” provision, see “The ‘Successors and Assigns’ and Successor Liability” (here) and “The Illinois Appellate Court’s Problematic Take on the Traditional Recital of Consideration and ‘Successors … Read More
Recently someone asked me about settlement and release agreements, and that put me in mind of a picturesque drafting usage that’s a fixture of release language—from the beginning of time, as in “Jones hereby releases Acme from any claims … arising from the beginning of time to the date of this agreement.” I searched for this phrase in the material … Read More
In the past ten days, I have twice had people mention to me, in the course of conversation, the notion of “tested” contract language. The idea is that while contract prose could certainly be improved, changing it would be risky—traditional contract language has been litigated, or “tested,” and so has a clearly established meaning (is “settled”). This argument has long … Read More
[Update: Go here for my article on this topic.] A forthcoming Missouri Law Review article by Davida Isaacs—it was featured in a recent item on the Wall Street Journal’s Law Blog—discusses whether one could bring a claim for copyright infringement based on unauthorized copying of litigation documents. This article was also mentioned in an item by Gordon Smith on Conglomerate … Read More
I’m fond of invoking two overarching rules of drafting—“be consistent” and “use standard English.” I periodically mull adding a third. Possible candidates come and go, but a current favorite is “say what you mean.” In other words, don’t use stock phrases in the hope that a court will construe them in the way you intended. Instead, address issues head-on. A … Read More
