Blog

Jurisdiction Provisions, Part 4: Using Convenient-Forum Provisions Instead of No-Objecting-to-Inconvenient-Forum Provisions

After doing these three posts about stuff you find in jurisdiction provisions, I have just one more topic to discuss, at least for now—namely this kind of thing: Each party hereby waives [or agrees not to assert] any objection that those courts represent an inconvenient forum [or inconvenient venue]. I’ve decided to call such provisions “no-objecting-to-inconvenient-forum provisions.” You could use … Read More

Jurisdiction Provisions, Part 3: Don’t Use the Words “Jurisdiction” and “Venue” in Specifying Which Courts Would Resolve Disputes

As you will have noticed from this blog post and this blog post, I’ve been contemplating contract provisions that seek to specify which courts would resolve disputes between the parties. In the process, I’ve observed that people appear uncertain about how concepts of venue and jurisdiction relate to this issue. Inconsistent Terminology Some provisions use just jurisdiction: Each party hereby … Read More

The Return of “Drafting Clearer Contracts” Presentations

At the onset of the pandemic, I declined the opportunity to do an online version of my in-person Drafting Clearer Contracts seminar. But over time, we’ve all gotten used to Zoom. Yes, in-person presentations are more fun, and it’s easier for participants to engage. On the other hand, doing presentations remotely offers compelling efficiencies. And as things stand, the choice … Read More

Jurisdiction Provisions, Part 2: Stop Using No-Objecting-to-Jurisdiction Provisions!

For LegalSifter, I’ve been taking a closer look at jurisdiction provisions. I’ve decided that they represent a dose of concentrated fucked-upness on a par with governing-law provisions. The Context The first shoe dropped last year, in my post Stop Using Consent-to-Jurisdiction Provisions!  It says you should stop using this sort of thing: Each party hereby submits to the jurisdiction of … Read More

We Submitted Comments on the New Standard Contractual Clauses

The European Commission recently published for comment a new draft of the “Standard Contractual Clauses.” Yesterday Martin Clausen, Alex Hamilton, and I jointly filed comments, primarily our version of a portion of the SCCs, just to give the EU a sense of how the SCCs could be made clearer. (The comment period ends today.) Our submission is here, or you … Read More

In Contracts, “Please” Is Not the Magic Word

Thanks to a hot tip from Deep Throat Glenn West, I learned about the Fifth Circuit’s opinion from earlier this year in  Landmark American Insurance Co. V. Lonergan Law Firm, PLLC (here). An insurance company claimed that appellant Lonergan, a lawyer subject to a malpractice claim, had failed to “report” the claim as she was obligated to under her insurance … Read More

A Humdinger of an Opinion from the Delaware Chancery Court: AB Stable VIII LLC v. MAPS Hotels and Resorts One LLC

If you’re weary of the shitshow, I suggest you check out the work of an exemplary public servant—the Delaware Chancery Court opinion by Vice Chancellor Laster in AB Stable VIII LLC v. MAPS Hotels and Resorts One LLC (here), issued on 30 November 2020. It’s another epic Laster opinion, weighing in at 242 pages. The dispute involves the proposed purchase of … Read More

How to Express Not Complying with the Law

How do you express the concept of not complying with the law, but without expressing it in the negative? (In other words, without using not, or fails to, or the prefix non-, as in noncompliance.) Here are some verbs you could use: violates, breaches, contravenes, infringes, breaks. But which should you use? If it’s a popularity contest, here’s a rough … Read More

The Contract Drafter as Architect

This post on LinkedIn by Michael Naughton serves as a reminder of the perils of the artisanal approach to contract drafting: if there are no rigorous standards, you’re free to constantly reinvent a defective wheel. So if it’s not artisanal, how should we characterize contract drafting? Here’s what I said in this 2104 post: “I suggest that it’s a craft—the … Read More