I’m prone to suggesting that the dysfunction in mainstream contract language can largely be attributed to the precedent-driven nature of transactional work. But perhaps another factor plays a supporting role. (Caveat: what follows is semi-informed speculation.)
I suspect that a large majority of analytical materials relating to transactional work are prepared by practitioners. And of those materials, I suspect that most are prepared as part of a bar association initiative or for some other CLE-based purpose.
By contrast, academia’s contribution has been entirely modest. The interview with Steven Davidoff, aka The New York Times’s “Deal Professor,” at the recent meeting of the Mergers and Acquisitions Committee of the ABA Section of Business Law reminded me of one reason why: Steven noted that there are still relatively few corporate specialists at law schools. And then there’s the trifling matter of the sneering disdain that many faculty at “elite” law schools apparently have for the notion of practicality.
“So what?,” I hear you say.
In this February 2009 blog post I described how I morphed from regular deal lawyer to contract-drafting guy. The change came as a great relief. If doing deals is like working in a high-pressure restaurant kitchen, as a matter of temperament I’d be better suited to writing cookbooks or studying kitchen ergonomics. What I do is sufficiently different from dealmaking that I have a hard time imagining that many people could be great at both kinds of activities.
Another way in which I differ from your average practitioner is that I have lots of time for rumination, false starts, dead ends, and rough drafts. If you don’t have the luxury of time to fruitfully waste, or if you don’t make that time, you’re less likely to come up with anything innovative.
If as a general matter practitioners are driven by expediency and are pressed for time, it would seem unpromising to leave to them the task of preparing the analytical underpinnings of transactional practice. With some notable exceptions, such as Kling and Nugent’s Negotiated Acquisitions of Companies, Subsidiaries and Divisions, most practitioner-prepared materials that I consult are, at best, a good starting point for a given analysis. And they tend to recycle the conventional wisdom.
But I’m hardly suggesting that rarefied academe—more PhDs!—is better placed to produce analytical materials for transactional work. Instead, I’m simply suggesting that the odds are against reliable, insightful, and innovative materials being produced as a sideline, or by “volunteers.” In this regard, I recall Glenn West remarking to me that it took him a year to write each of his two recent articles.
So we’d be better off if more transactional materials were produced by people with the necessary aptitude and the willingness to invest the time required to produce works of lasting value. We could do with more scholarship, and if you can deliver it, who cares what hat you wear.