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.
5 thoughts on “Practitioners and Scholarship: Oil and Water?”
Not really sure what point you are making. If you are suggesting that only someone who devotes themself full time to the discipline of contract writing (who could that be?) is competent to produce these materials, then I respectfully disagree.
If you are taking a general swipe at legal academics, then I agree heartily.
If you are saying that the discipline of contract writing is in an overlapping part of the Venn diagram, between academic and practitioner activities, then I agree. Equally, if you are saying that it takes a rare combination of skills to live in that space, I also agree. There are a few distinguished examples, eg Philip Wood of Allen & Overy, who has become an academic, but for many years was the drafting guru within that firm, as well as being a leading banking lawyer. Back in the 1980s I obtained a copy of his notes on drafting from a former Allen & Overy lawyer, and they were extremely useful.
Mark: No, I’m not trying to suggest that producing works of scholarship is a full-time job. But it does go beyond dilettantism. That’s why I mentioned the time it took Glenn West—a partner at Weil Gotshal—to write his articles.
And the transactional world involves more than contract drafting, so this goes beyond my little corner of the world.
What should contract scholarship look like? I’m not aware of any peer-reviewed journals devoted to the topic of contract drafting. Are you? If you were to design a peer-reviewed journal devoted to contract scholarship what areas do you believe would create the most scholarly work?
The issue isn’t what outlets are available, but instead the nature of the work that’s being done.
Speaking of peer-review journals, I submitted my article “Bamboozled by a Comma” to one, then quickly withdrew it. The process promised to be pedantic and slow as molasses, with the end result being hidden behind a pay wall.