No one owes it to me to take me on or to engage in discussion. But after a certain point, the silence becomes deafening.
This past week I did a blog post entitled Many Judges Are Bad at Textual Interpretation. What Do We Do About It? The first half consists of my critique of textual interpretation offered in a recent appellate court opinion; in the rest, I suggest that judges and litigators could do with some serious training in textual interpretation, as an alternative to pseudoscholarship and misbegotten conventional wisdom.
I thought it was an interesting and provocative post, so I ran it by Jason Steed, aka @5thCircAppeals, doyen of appellate lawyers on Twitter. After I published it, he tweeted a link to his followers. Silence. So a couple of days later I reached out to his group myself, using their hashtag:
Hey #appellatetwitter I'd have thought my post challenges the basis of what you do. You got nothing to say? :-) https://t.co/mZWFtR3gQz
— Ken Adams (@AdamsDrafting) August 7, 2020
And Jason retweeted that. Still nothing.
Long ago, during the bathrobe-blogging years, I learned not to expect anything from online readers. I write stuff that interests me. If anyone else finds it useful, that’s a bonus.
All the same, when I write something that’s seriously provocative and no one touches it, I find that puzzling. That was my reaction to having #appellatetwitter ignore last week’s post. After all, generally they display a fair amount of swagger online.
But then I recalled that their response is hardly exceptional. My 2015 law review article on represents and warrants (here) is, if I say so myself, a seriously original work of scholarship that reduces the conventional wisdom to a smoking ruin. The same for goes my 2019 law review article on efforts provisions (here). The response in each case? Chirping crickets.
In fact, it’s exceedingly rare for anyone to take me on in the marketplace of ideas or explore my ideas in any detail. I can think of four reasons for that.
First, if you really want to critique my work, you’ll have some work to do. Probably way less work than the work I put in to formulate the analysis you wish to critique, but still. You’d have to become intimately familiar with my arguments, then you’d have to marshal your own, then you’d have to state your case. Few people can be bothered with that sort of thing or have the aptitude for it.
Second, when it comes to the guidelines where, after gnawing on the subject for many years, I describe serious shortcomings in a traditional usage and recommend a clear alternative, I’m right. That’s not as bumptious as it sounds. The traditional usages are preposterous; the clearer alternatives are straightforward; and I’ve been working at this stuff long enough, with input from countless readers and seminar participants, that over the years I’ve been able to refine my analysis of a given issue. There’s not much to be gained in arguing with someone who’s right. (More broadly, yes, I’ve been plenty wrong and have had to fix plenty mistakes and misjudgments; see my response to John Juba’s comment.)
Third, if you critique my work, I’ll respond, and I’ll do my best to be polite and constructive about it. But people might not be interested in that sort of exchange. (If I think you’re taking liberties, I might respond in kind, but that’s a different matter.)
But towering over those factors is a fourth: Those who are invested in a dysfunctional system have nothing to gain from challenging it and are temperamentally ill-equipped to do so . If you’re a cog—big or small—in the transactional copy-and-paste machine, it’s unlikely you’ll be interested in scrutinizing it too closely. If you’re part of a herd, you’ll likely be willing to join them in going over the cliff.
This attitude might be a function of your knowing which side your bread is buttered. It might also, or instead, be a function of cognitive dissonance: you’re so invested in the dysfunction that you can’t countenance it being wrong, so you instinctively reject the alternative.
That’s why I no longer look to rehabilitate dysfunction. For example, I stopped consulting (with occasional exceptions) after it became clear that half my clients were so wedded to the dysfunction that they were unable to use the new contract I had prepared for them.
Now I prepare my guidelines for whoever is in a position to find them helpful, and I’m doing my best to contribute to building a contracts infrastructure that offers an alternative to the waste and futility of the current system.
***
Hey, “take me on” leads naturally to … Take on Me!
Re #appellatetwitter: For good or ill, the appellate bar, like so many others, is fairly clubby, paying attention mainly to (in this order): Appellate judges; appellate lawyers who have successful track records; and current- and former appellate law clerks. Bryan Garner fits into the third category (clerked for 5th Cir.), plus he’s a special case due to his friendship and co-authorship with Scalia.
Thanks. It’s not a world I’ve had much contact with.
Ken – I really respect you and your ideas, and for the record I agree with them, but what this comes down to is “no one is engaging me because I’m right and if they have a contrary view of things I will prove them wrong.” Why would anyone bother engaging with you on the ideas when you are so convinced of correctness of your position and unwilling to acknowledge the other side’s point of view? Changing the profession and how it thinks about this topic is a monumental challenge. But surely, there are reasons people continue to draft the way they do, despite its many shortcomings. Maybe trying to approach it with a bit more humility would get better results, not just on engagement but in changing minds, even if just a little bit.
Thanks, John. If anyone were bothered to track my writings over the years (an unpromising idea), they would find that I’ve adjusted my position on a whole bunch of issues. On material; on the dreaded ambiguity of the part versus the whole; on enumeration schemes; and so on. So I’m not suggesting that whatever I spout is right—a preposterous notion. And I regularly say that if you show me I’m wrong, you’ll have a friend for life.
Instead, that observation in this post is limited to the big set pieces, such those I cite: my analyses of efforts provisions and represents and warrants. I tweaked the post to try to make that clearer.
And more broadly, the whole point of this post is to point out that I’ve gone out of my way invite comment and have received little, other than that offered by readers and seminar participants.
As for why people continue to draft the way they do, two principal justifications have been offered to me over the years. One is that the language has been “tested”; see for example https://www.adamsdrafting.com/a-proponent-of-tested-contract-language/. I think I’ve demonstrated that that rationale isn’t conducive to optimal drafting. The other relies on the logical fallacy that a proposition must be true because many or most people believe that. I discuss that at https://www.adamsdrafting.com/in-contract-drafting-its-better-to-be-right-than-experienced/. There’s a teeny bit of that in your comment :-)
As for humility, I find it a lot easier to call things as I see them. The traditional stuff is preposterous, as I’ve shown in excruciating detail. Why give it any credit? And I don’t think a bit of false humility on my part would change anything: the dysfunction is too entrenched. That’s why instead I’m looking to build systems that would allow those inclined to do things differently to start afresh.
Polemic is a tricky art: you want to goad people and be entertaining without coming across as a jerk. I’m aware that I won’t always get the mix right. But that’s what blogs are for, maybe.
That’s fair, Ken: it’s true you have adjusted your position over the years. I can understand how disappointing it would be to put out such thoughtful analysis to receive…. silence.
You’re a contrarian: you see how the world could be different and better. That’s a special ability but can also be incredibly frustrating as the world is hard to change.
It’s important to remember your audience – contract lawyers – have spent years training and practicing contract drafting in the conventional way for years and maybe even decades. They take pride in their ability to draft contracts. Being a contracts lawyer is part of their identity. Now you’re telling them everything they’ve known and been doing is wrong. And you’re right. But if you want to change minds it needs to be approached with a level of sensitivity and compassion, understanding what people have invested.
If you suggest that lawyers don’t know how to draft or that judges don’t know how to analyze contract language, it’s not going to be well-received. Yes – it’s easier to call things as you see them, but not always the most effective for changing minds.
Finally, as for why people continue to draft the way they do, there are also practical considerations that I feel dominate. One challenge is convincing people that you’re right. The other is convincing them to care as much as you do about being right. When I drafted contracts, you convinced me you were right; however, there was always consideration of what clients, opposing counsel and upper management all expected. In the end if they expect contract language to look and feel conventional, which they do, you end up fighting a lot of battles and spending a lot of time and effort just to be right, when how you get evaluated is closing as many contracts as quickly and efficiently as you can. The odds of a dispute around any one contract – and it turning on one way of drafting or another – are low so practical considerations prevail.
So you have a really hard battle to fight – and I feel it is worth fighting – but unfortuantely you need to overcome a lot of inertia in favour of conventional drafting. It’s what you do and the fight you have in you is a big reason I respect you; all I’m saying is maybe giving thought to delivery could help.
Thanks, John. Three quick points!
This isn’t about it me or any disappointment. And besides, I know that many people value what I do. Instead, the lack of meaningful critique is of interest for what it says about traditionalists.
Yes, drafters are constrained by context. But even if you ‘re constrained, you’re better off for being an informed consumer of contract language.
Finally, in the face of black-hole forces of inertia, I really don’t think there’s any point in donning kid gloves. All I can promise is that I’ll try not to be a jerk.
And some day you will change that God-awful chapter on formatting.
I don’t know so much about the prior blog posts, but I suspect that you maybe overestimate how controversial it is to point out that judges aren’t so swell at interpretation. This comes as a shock to almost nobody who has ever dealt with judges.
I once put together a CLE program about statutory-interpretation basics. The speaker was a recently retired judge, who had spent decades on the bench. He began his presentation by admitting that, before this presentation assignment, he had never given any thought to the topic.
Thanks for the perspective. That’s depressing.