[Trigger warning: navel contemplation follows.]
This morning I noticed the following two combative tweets, courtesy of @section_sign:
Regular readers will know that I regularly invoke the marketplace of ideas. Well, is the marketplace of ideas in fact horseshit?
I have nothing to say about that Tower of Babel, the broader marketplace. The marketplace in which I ply my wares—the one relating to contract-drafting usages—is a relatively sleepy place. But you do find plenty of bad ideas there. For a recent example, see this post. And check out the relevant LinkedIn groups; see this 2013 post about that.
I regard it as my duty not only to promote my ideas but also critique bad ideas I come across, if the person offering them has a big enough soapbox for them to matter. I recognize that a given critique is likely to reach only a fraction of those exposed to the bad idea. Nevertheless, I’m not disheartened, for three reasons.
First, in the marketplace, quantity is as important as quality, and it appears that no one has my stamina for patrolling this particular marketplace. Full-time since 2006, I’ve written books, articles, and blog posts at a rate that no one else has comes close to matching. (Again, the topic in question is the building blocks of contract language.) I’m not suggesting that that makes me some sort of hero, but I reckon that over the years I’ve been able to drown out a lot of bad ideas.
Second, the medium is the message. It’s to my benefit that the primary platform for my views is a book published by the American Bar Association that has sold tens of thousands of copies and will soon be in its fourth edition. Relying on someone else’s expertise involves a leap of faith, as a lot is at stake in contract drafting. I like to think that my book projects a certain credibility that makes it easier for readers to make that leap.
And third, I’m at peace with the fact that most people who work with contracts are unaware of what I do, and that you’d have to look hard to find signs that my work has had any effect on general standards of contract drafting. (See this 2014 post about that.) Unlike politics, contract-drafting usages aren’t subject to popular vote. If you see value in my recommendations and wish to incorporate them in your contracts, the only people you have to convince are those on your side of the table and on the other side of the table.
So yes, the marketplace of ideas is routinely chaotic, unedifying, and brutal, but I’m OK with my little corner of it.
My thanks to @section_sign for prompting me to think about this.
7 thoughts on “The Marketplace of Ideas Is Horsesh*t: Discuss”
Ken, thanks for showing us what can be achieved with technical excellence, wit and stamina. Regarding the latter, it’s a secret sauce that few discuss. And for the record, I think your little corner of the world is pretty cool.
Thank you, Melissa. This sort of feedback helps me keep plugging away.
I think the complete rejoinder to the second tweet is: “You mean, like this one?”
As I noted, I’m not about to comment on broader discourse, but I think one could make a halfway plausible case for it being effed up.
Have you thought about searching EDGAR for the language of one of the more unusual recommendations you make? Not the use of shall or the like, but something where your formulation is rare. Examples might be:
“the parties therefore agree as follows”
“the parties are signing”
“each party is signing”
“from the perspective of”
“New York time”
“one or more of”
“multiplied by the result of”
This would be especially useful if you can limit the searches by year, and show a change year-over-year.
Hellooooo! *raps on Lemens’s noggin* Wakey wakey! Check out the final link in the post. :-)
I suppose I could run some other tests. But ultimately, the validity of my recommendations doesn’t depend on how popular they are. But you know that.
Read the links? What kind of crazy is that?