Trade Groups, Criticism, and Effecting Change in Contract Drafting

I used to think that trade groups were a promising route to change. After all, they should have a broad perspective. They should be able to achieve economies of scale. And they should have resources. But I no longer take that for granted.

Change involves determining that the current way of doing things doesn’t work as well as it should and instead adopting another way of doing things. Promoting change necessarily involves discussing, in detail, what doesn’t work. For example, if I write halfway decently, it’s because over the course of many years I’ve benefited from having others gently demolish my work. I figure that improving contract drafting should operate in the same way.

Trade groups are in the business of keeping their members happy. Using criticism to promoting change implies that some of your members are doing it wrong. If you name names, you risk alienating those members. So trade groups specialize in discussing change in general terms, so as not to make it threatening. But if your discussion of change isn’t threatening to those in the path of change, it’s perhaps too airy-fairy to do much good.

This all came to mind after a trade group declined to publish an article I submitted to them. One of their objections related to my critiques of a Google contract (here) and IBM’s cloud-services contract (here)—my contact at the trade group said that “your referenced materials are written almost with an intent to offend.”

But people get offended for all sorts of reasons, so I can’t make not offending people my lodestar. Instead, I aim to avoid snark. That requires vigilance and tweaking—for example, in one recent blog post replacing “botched” with “mishandled.” And the only names I name are those of companies big enough that they should be immune to being offended, as well as those of people who are active in the marketplace of ideas.

If you’re offended because I challenged the way you’re used to doing things, I can’t do anything about that.

I’m not the only person to have reservations about trade groups. For example, go here to read @gnawledge’s jeremiad about bar associations.

But all this relates to just one part of the activities of trade groups, and some trade groups happen to be particularly sensitive. I get on just fine with plenty of trade groups. For example, I’m looking forward to doing a “Drafting Clearer Contracts” seminar in Las Vegas on December 7 for the National Association of Education Procurement. Vegas, baby!