What’s Beyoncé Got to Do with Contract Drafting?

Today I put this on Twitter:

Y'all haters corny with that "tested language" mess
Copy-pasters, catch my fly, and my cocky fresh

— Ken Adams (@AdamsDrafting) February 29, 2016

It’s one of my more obscure tweets, so allow me to explain: I was channeling Beyoncé. Or more specifically, the first two lines of her new song “Formation.”

I haven’t paid much attention to Beyoncé. As a fifty-something guy, I have other, duller priorities. But when just before the Superbowl she released “Formation,” to much fanfare and chatter, I checked out the video. I liked it well enough, with its spare and somber opening, but more generally I was taken with the grit and sense of identity on display, and the understated challenge offered. It made me think of what I do.

Now, people, I’m not equating myself with Beyoncé, and I’m not equating inertia in contract drafting with entrenched racism—both cringeworthy notions. But I think there’s room for analogy.

Because any given deal will likely resemble previous deals, contract drafting is driven by precedent. As such, inertia—Isaac Newton’s “power of resisting”—holds sway. How should I respond to inertia? I could simply put my guidelines out there, and leave it at that. But if you expect to combat inertia by waiting for the hidebound to figure out for themselves the error of their ways, you’re going to have to wait until forever.

That’s why I permit myself to be more assertive. I gently mock the dysfunction of traditional contract language. I police the marketplace of ideas, pointing out that which doesn’t make sense—the more prominent your soapbox, the more astringent my analysis is likely to be. And if you denigrate what I do without good reason, I’ll give as good as I get. (That said, I’ve also been known to eat healthy quantities of crow.)

So that’s why I responded to the video of “Formation”—it’s an adroit bit of provocation aimed at the forces of pernicious inertia. It evidently hit home, given the indignant posturing that it prompted.

By the way, leaving aside the fact that it’s absurd to compare them, there’s one important systemic difference between the inertia that’s involved in racism and sexism and the inertia behind traditional contract drafting. Racism and sexism implicate society at large—you encounter it at work, at play, in dealings with government and businesses—so for us to make progress, society has to change. By contrast, in contract drafting, change happens one deal at a time. If you wish to promote a clearer, more modern alternative to traditional contract language, the only people you have to convince are those on your side of the table and those on the other side of the table.

That’s why I win my battle with inertia every time someone decides that what I have to say makes sense.

And now, here’s the video of “Formation”: