The fall issue of the magazine Judicature contains my article with Vice Chancellor Laster of the Delaware Court of Chancery, entitled When Contracts Seek to Preempt Judicial Discretion. Go here for a PDF copy.
I leave it to others to judge the content, but I think this article gets high marks for originality in terms of the topic alone: I’ve not heard it mentioned in a general way, let alone written about.
In May 2016, I suggested in this post that this topic would be suitable for a student-written law-review note, but I scared off the one student who expressed interest, so ultimately I decided I’d have to write it myself. But I figured I’d need some help. Enter Travis Laster.
I got to know Travis during my law-firm days, when his firm acted as local counsel on a deal I worked on. That got me on his newsletter list. I treated that as an invitation to keep in touch, and we’ve exchanged emails sporadically over the years. I was delighted when he agreed to join me as co-author. Nine and a half months later, here we are.
I’m so grateful for an article to point to on this. I’ve a few of your pieces in my arsenal for that purpose already.
A few initial thoughts:
1. “Bossing a court around” is never a good look. But in some situations—and one you pointed out—bossy contract language merely achieves with less grace, and maybe less language, what the parties could equally achieve by statements about their intent. The law—which is how legislatures boss courts around—tells courts to honor intent, within limits. Denying a provision effect that could be achieved via intent, which is clear from bossy language, just because it’s bossy, seems wrong. Pillory the lawyers, sure. But give the litigants their deal.
2. Isn’t the clear advice on headings—technically and, frankly, ethically—to get them right? Neglected headings are incompetent. Misleading headings are unethical, especially with respect to non-lawyer readers, with whom we’re supposed to play soft. I don’t use these provisions in my own work anymore, and I don’t like seeing them in others’ proposals. In some really bad cases—I’m supposed to remember something about malice and incompetence here—I’ve been tempted to delete all the headings in my redline.
3. Given that so many “terms of art” are bunk, and that non-lawyers can’t understand even the ones that aren’t, why not adopt a general rule that valid terms of art _ought_ to be explained—both in terms of what factual statements they make, and the legal result those statements aim to invoke—every time? First, I’m not sure that’s repetition, since we accept that folks—even lawyer-folks—don’t usually know, specifically, what the terms they invoke mean. Second, it’s great pedagogy. Now you have to find out what that term means, and what it does. Oh, it’s not what you thought? Happens all the time.
Regarding headings, sometimes I use in a heading a term of art a reader might expect to see, but I don’t use it in the provision itself. An example is Warranties. In that case, the heading isn’t just surplussage.
Explicating all terms of art could be a nuisance. I’m not sure I’d want to come up with a simple alternative to perfect.
I’ve done the same with “Warranties”. Often with a different motivation: If counsel don’t see that word, and miss that the language beneath actually _is_ a bunch of warranties, they may have a cow.
Is there a running list somewhere—other than Mellinkoff—of valid legal “terms of art” with specific meaning?
Well, there’s Black’s Law Dictionary. But I think that whether you use a term of art, replace it, or supplement it depends on the term of art and the context.
Black’s is thick with legal “terms of art” in the sense of terms peculiar to, or with peculiar meaning in, legal speech. But as many have pointed out, most of those terms are peculiar, but not _specific_. They’re not “true terms of art” in the sense of bringing more precision or predictability to documents.
I’m after the latter. Not sure I’ve seen any currently-maintained list.
Amy list will be devoid of context, so …