I’ve occasionally mentioned on social media that I was working on an article about how the word material is ambiguous. Well, I finished it. The title is The Word Material Is Ambiguous in Contracts, Why That’s a Problem, and How to Fix It. It will be published next year in Scribes Journal of Legal Writing, but I’ll put a “forthcoming” version on my site as soon as it’s available.
For the heck of it, here’s the not-particularly-thrilling back story.
The article is short by law review standards—6,000 words. That’s significantly shorter than even the minimum some law reviews give for essays rather than articles (one law review said 15,000 words), so it’s safe to assume most law-school-based law reviews would pass on it. That doesn’t break my heart, because I’m not a fan of law-school-based law reviews and the law-review process. (See this 2015 blog post about that.) For lulz, I submitted it to nine law-school-based law reviews, but I didn’t bother to wait to hear back from all of them before agreeing to have Scribes publish it.
Because I’m not an academic, I don’t have to worry about chasing prestige. Instead, all I need from a journal is that it be reputable and that it be available on Westlaw. Scribes Journal of Legal Writing fits the bill. I’m familiar with it, as I published this article in the 2014-15 issue. It’s not law-school based. Instead, it’s produced by Scribes, whose tagline is “The American Society of Legal Writers.”
And where I publish it won’t affect the article’s reach. People don’t read issues of a law review like they read issues of, say, The New Yorker. Instead, people seek out relevant articles, wherever they might be. So it’s not as if publishing instead in this or that law review would have exposed me to a new readership.
I could have published the article in a different kind of publication, but I wanted my argument to be fully supported with footnotes, because this article might be the most contrarian piece I’ve written. Not because it’s somehow more insightful than, say, my 2019 article on efforts provisions (here) or my 2015 article on represents and warrants (here). Instead, what makes this article different is that material features in big-deal litigation, so it gets more attention.
Knowledgeable people have looked closely at my article, so I’m confident I got it right. The only pushback I got was from a law-school professor who insisted that despite the ambiguity, BigLaw has a shared understanding of what material means. I found that sufficiently bewildering that I added to the article a section addressing it.
A slimmed-down version of the article makes up the first part of the revised chapter 9 (Material and Material Adverse Change) in MSCD5. Let’s see which is available first, MSCD5 or the “forthcoming” version of the article.