In my article Merger Agreements Are Poorly Drafted, published today in Corporate Counsel Now (go here for the article, go here for the related blog post), I discuss the implications of an analysis I did of drafting shortcomings in the merger agreement for one of the biggest deals of 2025.
Although this analysis is my most ambitious yet, I’ve done this sort of thing sporadically. Why engage in such criticism? Because before deciding what should be, you have to assess what is.
Shortly after I quit the practice of law in 2006 to focus on scholarship and training, I was asked why I was so unequivocal in my criticism. Instead of black-and-white, why not deal in shades of gray? My answer then was what it would be now: I want to help make contracts better, not pander to dysfunction.
Has all this criticism made me a crank? You might have encountered this aphorism: “If you run into an asshole in the morning, you ran into an asshole. If you run into assholes all day, you’re the asshole.” Virtually all the contracts I encounter exhibit significant drafting problems. But that doesn’t make me the asshole. As I explain in the article, I’m not assigning blame to countless individual drafters. Instead, the dysfunction is systemic.
But when I’m a critic, I try to offer an alternative. I do that in the Corporate Counsel Now article.
(That aphorism is from the show Justified. It’s a new take on an old notion. Whoever wrote that episode must be pleased at how the aphorism has made its way into the vernacular.)
