The New York Times has just published this depressing article by Adam Liptak on judges citing dictionaries. (To access it, you’ll need to comply with the NYT’s subscription plan.) For the reasons cited in the article, it’s generally a bad sign when a judge cites a dictionary. In particular, the notion of judges seeking to clarify the language of statutes … Read More
If you need to express that two different arrangements apply in different circumstances, it may be that the most convenient way to express those different circumstances is by using paired sets of parentheses. Here’s an example, which I’ve included in a draft article: “Total Disability” means that due to sickness or accidental bodily injury, (1) the member is unable to perform … Read More
Last week there was plenty of discussion on the blogosphere about the U.S. Supreme Court’s decision in Stanford University v. Roche Molecular Systems, Inc. I’ll let you read others for the gory details (among many others, go here for Bill Carleton’s take and go here for IP Draughts’ take). All that interests me is the assignment language used in the … Read More
This week and next, I’ll be heading to parts where I haven’t previously given my “Drafting Clearer Contracts” seminars. On Thursday, I’ll be in Morristown, New Jersey, for my first-every New Jersey seminar. For more information, go here. I acknowledge that it’s not a particularly exotic destination, but nerd that I am, my demands for novelty are easily satisfied. And … Read More
This May 2009 post on AdamsDrafting lists a bunch of words and phrases that you should exclude from your contracts. Now’s not the time for a comprehensive updating of that list, but I will add a word that I encountered in a contract the other day: especially. It occurs in 444 contracts filed on the SEC’s EDGAR system in the … Read More
This recent post includes links to early assessments of Koncision. Here are two more: this post by Carolyn Elefant on her My Shingle blog this post by Ron Friedmann on his Strategic Legal Technology blog So the response has been overwhelmingly positive, and it has come from commentators who are no pushover. If anything, I feel even more comfortable saying … Read More
A recent opinion of the Court of Appeals of New Mexico, Sabatini v. Roybal (PDF copy here), caught my attention. It reminded me how tricky it can be to distinguish between the sources of uncertainty in contract language. The phrase at issue was “private garage.” The district court had held that for purposes of a restrictive covenant, “private garage” meant only … Read More
From this blog post by Brian Rogers, aka The Contracts Guy, I learned of a recent Seventh Circuit case that considered the meaning of a contract provision that required the parties to use “best efforts” to reach agreement. Distinguishing this provision from other efforts provisions, the court concluded that all that this provision required was that the parties bargain in good faith. … Read More
Thanks to this post by Venkat Balasubramani on Eric Goldman’s Technology & Marketing Law Blog, I learned about the Ninth Circuit’s recent opinion in Simonoff v. Expedia. The bit of interest to me related to the following forum-selection provision: You hereby consent to the exclusive jurisdiction and venue of courts in Kings County, Washington … in all disputes arising out … Read More
Of late, I’ve been pondering the following notion: “Everyone thinks his own fart smells sweet.” It’s one of the “Adages” of Erasmus, the Renaissance scholar. And I think it explains much of the resistance to clearer contract language. Let’s take as my starting point the notion that the overwhelming majority of business contracts are constructed of language that varies from … Read More
