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It’s too early to stand on the poop-deck with a mission accomplished banner, but OneNDA is getting there. So, in a gentle further shove, here some observations about what it could all mean. | It’s too early to stand on the poop-deck with a mission accomplished banner, but OneNDA is getting there. So, in a gentle further shove, here some observations about what it could all mean. | ||
====Simplification beats technology==== | ====Simplification beats technology==== | ||
A counter-intuitive proposition: ''if you simplify | A counter-intuitive proposition: ''if you simplify, you may not need technology''. There is no need for automation, document assembly, even a mail merge is probably over-engineering. This is to observe that the conundrum facing modern legal eagles is not one of ''[[service delivery]]'', but ''[[Legal service|service]]'' in the first place. Fix the ''content'', and the delivery challenges fix themselves. | ||
This leads to | This leads to a paradox: ''if you simplify properly, it is easier to apply technology''. To design for technology, design for ''no'' technology. The fewer options, subroutines, caveats and [[conditions precedent]] in your legal forms, the easier you will find it to automate them. You will get all kinds of second order benefits too: fewer complaints, fewer comments, less time auditing your monstrous catalogue of templates. | ||
The [[JC]]’s [[maxim|handy aphorism]] here: {{maxim|first, cut out the pies}}. | |||
====It’s not the [[form]], or even the content, but the '''consensus''' that matters==== | ====It’s not the [[form]], or even the content, but the '''consensus''' that matters==== | ||
Once upon a time — until 2021 —if you devised your own short-form NDA, however elegant, you could expect it to be ''rejected''<ref>There ''is'' a “battle of the forms”, even if not apparent to the [[doyen of drafting]].</ref> or [[Mark-up|marked up]] to ''oblivion'' by the [[rent-seeking]] massive.<ref>The [[JC]] knows this, because he’s tried it. No [[counterparts]] clause! No waiver of jury trials! It was still worth doing, but it didn’t completely solve the problem.</ref> | |||
Once — okay, ''if'', but here’s hoping — the short-form NDA achieves ''wide-spread community commitment'' the dynamic will be different. Those who built it would use it, sure. But those who ''didn’t'' would look upon it not with suspicion, but with trust: “this is a community standard: I can [[Comfortable|get comfortable]] using it too”. No-one got fired for following the crowd. | |||
OneNDA is | OneNDA is a community effort: interested people came from far and wide to help; everyone<ref>Everyone except [[Ken Adams|the doyen of drafting]] himself, that is: https://www.adamsdrafting.com/onenda-is-mediocrenda-thoughts-on-a-proposed-standard-nondisclosure-agreement/ </ref> checked their agenda at the door. This was what Wikipedians call “[https://en.wikipedia.org/wiki/Barn_raising barn-raising]”. The community came together for the greater good of all. | ||
Now once a barn is raised and community feels ownership in it, it is the very ''fact'' of the barn, rather than how it was built or what it is made of, that is its value. Community assets accrue to the benefit of everyone. The | Now once a barn is raised and community feels ownership in it, it is the very ''fact'' of the barn, rather than how it was built or what it is made of, that is its value. Community assets accrue to the benefit of everyone. The structure, day one, might not be perfect — is anything? — but nor is there any interest in undermining it, much less setting fire to the roof: ''it is in everyone’s interest that the barn does the job it was built for''. ''Everyone'' has [[skin in the game]]. The more people use it, the more they are incentivised to make sure it stands. The more people use it, the more [[Perfection is the enemy of good enough|“good enough” ''becomes'' “perfection”]]. | ||
Thus, technical complaints that, for example, it refers to “the public domain” and not just “public” — I mean, what a ''[[Knee-slide and jet wings|zinger]]'' — fall away because (if they didn’t already) ''everyone knows what it means''. If there are ten thousand standard NDAs out there that use the expression “public domain”, then no court (and, frankly, no plaintiff) is going to side with a pedant against the weight, and interests, of community consensus. | |||
====The hard lines discourage [[rentsmithing]] around the edges==== | ====The hard lines discourage [[rentsmithing]] around the edges==== | ||
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But it is hard to rentsmith without a “host” contract. By drawing hard lines around itself, the OneNDA makes itself ''unavailable to act as that host''. It ''frustrates'' the [[rentsmith]]. The party wanting them has to create a new agreement for the purpose, but it is not likely to do that for fear of looking stuipid. ''The standard template discourages peripheral negotiation''. This is an additional, unintended benefit. | But it is hard to rentsmith without a “host” contract. By drawing hard lines around itself, the OneNDA makes itself ''unavailable to act as that host''. It ''frustrates'' the [[rentsmith]]. The party wanting them has to create a new agreement for the purpose, but it is not likely to do that for fear of looking stuipid. ''The standard template discourages peripheral negotiation''. This is an additional, unintended benefit. | ||
====The knee of the curve==== | |||
Creating a simple and standard alternative has a nice effect, too, on the legal complexity curve. It pulls it down and to the right. | |||
{{sa}} | {{sa}} | ||