OneNDA

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Don’t just read about it here: go see: https://www.onenda.org

Legal eagles love the idea that standard, boilerplate, tedious terms that make up the lion’s share of commercial legal discourse are special. Everyone — not just lawyers, come to think of it — likes to believe herself special, privy to something critical; dangerous; delicate — information that, should it fall into the wrong hands, may wreak great ill upon its owner or the poor unsuspecting random.

But the quotidian is a utility, not an asset. Boilerplate is a common utility; a free public resource, and not some secret sauce that keeps battalions of legal eagles in well-paid but soul-destroying work. No type of legal contract is more boilerplate than an NDA. The NDA is pure, abstracted, essence of boilerplate. Boilerplate is all there is.

Kudos, therefore, to the team at the Law Boutique for doing something about it. The JC will put his sclerotic old shoulder to the wheel, for whatever that is worth and commends his friends, relations and readers; especially those who occupy places in the firmament higher than his own — that’s more or less all of you — to do what you can to get your own organisations behind this excellent initiative. Start with the NDA, who knows where it may lead?

Againsdt my darkest suspicions, OneNDA managed to defend against the inevitable special pleading, committee drafting, the pedantic culpa in contrahendo-style commentariat to which we agents of the tragic commons resort by irrepressible force of habit: through sheer willpower OneNDA generated a nice, simple, pleasant first edition. Three preliminary observations. Four, actually:

Simplification beats technology

Two counter-intuitive propositions:

• If you simplify properly, you don’t need technology. There is no need for automation, document assembly, even a mail merge is probably over-engineering.
• If you simplify properly such that you don’t need technology, it makes it easier to integrate into technology.

This is called irony.

It’s not the form, or even the content, but the consensus that matters

If you devised your own beautifully short NDA form, you could expect it to be rejected or marked up to oblivion by the rent-seeking massive. The JC knows this, because he’s tried it. No counterparts clause! No waiver of jury trials! It is a constant battle to just to save the template from its own middle-aged spread.

But if a short-form NDA had wide-spread community consensus — OneNDA is not there yet, but it’s getting there — the dynamic would be very different.

OneNDA was a community effort; interested people came from far and wide to offer to help: Gym Shark and Coca-Cola; Barclays and Deliveroo — and everyone who got involved checked their agendas at the door. There was a common goal of solving a perennial problem. This was what the Wikimedans call a “barn-raising” effort. The community came together for the greater good of all.

The community doesn’t come together nearly as often as it should, does it?

Now once a barn is raised, the community feels ownership in it. The very fact of the barn, rather than how it was built or what it is made of, acquires a value of its own. No-one (in the community) has any interest in undermining the foundations or 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.

So through common use, the OneNDA will form its own standard. It will grow strong: in this way are legal principles formed — as matters of sociological fact, not abstract legal logic.

The hard lines discourage rentsmithing around the edges

There is a subtle advantage to the standardised form that may accrue should OneNDA go nationwide. It will dampen peripheral legal-eaglery around small, irritating edge cases.

See also

• Confidentiality agreement
• ClauseHub: theory
• ClauseHub
• Secret sauce