The quotidian is a utility, not an asset
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Legal eagles love the idea that the standard, tedious terms that make up the lion’s share of commercial legal discourse are special.
Then again, we all — not just lawyers — like to believe our own domain is sacred: that we are privy to something critical; dangerous; delicate — arcane learning that, should it fall into unskilled hands, may wreak great ill upon the bystanding world.
Make way: I’m a doctor.
But our dark secret: much of what we do, to get to those subliminal moments of rarefied artistry, we do on autopilot. To win Le Mans, first keep the engine tuned, the tank filled and the tyres pumped up. Then drive like Stirling Moss.
Boilerplate is the spark-plugs and fan belts of legal machine: workaday engineering that makes stuff go. It is system 1: fast thinking: coded, compiled, engineered into the foundation. What we want from it is reliability. it cannot win us the race, but it can help stop us losing it, by working dependably without breaking down.
“Working” means “going in easily” — without argument — and “being commonly understood”; at the limit, being able to withstand scrutiny before the King’s Bench Division, though categorically not being written for a judge.
That quality is not intrinsic to the boilerplate itself, but is a function of what the community thinks it means. There is an emergent strength in consensus: if everyone uses it, it is more effective, by itself, regardless of the cleverness of its engineering. Law is a sociological phenomenon, first and foremost. Everyone knows that “in the public domain” means “public”. No-one would ever take that point.[1] Not, at least, as far as court.
We should therefore regard boilerplate as a public resource. A utility. Not special sauce, not an asset, not “part of the magic”. We should not extract rent from it. Lawyers don’t help anyone, or nourish their own souls, by acing boilerplate.
So, folks, let it go. Set your boilerplate free.
The quotidian is a utility, not an asset.
If we were to see the standard facilitating text by which our clients tether their fortunes to each other not as a kind of magic, but as a free, common, public resource this would not put battalions of legal eagles out of work, which seems to be their operating assumption.
Far from it: it would allow the legal eagles to take their building blocks as read, and concentrate on valuable work.
OneNDA is a brave adventure along this road. Wonder where it will lead?
See also
- Gizmo pelmanism
- Intellectual property
- Automated contract review
- Automation eliminates value but not risk
- ↑ The doyen of drafting is not no-one, obviously.