Dysfunction in Contract Drafting: The Causes and a Cure

The primary task in empirical research is describing the characteristics of whatever it is you’re researching, but usually you also attempt to explain your findings. The skills required for the former task differ from those required for the latter, so it’s not unusual that explanations offered by those who undertake research are superseded by better explanations subsequently offered by others. That comes to mind on reading The Three and a Half Minute Transaction: Boilerplate and the Limits of Contract Design, by Mitu Gulati, a professor at Duke Law School, and Robert E. Scott, a professor at Columbia Law School. It offers a case study of dysfunction in contract drafting, and then it suggests the causes of that dysfunction and how to eliminate it.

This article points out the shortcomings in that causes-and-cure analysis and offers its own.