This discussion will focus on a novel approach to contract drafting instruction. This conversation will apply not only to transactional clinics and drafting courses, but also to policy advocacy programs that engage in legislative drafting.
In contract drafting and negotiation, there is a wide gap between theory and practice. Traditional academic literature assumes that parties write economically efficient contracts that optimize “front-end” transaction costs and “back-end” enforcement costs. In fact, most contract drafters do nothing of the sort, often disregarding litigation risks altogether. Law school textbooks do little to ameliorate this situation, with almost no guidance to encourage efficiency. Across countless practice areas, these shortcomings leave lawyers underprepared and clients underserved.
In a forthcoming article, I propose to bridge this gap through heuristics—that is, simplified strategies for making complex judgments. I focus on the choice between vague and precise contract language, one of a drafter’s central decisions. To explain how to choose strategically and efficiently between these options to advance a client’s interests, I have developed a decision tree appropriate for both law students and practicing lawyers.
This session will begin with a description of the choice between vague and precise language, including an overview of the relevant academic literature. We will then enter breakout rooms to discuss our different approaches to teaching this subject. Next, representatives from each group will share their findings with the larger group. After synthesizing these reports, we will assess the needs for further educational resources and approaches. To meet these needs, we will review my proposed decision tree, explain its purpose and structure, and demonstrate its utility through hypothetical examples. Finally, we will consider how this tool can be effectively used in the classroom and, more broadly, how heuristics could facilitate other complex decisions in legal practice.