I’ve often talked about on social media that I used to be engaged on an article about how the phrase materials is ambiguous. Effectively, I completed it. The title is The Phrase Materials Is Ambiguous in Contracts, Why That’s a Downside, and Methods to Repair It. It will likely be printed subsequent yr in Scribes Journal of Authorized Writing, however I’ll put a “forthcoming” model on my website as quickly because it’s obtainable.
For the heck of it, right here’s the not-particularly-thrilling again story.
The article is brief by regulation assessment requirements—6,000 phrases. That’s considerably shorter than even the minimal some regulation opinions give for essays reasonably than articles (one regulation assessment stated 15,000 phrases), so it’s secure to imagine most law-school-based regulation opinions would go on it. That doesn’t break my coronary heart, as a result of I’m not a fan of law-school-based regulation opinions and the law-review course of. (See this 2015 weblog publish about that.) For lulz, I submitted it to 9 law-school-based regulation opinions, however I didn’t hassle to attend to listen to again from all of them earlier than agreeing to have Scribes publish it.
As a result of I’m not an instructional, I don’t have to fret about chasing status. As an alternative, all I would like from a journal is that or not it’s respected and that or not it’s obtainable on Westlaw. Scribes Journal of Authorized Writing suits the invoice. I’m acquainted with it, as I printed this text within the 2014-15 challenge. It’s not law-school based mostly. As an alternative, it’s produced by Scribes, whose tagline is “The American Society of Authorized Writers.”
And the place I publish it received’t have an effect on the article’s attain. Individuals don’t learn problems with a regulation assessment like they learn problems with, say, The New Yorker. As an alternative, folks search out related articles, wherever they may be. So it’s not as if publishing as a substitute on this or that regulation assessment would have uncovered me to a brand new readership.
I may have printed the article in a special sort of publication, however I needed my argument to be absolutely supported with footnotes, as a result of this text may be essentially the most contrarian piece I’ve written. Not as a result of it’s in some way extra insightful than, say, my 2019 article on efforts provisions (right here) or my 2015 article on represents and warrants (right here). As an alternative, what makes this text totally different is that materials options in big-deal litigation, so it will get extra consideration.
Educated folks have seemed intently at my article, so I’m assured I acquired it proper. The one pushback I acquired was from a law-school professor who insisted that regardless of the paradox, BigLaw has a shared understanding of what materials means. I discovered that sufficiently bewildering that I added to the article a bit addressing it.
A slimmed-down model of the article makes up the primary a part of the revised chapter 9 (Materials and Materials Hostile Change) in MSCD5. Let’s see which is out there first, MSCD5 or the “forthcoming” model of the article.