I’m curious what you mean by enforced scope and modularity in a contract. As a lawyer (though one who rarely works with contracts), I agree that the nested series of if-then’s is common, but I don’t have a good sense of what you’re suggesting as an alternative.
Quintor
Karma: 35
Thanks, that’s an interesting idea, and not one I’ve seen before.
2 potential issues come to mind:
1. As you noted, a key goal is to reduce ambiguity as much as possible. An enforced scope provision opens up the possibility that a court will nullify another provision for being in the wrong place. This adds ambiguity to the contract, especially because at first there wouldn’t be any court decisions on how they interpret enforced scope provisions. I’m not sure off hand how serious of a problem this would be—maybe the dividing line between covenants and representations is clear enough that no provision might be interpreted to create both, for example.
2. Unlike software development (I expect), negotiating contracts is somewhat adversarial. Adding new types of provisions, or even deviating from common (“market”) language on a given topic raises an inference that you’re trying to pull one over on the other side. That is, adding an enforced scope provision could be seen as an indication that you think there’s some other provision that might be invalidated to your advantage.
These both weigh against creativity in contract drafting, which helps explain why there’s so much copy and pasting of precedent contracts.
I’m similarly positioned to you, but have the opposite impression: I feel like I learned a lot from law school.
One possibility is that your “don’t remember anything” is measuring something different than my “learned a lot.” It’s certainly true that I can’t recall on command the three parts of X test that I haven’t used since law school. Indeed, I most likely couldn’t name all of the courses I took in law school!
But:
1. If I see a very brief overview of something I learned in law school, a lot of other information that I couldn’t recall on cue will snap back into place.
2. When an issue that touches on something I learned in law school comes up in my litigation practice, I may not remember what the rule I learned in law school was, but I remember that there is a rule and roughly where/how to find it.
3. With regard to learning how to learn, I can much more easily understand new areas of law than I could early in law school. I would describe this as being due to a combination of the skill of “learning how to learn” and background knowledge. It’s true that no one in law school explicitly tried to teach me how to learn, much less gave me feedback on it. But it’s nonetheless something I picked up from law school.
Alternative hypotheses:
1. This reflects that fact that, at least by Biglaw standards, my day to day work is relatively similar to law school (lots of appellate work and research/brief writing, which is far closer to what law school typically teaches than discovery heavy pre-trial work or transactional lawyering).
2. I did much more and/or different studying. Almost all of my learning in a class came from time-intensive process of making an outline for the class (no flash cards or spaced repetition, but my tests were almost all open-note, so memorization was never the goal). My impression was that classmates who simply read their notes and outlines made by other people did not learn as much contemporaneously, and I would definitely expect they forgot more over time.