Contracts and Grammar, Prescriptivists and Descriptivists

Contracts_680x376[Co-written with Kathryn Piper]

We were excited–for two different reasons–to see a recent blog post on the Legal Writing Profs Blog titled “An Empirical Look at the Prescriptivist vs. Descriptivist Dilemma in Drafting.” The post actually leads to a more involved blog post by Ross Guberman titled “A Day in the Life of an American Contract” which lays out the descriptivist vs. prescriptivist dilemma and describes the gap between the kind of language that authoritative sources say should be used in contract drafting and the kind of language actually used in contract drafting. Guberman backs this up with a review of 25 contracts arbitrarily pulled from the SEC website all on the same recent April day.

The reason this post caught our attention is 1) we are currently developing a contract drafting curriculum for a new course (Drafting: Litigation Documents & Contracts) intended for non-native English speaking LLM students, and 2) descriptivist vs. prescritivist is a big theme in the world of applied linguistics and grammar, a theme that ran throughout my MA TESOL studies.

In case you’re not up on things in the linguistics/grammar world, professionals in the field have increasingly eschewed the prescriptivist grammar approach that so many of us learned growing up, ElementsOfStyleoften with the help of Strunk & White’s Elements of Style (see, e.g., Geoffrey K. Pullum’s “50 Years of Stupid Grammar Advice“) in favor of a more descriptivist approach to grammar. Prescriptivist grammarians rail against use of singular “they,” despite the fact that the English language fails to provide an inoffensive gender-neutral singular pronoun for certain situations, and despite the fact that we have no problem using “you” as both singular and plural. In fact, centuries ago there was a similar shift from a distinction between singular and plural forms of “you” to one form used for both singular and plural.

Prescriptivists would also prefer that we not end sentences with prepositions, even though that rule came from trying to force a mismatched Latin grammar element onto English in days of yore when Latin was considered a higher-status language. And prescriptivists like to preach avoidance of passive voice despite the many important functions of passive voice in our communications. In “50 Years of Stupid Grammar Advice,” Pullum actually points to several instances of Strunk & White contradicting their own advice in the very sentences in which they give the advice.

TheGrammarBookDescriptivists, meanwhile, are more interested in how we actually use grammar in real life. Many descriptivists conduct corpus-based research to determine how common certain practices are (such as using singular “they”) and try to determine if something is becoming or has become the new norm. Their work has led to greater awareness and understanding of the significant differences between written and spoken grammar as well as to publications such as Longman’s corpus-based grammar dictionary and applied linguistics textbooks such as The Grammar Book that have been training a new generation of language teachers, not to mention new corpus-based grammar textbooks for English language learners such as the Elements of Success: Grammar for Language Learning series.

It’s very much thanks to technology and the ability to access and analyze large data sets and share the results that we have the luxury of a more descriptivist approach to grammar as well as contracts today. However, I realized that whereas descriptivism is progressive in the context of linguistics and grammar, it ends up being conservative in the context of contract drafting.

DraftingContractsJust prior to sharing his research findings, Guberman pleads to the legal community to be descriptivists “just for once.” His descriptivism then reveals that, despite the legal community’s progressive calls for “plain English” in legal writing, the standard language for high-stakes, corporate contracts remains on a tight, traditionalist leash, consistently using words such as “shall,” “whereas,” “and/or” and “notwithstanding anything herein to the contrary.” This despite authoritative voices such as Tina Stark’s widely-used textbook Drafting Contracts: How and Why Lawyers Do What They Do admonishing students to avoid use of legalese and providing contrasting examples of “wrong” and “correct” contract language. (Note: We are actually big fans of Stark’s book and will be using it in our course. And her extensive focus on legalese versus more appropriate and updated alternative language is in fact a uniquely valuable resource when working with international LLM students.) The bottom line, as Guberman shows, is that despite logic telling us that there are better ways to linguistically express these ideas, contracts are about reducing risk. And messing with what’s comfortable and familiar is a risk that experienced lawyers don’t seem to feel comfortable taking.

In fact, the same dilemma continues to present itself in the grammar context, particularly with regard to academic writing. While texting and social media make clear–painfully at times–that language is constantly evolving and that rules are shifting, it’s still not acceptable in academic writing to end a sentence with a preposition. I can teach my students that the original rule is misguided. But of course I won’t be there to advocate for them in a future class when their prescriptivist professor takes points off for poor grammar. Like lawyers drafting high-stakes contracts, the students also need to reduce their risk.

This grammarian rift is interesting to think about in the legal context because we have to consider grammar as a set of conflicting hypothesis about how to effectively communicate, rather than a set of rules. Much like law itself is grounded in political theory but manifests as a set of black-letter instructions, those of us who look beyond the rules realize that they represent a society’s best guess at how to rule ourselves, and that they are works in progress.
As lawyers drafting contracts, miniature constitutions governing discrete bargains, we not only need to be aware of how the language will be interpreted by each party living in the now, but how a court or arbitrator trained in older language might fill in the gaps.  In other words, as voices such as Stark are no doubt aware, it is good training for tomorrow’s lawyers to notice not only the upside and downside to every deal, but the descriptive and prescriptive power of language they use to describe that deal.
And that concludes another day thinking and teaching at the intersection of law and language. Special thanks to Ross Guberman for doing the legwork and drawing attention to an intriguing perspective on law and language.

One thought on “Contracts and Grammar, Prescriptivists and Descriptivists

  1. Thank you for discussing my post and for your own work and comments! Teaching contract drafting to lawyers who are nonnative speakers is one of the hardest things I do. Think about how alien contract language is even to native speakers, and even to native speakers who have been practicing in corporate specialties for years. (Incidentally, I think the recommendations in Tina’s book are closer to the conventions of contemporary corporate practice than is the case with some other “write short sentences and avoid all legalese” contract-drafting books. And she has no problem with “shall” as long it’s attached to covenants.)

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