From Copy to Reference — /dev/lawyer
To hasten the day when lawyers share, publish, and incorporate more from standards, combine incorporation by reference with copy-and-paste today.
Plenty of legal drafters see that we should really be incorporating more standard language by reference, instead of copy-pasting and short-order cooking. We’d have more fun that way, and clients would be better served. But it is much easier to see how much better things could be than how to get our profession there en masse.
Fortunately, there’s an obvious theory of change: Shift from copying to referencing by doing both for a while. Mounting experience shows this path can be walked in practice.
In simple social terms, unfamiliarity carries a cost. Even among those used to incorporating terms, seeing a permalink in a proposal is still weird. Referencing a pricey dead-tree tome, on the other hand, passes normally. A huge advantage of incorporating standard language by reference is reviewing once and recognizing many times later, in new contexts. But until taking parts by reference becomes widespread, most peers reading our work won’t get that benefit. They’ll see what we reference for the first time, every time, and feel the way we all feel when one short document ends up weaving a big spider web out to a dozen others.
Several arbitration services publish recommended language for contracts. Even those of us who’ve put that language into our own drafts have to review it from nil again when we see it in someone else’s. We can do unto our readers better by adding comments to the language we copy like so:
