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Lessons for contract drafters from the battle to replace Scalia: Someday the shoe might be on the other foot

Be careful what you ask for — because someday the shoe might be on the other foot. That’s a useful lesson for contract drafters from old video footage of then-Senator Joe Biden. In a June 1992 speech, the vice president supposedly contradicted President Obama’s position about nominating a replacement for the late Justice Antonin Scalia.* See, e.g., the New York Times article about Biden’s 1992 speech. As a Times columnist put it, Biden’s words are now coming back to haunt him and his boss.

Contract drafters should likewise think about what might happen if someday the shoe were to be on the other foot: the “killer” contract provisions they now seek to force on the other side might come back to haunt them too.

For example:

  • The lawyers for Trump Corporation learned the hard way that the standard Trump lease-agreement form wasn’t so wonderful when Trump agreed to live under the agreement as the tenant and not as the landlord;
  • When two companies entered into a confidentiality agreement, the agreement provided only for the protection of one party’s information, not that of both parties. Later, the party that was receiving the other party’s confidential information later disclosed its own confidential information to the other party — and a court held that this afterthought disclosure destroyed the trade-secret rights in the later-disclosed information. See Fail-Safe, LLC v. A.O. Smith Corp. 674 F.3d 889, 893-94 (7th Cir. 2012) (affirming summary judgment for defendant).

For more thoughts, please see my paper, Getting a Workable Contract to Signature Sooner.

* Vice-President Biden has said that his 1992 remarks are being quoted out of context; I can see some marked distinctions between the Supreme Court situation that he was addressing then, versus today’s battle over replacing Justice Scalia, but that’s a discussion for another time and place.


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