Contract as Swag

33 Pages Posted: 7 Sep 2019 Last revised: 24 Sep 2019

See all articles by John F. Coyle

John F. Coyle

University of North Carolina School of Law

Joseph M. Green

Thomson Reuters Practical Law

Date Written: September 4, 2019

Abstract

In the past, legal scholars have analogized the contract to a product, a social artifact, and a form of technology. In this Article, we suggest that contracts may also be usefully analogized to swag. The term “swag” refers to branded merchandise that is given away for free to people who attend or participate in an event. Companies and law firms increasingly give away contracts — and specific contract provisions — to contract users with the goal of enhancing their reputations. In so doing, they deploy their contracts in a manner that bears more than a passing resemblance to a water bottle or tote bag emblazoned with the name of a law firm.

There are a number of benefits that flow from conceptualizing contracts as a form of swag. First, the analogy helps to explain why lawyers would invest time and energy in developing contract innovations that are ineligible for formal intellectual property protections. Second, the analogy provides important insights into how and why some contractual innovations become widely known in the years after their creation while others languish in obscurity. Third, and finally, the analogy highlights the futility in attempting to develop an all-encompassing theory of contractual innovation.

Keywords: contract, swag, metaphor, analogy, SAFE, KISS, poison pill, contractual innovation, intellectual property, diffusion

Suggested Citation

Coyle, John F. and Green, Joseph, Contract as Swag (September 4, 2019). Penn State Law Review, Forthcoming; UNC Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3447963

John F. Coyle (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919-843-9634 (Phone)

HOME PAGE: http://www.law.unc.edu/faculty/directory/coylejohnf/

Joseph Green

Thomson Reuters Practical Law ( email )

New York, NY
United States

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