Contract as Swag
33 Pages Posted: 7 Sep 2019 Last revised: 24 Sep 2019
Date Written: September 4, 2019
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
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