Category Archives: Interpretation

Jeremy McClane, ‘Boilerplate Semantics: Judging Natural Language in Standard Deal Contracts’

ABSTRACT Many corporate finance lawsuits involve the interpretation of commonly-used boilerplate contracts, the meaning of which is thought to be widely understood. In some cases, however, judges interpret these contracts in ways that upend market actors’ expectations about the meaning of terms and frustrate the presumed intent of the parties. Given this experience, and the […]

Aditi Bagchi, ‘Risk Averse Contract Interpretation’

ABSTRACT Boilerplate reveals the inadequacies of a certain stylized approach to contract interpretation. This essay argues, however, that boilerplate does not require its own, conceptually unique interpretive apparatus. The methods we use to read boilerplate can be derived from principles that inform contract interpretation in general. We can treat it ‘normally’ for two reasons. First, […]

Klapper, Schmidt and Tarantola, ‘Ordinary Meaning from Ordinary People’

ABSTRACT Ordinary meaning has an extraordinary impact. Across virtually every field of law, statutory interpretation battles of enormous consequence hinge on what judges perceive to be the ‘ordinary meaning’ of law’s words and phrases – how an ordinary person would interpret a provision. In making that determination, judges across the ideological spectrum reach far and […]

‘Legal Theory Lexicon: Interpretation and Construction’

“Every law student learns that the relationship of a legal text to the resolution of a particular case can be complex. What does the text mean? How does that meaning translate into legal doctrine? And how does the doctrine apply in the context of the facts of the case? One way to think more clearly […]

‘Indirect and consequential loss exclusions – is it time for change?’

“Parties to construction contracts often include clauses in their contracts seeking to exclude claims for indirect and consequential losses, believing that such clauses are likely to prevent claims for financial losses such as lost profits and business interruption. Contracting parties may consider such financial losses to be beyond the ordinarily recoverable losses flowing from a […]

Ryan Catterwell, ‘Purposive Contract Interpretation and the High Court’

ABSTRACT Purposive justification plays a key role in contract interpretation. As this paper demonstrates, the High Court has adopted a sensible and principled approach to purposive construction. The Court has paid due regard to the contract text, while still enforcing the objects secured by the contract (where appropriate). Through a detailed analysis of 8 recent […]

Francis Mootz, ‘Corpus Linguistics and Vico’s Lament: Against Vivisectional Jurisprudence’

INTRODUCTION … In this essay I argue against the deep impulse that motivates the contemporary turn to corpus linguistics precisely because this enticing ‘new’ method reinscribes the profoundly misguided theoretical premise of modern law that there are ontological and epistemological distinctions between the law and its application to a specific case. In his oration at […]

Diggory Bailey, ‘Interpreting Parliamentary Inaction’

ABSTRACT This article considers the interpretive significance of legislative inaction. Section I considers the nature of arguments based on legislative inaction. Section II explores the practical, conceptual and constitutional problems with trying to rely on legislative inaction as an interpretive aid. Section III concludes that attempts to draw inferences from legislative inaction alone are deeply […]

Lawrence Solan, ‘Corpus Linguistics as a Method of Legal Interpretation: Some Progress, Some Questions’

ABSTRACT Corpus linguistics is becoming a respected method of statutory and constitutional interpretation in the United States over the past decade, yet it has also generated a backlash from a group of scholars that engage in empirical work. This essay attempts to demonstrate both the contributions and the risks of using linguistic corpora as a […]

‘A Contracts Tool You Can Use: Model Standstill/Tolling Agreement’

“Jonathan Lipson (top, right) and Norman M Powell (bottom, right) offer a model standstill/tolling agreement to address these uncertain times. The agreement is available both in an annotated and a clean format. The authors explain their motivations for creating the document here …” (more) [Jeremy Telman, ContractsProf Blog, 13 May]