Category Archives: Interpretation

Special Issue of Statute Law Review on Adjudication

Special Issue on Adjudication: What Gives Meaning to Statutory Rules and Constitutional Provisions? (Christopher Walshaw) Recent Developments in Statutory and Constitutional Interpretation (Christopher Walshaw) Ordinary Meaning and Empiricism (Brian G Slocum) Law as Narrative: Narrative Interpretation and Appropriation as an Element of Theft (Steven Cammiss) The Principle of Legality and Legislative Intention (Robert French) Legislative […]

Joshua Silverstein, ‘Contract Interpretation Enforcement Costs: An Empirical Study of Textualism Versus Contextualism Conducted Via the West Key Number System’

ABSTRACT This Article sets forth an empirical study of a central issue in the judicial and academic debate over the optimal method of contract interpretation: Whether ‘textualism’ or ‘contextualism’ best minimizes contract enforcement costs. The study measured enforcement costs in twelve ways. Under each of those measures, there was no statistically significant difference in the […]

Jeremy McClane, ‘Boilerplate and the Impact of Disclosure in Securities Dealmaking’

ABSTRACT Capital markets deals, like many kinds of business transactions, are built on a foundation of copied and recycled language – what many call boilerplate. Regulators and the bar periodically call for less reliance on boilerplate, but despite these pressures, boilerplate remains a fixture of ever-growing securities disclosures. This Article explores why boilerplate persists and […]

Aditi Bagchi, ‘Interpreting Contracts in a Regulatory State’

ABSTRACT Some scholars would limit courts to the text of written agreements when interpreting contracts on the theory that parties meant what they said, and said what they meant. Other scholars would have courts take into account the factual context surrounding contract formation. Both sides of this debate assume that contract interpretation is largely limited […]

Adam Perry, ‘Strained Interpretations’

ABSTRACT Judges often give statutes strained interpretations. What makes an interpretation strained? What, if anything, justifies a strained interpretation? Is there always a point past which an interpretation would be too strained, or are there some interpretations which judges are entitled to adopt, whatever a statute says? I claim to answer all of these questions. […]

James Grimmelmann, ‘All Smart Contracts Are Ambiguous’

ABSTRACT Smart contracts are written in programming languages rather than in natural languages. This might seem to insulate them from ambiguity, because the meaning of a program is determined by technical facts rather than by social ones. It does not. Smart contracts can be ambiguous, too, because technical facts depend on socially determined ones. To […]

Just Published: Statutory Interpretation in Private Law (Prue Vines and M Scott Donald eds)

In the past 50 years private law has undergone a revolution: statutes are now prevalent in every area. This book considers how judges in private law cases should respond to this change. How are statutes to be interpreted in this area with its deep historical roots, and is it reasonable to think that statutory interpretation […]

Simon Connell, ‘Prescriptive and Holistic Contextualism: Emerging Variants of Modern Contract Interpretation’

ABSTRACT Debate over the proper approach to modern contract interpretation continues even in this era of modern contract interpretation where context is always considered. This paper identifies and contrasts two rival approaches to contract interpretation: ‘prescriptive contextualism’ which demands that contract interpretation start with plain meaning, and only then go on to consider textual context, […]

Alex Silk, ‘Theories of Vagueness and Theories of Law’

ABSTRACT It is common to think that what theory of linguistic vagueness is correct has implications for debates in philosophy of law. I disagree. I argue that the implications of particular theories of vagueness on substantive issues of legal theory and practice are less far-reaching than often thought. I focus on four putative implications discussed […]

Frederick Schauer, ‘A Critical Examination of the Distinction between Interpretation and Construction’

ABSTRACT The distinction between interpretation and construction, with its roots in the law and theory of contracts, has become a central theme in contemporary debates about constitutional theory. According to the distinction, advanced and elaborated by Lawrence Solum, Keith Whittington and many others, interpretation is the process of locating the linguistic meaning of an authoritative […]