Category Archives: Interpretation

Raef Zreik, ‘Ronald Dworkin and Duncan Kennedy: Two Views of Interpretation’

ABSTRACT Ronald Dworkin and Duncan Kennedy represent arguably two opposing poles in legal theory. This paper offers a novel frame for reading their respective legal theories which reconceptualizes the traditional way in which they were opposed, and new ways to compare them, to understand their commonalities and their differences. While Dworkin is taken to be […]

Badawi and de Fontenay, ‘Is There a First-Drafter Advantage in M&A?’

ABSTRACT Does the party that provides the first draft of a merger agreement get better terms as a result? There is considerable lore among transactional lawyers on this question, yet it has never been examined empirically. In this Article, we develop a novel dataset of drafting practices in large M&A transactions involving US public-company targets. […]

Andrew Robertson, ‘Purposive contractual interpretation’

ABSTRACT It is now well recognised that contractual purposes play an important role in the construction of contracts. The methods by which purposes are taken into account have not, however, been systematically explored. This paper considers three central issues in the purposive construction of contracts: first, the reasons contractual purposes are relevant to the interpretation […]

‘Do Contract Usages Mean Whatever People Think They Mean?’

“A few months ago I encountered what was, at least for me, a new defense of dysfunctional contract language. When I pressed a few people to justify their support for a traditional usage, they responded that because plenty of people share their view, it must be correct. That relies on the logical fallacy argumentum ad […]

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 […]

David McLauchlan, ‘Contract Interpretation and Deleted Words: A Not So Pleasant Diversity of Authority’

ABSTRACT This article discusses the vexed question whether words that have been deleted from a written contract prior to its execution are a permissible aid to the interpretation of the contract. After outlining the development of the unsatisfactory and conflicting case law in England and Australia, the article discusses the recent decision of the High […]

‘Layers of Intentions’

Martin Matczak, Three Kinds of Intention in Lawmaking, 36 Law and Philosophy 651 (2017). ‘Legislative intention’ is one of those concepts that many people use without recognizing the complexity of the underlying idea. The issue of statutory interpretation is frequently characterized as being a disagreement between ‘intentionalists’ and ‘textualists’, an argument regarding what role, if […]

‘Legal Theory Lexicon: Corpus Linguistics’

“Law students quickly learn that the interpretation of legal texts is an important component of legal practice. Legal disputes frequently turn on the meaning of a contract, will, rule, regulation, statute, or constitutional provision. How do we determine the meaning of legal texts? One possibility is that judges could consult their linguistic intuitions. Another possibility […]

Ryan Catterwell, ‘Striking a Balance in Contract Interpretation: The Primacy of the Text’

ABSTRACT In Wood v Capita Insurance Services Ltd [2017] AC 1173, the UK Supreme Court emphasised that contract interpretation involves ‘striking a balance between the indications given by the language and the implications of the competing constructions’. This paper investigates the nature of the balancing act at the heart of construction. It argues that the […]

Chris Himsworth, ‘Transplanting Irrationality from Public to Private Law: Braganza v BP Shipping Ltd

ABSTRACT For many years, similarities have been noticed between the motivations for, and the methods of, controlling the exercise of discretionary powers on the one hand, in public law and, on the other hand, in contract law. There has, however, been much disagreement about how far the two processes should aligned, and whether the grounds […]