Category Archives: Interpretation

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 […]

‘Interpreting Forum Selection Clauses’

“Last week, I wrote about the interpretive rules that US courts use to construe ambiguous choice-of-law clauses. Choice-of-law clauses are not, however, the only means by which contracting parties may exercise their autonomy under the rules of private international law. Parties may also select via contract the forum in which their disputes will be resolved […]

Lawrence Solum, ‘Contractual Communication’

ABSTRACT In ‘Pseudo-Contract and Shared Meaning Analysis’, Professors Robin Bradley Kar and Margaret Jane Radin develop an important theory of the nature of contract that draws on Paul Grice’s influential theory of meaning. That theory has significant implications for contract doctrine, in particular for questions about the enforceability of so-called ‘contracts of adhesion’ in particular […]

Gregory Klass, ‘Contracts, Constitutions, and Getting the Interpretation-Construction Distinction Right’

ABSTRACT Interpretation determines the meaning of a legal actor’s words or other significant acts, construction their legal effect. Using contract law and then two nineteenth century theories of constitutional interpretation as examples, this Article advances four claims about interpretation, construction, and the relationship between the two. First, many theorists, following Francis Lieber, assume that rules […]

‘Interpreting Choice-of-Law Clauses’

“Over the past few decades, the concept of party autonomy has moved to the forefront of private international law scholarship. The question of whether (and to what extent) private actors may choose the law that will govern their relationship has generated extensive commentary and discussion. The result? An ever-expanding literature on the role of party […]

Daniele Bertolini, ‘Unmixing the Mixed Questions: A Framework for Distinguishing Between Questions of Fact and Questions of Law in Contractual Interpretation’

ABSTRACT In Sattva Capital Corp v Creston Moly Corp, the Supreme Court of Canada established that contractual interpretation generally involves questions of mixed fact and law subject to a standard of palpable and overriding error, unless an extricable error of law is identified. The Court confirmed and specified this holding in a number of subsequent […]

Steven Feldman, ‘Actual Agreement, Shared Meaning Analysis, and the Invalidation of Boilerplate: A Response to Professors Kar and Radin’

ABSTRACT Analyzing a difficult subject that ‘pervades’ contract law and which is ‘vital’ to the national economy, scholars have produced scores of articles about the legal and societal aspects of boilerplate contract terms With their February 2019 article in the Harvard Law Review, Pseudo-Contract And Shared Meaning Analysis, Professors Robin Bradley Kar and Margaret Jane […]

Joanna McCunn, ‘The Contra Proferentem Rule: Contract Law’s Great Survivor’

ABSTRACT The contra proferentem rule has been under sustained attack in recent years, as judges doubt whether it has any role to play in modern commercial contract law. This article sheds light on the function of the rule by examining its historical development. The rule has been part of English contract law for over 600 […]

Amalia Amaya, ‘Virtuous Adjudication; or the Relevance of Judicial Character to Legal Interpretation’

ABSTRACT The main tenet that this article aims to establish is that judicial virtue is necessary for successful legal interpretation. Theories of interpretation are exceedingly useful devices to guide and assess judicial reasoning, but they are limited in that the soundness of their outcomes is dependent upon the possession and exercise of judicial virtue. Thus, […]