Category Archives: Interpretation

Kevin Toh, ‘Authenticity, Ontology, and Natural History: Some Reflections on Musical and Legal Interpretation’

Abstract This paper is an attempt to exploit a set of analogies between music and law. Both the originalist movement in law and the so-called period instrument movement in classical music gathered momentum in earnest in the late 1970s and the early 1980s. And both were reactions to earlier traditions of interpretation, in law and […]

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 article considers three central issues in the purposive construction of contracts: first, the reasons contractual purposes are relevant to the interpretation […]

‘Data Driven Contract Interpretation: Discovering “Plain Meaning” Through Quantitative Methods’

Stephen C Mouritsen, Contract Interpretation with Corpus Linguistics (November 4, 2017), available at SSRN. Interpretation of contractual text may be the most important task courts perform in contract disputes. It is also the least predictable. Courts fall back on archaic canons of interpretation and employ poorly defined and spongy concepts for eliciting the meaning of […]

Coyle and Weidemaier, ‘Interpreting Contracts Without Context’

Abstract Contracts always present questions of interpretation. This is nothing new. What is new is the concern that courts lack the tools to resolve many of these questions. When text is unclear, courts look to context, examining extrinsic evidence for clues as to what the parties intended. But what if there is no evidence of […]

Victoria Nourse, ‘Picking and Choosing Text: Lessons for Statutory Interpretation from the Philosophy of Language’

Abstract Textualists claim that they follow statutory text. This Article argues that, in practice, textualists often create meaning rather than find it. Deploying the analytics of linguistic philosophy, this Article takes a deep dive into textualist methodology. The philosophy of language reveals what legal scholarship has left submerged: The very choice of text can put […]

Gregory Klass, ‘Parol Evidence Rules and the Mechanics of Choice’

Abstract Although parol evidence rules have received their share of scholarly attention, relatively little has been paid to the rules for deciding when parties have agreed to integrate a writing. These integration rules, however, are as dark and full of subtle difficulties as are other parts of the rule. Starting from Hanoch Dagan and Michael […]

‘Divergence and Reform in the Common Law of Contracts’ – (2018) 85 George Washington Law Review (special number)

Blake D Morant, Fall 2016 Symposium: Divergence and Reform in the Common Law of Contracts 85 George Washington Law Review 1581 Lord Patrick Stewart Hodge, Judicial Development of the Law of Contract in the United Kingdom 85 George Washington Law Review 1587 Mindy Chen-Wishart, Contractual Remedies: Beyond Enforcing Contractual Duties 85 George Washington Law Review […]

Gluck and Posner, ‘Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals’

Abstract This Article reports the results of a survey of a diverse group of forty-two federal appellate judges concerning their approaches to statutory interpretation. The study reveals important differences between their approaches and the approach that the Supreme Court purports to take. It also helps to substantiate the irrelevance of the enduring, but now boring, […]

Kar and Radin, ‘Pseudo-Contract and Shared Meaning Analysis’

Abstract Over the last several decades, courts and legal scholars have struggled with whether or when to consider boilerplate text as contract. In a series of ad hoc fixes reminiscent of the ‘epicycles’ that tried to square Ptolemaic geocentric theories of planetary motion with recalcitrant observations, contract law has been shifting away from its traditional […]

David McLauchlan, ‘Some Fallacies Concerning the Law of Contract Interpretation’

Abstract This article seeks to refute several basic propositions concerning the law of contract interpretation that have recently been put forward by academic commentators, some of which gain implicit support from an extra-judicial speech by Lord Sumption earlier this year. These propositions are: the very purpose of a written contract dictates the existence of a […]