Category Archives: Interpretation

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 […]

Ryan Doerfler, ‘High-Stakes Interpretation’

Abstract Courts look at text differently in high-stakes cases. Statutory language that would otherwise be ‘unambiguous’ suddenly becomes ‘less than clear’. This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize ‘clear’ […]

Marcin Matczak, ‘Why Judicial Formalism is Incompatible with the Rule of Law’

Abstract Judicial formalism is perceived as fully compliant with the requirements of the rule of law. With its reliance on plain meaning and its reluctance to apply historical, purposive and functional interpretative premises, it seems an ideal tool for constraining discretionary judicial powers and securing the predictability of law’s application, which latter is one of […]

Miloš Vukotić, ‘Influence of Objective Elements on the Interpretation of Wills’

Abstract The author of the paper discusses rules relating to will execution formalities, and rules relating to interpretation of wills in order to show the importance of legal policy and general legal values for interpretation of wills. Aharon Barak’s theory of purposive interpretation is a starting point for the discussion because this theory emphasizes the […]

Macagno, Walton and Sartor, ‘Pragmatic Maxims and Presumptions in Legal Interpretation’

Abstract The fields of linguistic pragmatics and legal interpretation are deeply interrelated. The purpose of this paper is to show how pragmatics and the developments in argumentation theory can contribute to the debate on legal interpretation. The relation between the pragmatic maxims and the presumptions underlying the legal canons are brought to light, unveiling the […]

Anya Bernstein, ‘Before Interpretation’

Abstract What is it that a judge interprets in a statutory interpretation case? This Article shows that the answer to this question is surprisingly complex. First, the text that a judge interprets is not simply given. Rather, judges must select texts to interpret. Second, the background against which a judge views that text is also […]

Ben-Shahar and Strahilevitz, ‘Interpreting Contracts via Surveys and Experiments’

Abstract Interpreting the language of contracts may be the most common and least satisfactory task courts perform in contract disputes. This Article proposes to take much of this task out of the hands of lawyers and judges, entrusting it instead to the public. The Article develops and tests a novel regime – the ‘survey interpretation […]

AB Menezes Cordeiro, ‘Brexit as an Exceptional Change of Circumstance?’

Abstract Few issues in the law of obligations have yielded solutions so disparate as those offered for exceptional changes of circumstances after the formation of contracts. These differences are especially noticeable between civil law systems, despite their common origins and the mutual influences. Although the solutions differ, the doctrine of change of circumstances is recognised […]

Ethan Herenstein, ‘The Faulty Frequency Hypothesis’

Introduction: … In other words, Justice Lee and Mouritsen’s application of corpus linguistics depends on the premise that, where an ambiguous term retains two plausible meanings, the ordinary meaning of the term (and the one that ought to control) is the more frequently used meaning of the term. Call this the Frequency Hypothesis … This […]