Category Archives: Interpretation

‘Book review: Drafting Copyright Exceptions

“Continuing the theme of balancing copyright and other fundamental rights, from this Kat’s previous book review, she now turns to Emily Hudson’s Drafting Copyright Exceptions: From the Law in Books to the Law in Action, which was also nominated in the IPKat book of year awards for best copyright book. Hudson, Reader at King’s College […]

‘More Boilerplate Redundancy: Expressing Both the “Entire Agreement” Concept and the “Merger” (or “Integration”) Concept’

“Let’s look at ‘entire agreement’ provisions. Or maybe you call them ‘merger’ provisions. Or ‘integration’ provisions. Whatever. Consider this boilerplate provision offered in Commercial Contracts: Strategies for Drafting and Negotiating (Vladimir R Rossman and Morton Moskin eds, 2d ed 2021) § 26.04[C] …” (more) [Adams on Contract Drafting, 22 January]

McGinni and Rappaport, ‘The Power of Interpretation: Minimizing the Construction Zone’

ABSTRACT One of the most important conceptual innovations within modern originalism is the distinction between a zone of interpretation and a zone of construction. When constitutional provisions have a determinate meaning, decisions finding that meaning occur within the interpretation zone. But when the original meaning of a constitutional provision is indeterminate, decisions are based on […]

Zoe Gounari, ‘Developing a relational law of contracts: striking a balance between abstraction and contextualism’

ABSTRACT Relational contract theory holds that the interpretation of a contract must take full account of the context and surrounding circumstances of the parties’ bargain so as to give effect to their respective intentions. This paper argues that if a relational treatment of contracts is to be institutionalised, in the sense of being utilised in […]

Anita Krishnakumar, ‘MetaRules for Ordinary Meaning’

‘Ordinary meaning’ is a notoriously undefined concept in statutory interpretation theory. Courts and scholars sometimes describe ordinary meaning as the meaning that a ‘reasonable reader’ would ascribe to the statutory language at issue, but it remains unclear how judges and lawyers should go about identifying such meaning. Over the past few decades, as textualism has […]

‘New Judgment: Financial Conduct Authority v Arch Insurance (UK) Ltd and Others [2021] UKSC 1′

“In March 2020, the UK Government began to take a series of measures to combat the transmission of COVID-19. The present appeals considered the impact of these actions and measures on 28 clauses in the 21 lead policies written by the Appellant Insurers. The proceedings have been brought by the Financial Conduct Authority (the ‘FCA’) […]

‘The Multiple Faces of Textualism’

Tara Leigh Grove, Which Textualism?, 134 Harvard Law Review 265 (2020). In her wonderfully-titled article, ‘Which Textualism?’, Tara Leigh Grove uses the recently decided Bostock v Clayton County case to highlight a truth about statutory interpretation theory that scholars have largely ignored: Textualism is not a monolithic interpretive approach, but one that contains multiple competing […]

Jery Payne, ‘Lord Tenterden’s Rule: Why a List Might Backfire’

ABSTRACT The article reviews five cases in which the court was interpreting a list with a catchall entry. The outcome of the cases is surprising. The article argues that these outcomes and legal treatises show that a list and a catchall is unpredictable. When drafting legal language, predictability is highly desirable and is of primary […]

Daniele Bertolini, ‘Unpacking Entire Agreement Clauses: On the (Elusive) Search for Contractually Induced Formalism in Contractual Adjudication’

ABSTRACT This article examines the extent to which entire agreement clauses (EACs) are enforceable under the Canadian common law of contracts and the extent to which these contractual provisions are effective in promoting contractual certainty. EACs are generally found in commercial agreements between legally sophisticated parties and in contracts of adhesion with inequality of bargaining […]

Abhinav Palsikar, ‘Critical Analysis of Literal Rule of Interpretation’

ABSTRACT The Literal Rule of Interpretation is the oldest rule and is followed to date by the Judges across the globe. The rationale behind the Literal Rule is that it prevents courts from making biased decisions when the issue is relating to political matters. This rule also restricts the Courts from creating new laws through […]