Category Archives: Interpretation

Frederick Schauer, ‘Constructing Interpretation’

ABSTRACT This paper, a substantially revised version of a paper previously entitled (and posted as) ‘A Critical Examination of the Distinction between Interpretation and Construction’, argues not only that the justifiably prominent and valuable distinction between interpretation and construction loses much of its value when applied to technical language, but also that the point of […]

‘Legal Theory Lexicon: Speaker’s Meaning and Sentence Meaning’

“Law students soon learn that the interpretation of legal texts is one of the most important things that lawyers and judges do. In a previous Legal Theory Lexicon entry, a distinction was made between ‘interpretation’ and ‘construction’. Although we could use other words to express the distinction, it expresses an important conceptual difference between two […]

Bental, Deffains and Demougin, ‘Interpreting contracts: the purposive approach and non-comprehensive incentive contracts’

ABSTRACT Real world contracts often contain incentive clauses that fail to fully specify conditions triggering payments, giving rise to legal disputes. When complete contract generate Pareto efficient allocations the L&E literature advocates that courts should fill in the missing clauses. This logic does not directly extend to environments with moral hazard, where complete contracts result […]

Jeffrey Goldsworthy, ‘Lord Burrows on Legislative Intention, Statutory Purpose, and the “Always Speaking” Principle’

ABSTRACT In his 2017 Hamlyn Lectures, Professor (now Lord) Burrows set out his opinions about statutory interpretation. Given his recent appointment to the UK Supreme Court, these opinions now have more practical importance than those of most academic theorists. One of his main theses is that the modern approach to statutory interpretation, which focuses on […]

Cass Sunstein, ‘Textualism and the Duck-Rabbit Illusion’

ABSTRACT Textualists insist that judges should follow the ordinary meaning of a legal text, and sometimes texts have an ordinary meaning that judges can follow. But sometimes texts have no such thing, in the sense that they are reasonably susceptible to two or more interpretations. Some textualists fall victim to something like the duck-rabbit illusion. […]

‘In Which I Play a Contracts Professor Again’

“I usually leave the arcana of contract interpretation principles to the specialists, but every now and then I apparently dip my toe in, and this is another of those weeks. VC Laster’s opinion in In re Anthem-Cigna Merger Litigation tells a truly wild tale. In brief, Anthem and Cigna agreed to merge, but Cigna’s CEO, […]

Just published: Baaij, Cabrelli and Macgregor (eds), Interpretation of Commercial Contracts in European Private Law

This book is a unique and extensive comparative study of commercial contract interpretation across 14 selected jurisdictions, namely Croatia, England and Wales, Finland, France, Germany, Greece, Italy, The Netherlands, Poland, Portugal, Scotland, South Africa, Spain and Sweden. Using a dynamic comparative case method, the focus is centered on the discussion of key legal problems, further […]

Thomas Merrill, ‘Legitimate Interpretation – Or Legitimate Adjudication?’

ABSTRACT Current debate about the legitimacy of lawmaking by courts focuses on what constitutes legitimate interpretation. The debate has reached an impasse in that originalism and textualism appear to have the stronger case as a matter of theory while living constitutionalism and dynamic interpretation provide much account of actual practice. This Article argues that if […]

‘Okay, So They’re Not Quite Raffles v Wichelhaus

“This week, I want to call attention to two recent Delaware decisions involving disputes over the meaning of contractual language in merger agreements, because I find the purity of the interpretive questions posed to be aesthetically pleasing. First up, we have Schneider National Carriers v Kuntz, where the court denied cross motions for summary judgment […]

‘Legal Theory Lexicon: Metalinguistic Negotiation’

“At some point, law students are likely to encounter a topic where the debate moves away from substantive disagreement and towards what might seem like matters of definition. For example, in debates about constitutional interpretation, some protagonists argue that the word ‘interpretation’ refer to the activity of discovering the linguistic meaning of the text, but […]