Category Archives: Interpretation

Kevin Tobia, ‘Dueling Dictionaries and Clashing Corpora’

“… This essay explores textualism’s newest tool: corpus linguistics. Over the past five years, the tool has been increasingly employed by US courts. Legal corpus linguistics has also caught the attention of the US Supreme Court. Justice Thomas mentioned corpus linguistics in his 2018 Carpenter dissent, and Justice Alito noted it again in his 2021 […]

Miller, Lewis and Kozak, ‘COVID-19 and Business Income Insurance: The History of “Physical Loss” and what Insurers Intended it to Mean’

ABSTRACT In thousands of cases filed throughout the United States, policyholders are seeking Business Income coverage for losses arising from the presence of SARS-CoV-2, the COVID-19 pandemic, or consequent orders of civil authority. Typically, the Business Income clause is triggered by some variation of ‘direct physical loss of or damage to’ the policyholder’s property. Policyholders […]

Caroline Laske, ‘Corpus linguistics: the digital tool kit for analysing language and the law’

ABSTRACT Corpus linguistics methodologies offer innovative ways of reading legal historical sources. Studying the language of source texts using computational techniques that retrieve linguistic data makes detailed searches of words, phrases, and lexical/grammatical patterns and structures possible and provides multiple contextual data that is both quantitative and qualitative, empirical rather than intuitive. It helps us […]

Aditi Bagchi, ‘Retrospective Risk Allocation’

ABSTRACT This article asks two questions that the recent pandemic makes especially salient. First, should courts consider some facts unavailable to parties at the time of contract but which plausibly would have altered their contract design? I argue that they should take new information into account when doing so would realize a principle of risk-sharing […]

Alex Stein, ‘Probabilism in Legal Interpretation’

“… This Article offers an alternative theory of interpretation identified as probabilism. At its core, probabilism maintains that judges should view legal rules as a communication between individuals. The parties to that communication are the lawmakers, who give their commands in the form of rules, and the individuals who receive those commands. What these commands […]

Susan Chesler, ‘Using Private Law as a Vehicle for Social Change: A Feminist Approach’

ABSTRACT Even though contracts are so embedded in individuals’ personal and professional lives, rarely (if ever) do we think of contracts as being a vehicle for social change. To effect legal change that addresses societal injustices, we generally rely on our legislative bodies and common law system. In this essay, I argue that private law […]

Karen Chen, ‘Catching Up to a New Normal: The Effects of Shifting Industry Standards on Contract Interpretation’

ABSTRACT During the COVID-19 pandemic, industries around the world were forced to adapt to a new way of life dictated by rising public health concerns. The pandemic’s rapid spread left parties struggling to determine whether contractual performance would be excused or reinterpreted. Issues of prevailing industry standards arose and brought into question the point at […]

‘Box, box, box: implied term causes Force India to pit’

“In Force India Formula One Team, the High Court held that a term which required Force India to own the Formula One team throughout a merchandising licence’s five year term should be implied since it was both obvious from the licence’s other terms and necessary to give business efficacy to them …” (more) [Bruno Rucinski, […]

‘A promise is a promise – or is it? Ask the average consumer! CJEU in C‑249/21, Fuhrmann

“We’ve all been there – trying to decide whether to go for the hotel which promises nicer breakfast or the one with free cancellation until 24 hours before arrival. We don’t know what happened to Mr B, who booked an expensive hotel in a German village and didn’t show up to take possession of his […]

‘Legal Theory Lexicon: Interpretation and Construction’

“Every law student learns that the relationship of a legal text to the resolution of a particular case can be complex. What does the text mean? How does that meaning translate into legal doctrine? And how does the doctrine apply in the context of the facts of the case? One way to think more clearly […]