Category Archives: Interpretation
Scott, Choi and Gulati, ‘Contractual Landmines’
ABSTRACT The conventional view is that standardized boilerplate terms represent an optimal contractual solution to the contracting problems facing parties in large markets. As Smith and Warner explained, ‘harmful heuristics, like harmful mutations, will die out’. But an examination of a sample of current sovereign bond contracts reveals numerous instances of harmful landmines – vague […]
Gvozdenovic, ‘Statute, Common Law, and Analogical Reasoning: Pouring Oil on Troubled Waters’
INTRODUCTION The relationship between statute and unwritten law is remarkably abstruse. It is also of considerable importance to the functioning of the common law. Judges and scholars have made some attempts to address the questions raised by this legal juncture; only a very partial set of answers, however, has been produced. A proper understanding of […]
Gray, ‘Relational contract theory, the relevance of actual performance in contractual interpretation and its application to employment contracts in the United Kingdom and Australia’
ABSTRACT This article articulates a theory of relational contract, as an alternative to traditional freedom of contract philosophy. The law has moved away from freedom of contract to some extent, and it can be criticised on the basis of its unrealistic assumptions and detachment from the typical reality of parties’ contracting. Relational contract theory is […]
Wilmot-Smith, ‘Express and Implied Terms’
ABSTRACT Contract terms can be express or implied. But what does that mean? I argue that the distinction can be illuminated by reference to the philosophy of language. Express terms are best understood by reference to the truth-conditional content of the parties’ agreement; implied terms are derived from express terms by a process of reasoning, […]
Pilkington, ‘R Catterwell, A Unified Approach to Contract Interpretation’
R Catterwell, A Unified Approach to Contract Interpretation, Oxford: Hart Publishing, 2020, 320 pp, hb £72.00. It is well established that the common law adopts an objective approach to the interpretation of contracts. But what does this approach entail? Further, what are courts ultimately trying to determine when they interpret a contract? In his carefully […]
Jonathan Choi, ‘Computational Corpus Linguistics’
ABSTRACT Scholars and judges increasingly interpret legal text by studying word use in real-world documents, a method known as ‘corpus linguistics’. But the traditional approach to corpus linguistics encounters several problems. It focuses on word frequencies at the expense of subtler linguistic cues and presents no clear dividing line between correct and incorrect textual meanings. […]
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 […]
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 […]
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 […]
‘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 […]