Shawn Bayern, ‘Contract Meta-Interpretation’

This Article provides a general framework for resolving the contract law’s ambivalence between textualism and contextualism, one of the most difficult questions in modern contract interpretation. Simply put, the Article’s argument is that courts need to determine the parties’ preferences as to how their contracts should be interpreted; this ‘meta-interpretive’ inquiry can then direct the court’s interpretation or construction of the parties’ substantive rights and duties. Moreover, the Article argues that while contextualist interpretation is not, and should not be, mandatory for all interpretive questions under contract law, contextualism is necessary to resolve the initial ‘meta-interpretive’ question: What interpretive regime do the parties prefer? Recognizing this distinction, and applying this two-step inquiry, can resolve some of the academic and practical debates between textualists and contextualists, and it can also explain some features of modern contract law.

Bayern, Shawn J, Contract Meta-Interpretation (January 13, 2016). UC Davis Law Review, Vol 49, 2016.

First posted 2016-01-16 07:49:13

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