‘“A Major New Move” in Contract Interpretation’

Omri Ben-Shahar and Lior Strahilevitz, Interpreting Contracts via Surveys and Experiments, University of Chicago Coase-Sandor Institute for Law and Economics Research Paper No 791 (2017), available at SSRN. Despite its practical importance, contract interpretation is the red-haired stepchild of the 1L classroom – the doctrine is infamously incoherent, rests on law/fact distinctions which even the Restatement elides, and testing meaning on a final exam can only succeed using artificially simple narratives. Many of us bring a rubber chicken to class at least once a semester because that fowl case is (at least) written-well and marches through alternative meanings, though the holding rests on a deus ex machina of burden shifting. It’s a stewing mess. Chicago’s Omri Ben-Shahar and Lior Jacob Strahilevitz aim to free us of the burden of teaching both parole evidence and interpretation, and, along the way, reduce aggregate contract litigation costs and contract length, while improving readability and denying firms the ability to bully their opponents in court with expensive lawyers … (more)

[David Hoffman, JOTWELL, 17 November]

First posted 2017-11-17 14:11:26

Leave a Reply