David A Hoffman and Yonathan A Arbel, ‘Generative Interpretation’, 99 New York University Law Review (forthcoming, 2024); University of Pennsylvania Law School, Public Law Research Paper, available at SSRN (1 August 2023). The plain meaning rule is out of favor with contracts academia. There is so little to say about it, nothing to theorize, and even less to test students about. Plain meaning? It’s such an unintelligent concept. Scriptures, poems, literature, love letters – they all have subtle meanings that can be imagined and read between the lines. Why not contracts? Luckily, California rescued the contract world from that slight. Its courts rejected the plain meaning rule! We too now have a job to do: speculate about the meaning of contracts. California and Foucault told us that there is no such thing as plain meaning of words, and so the meaning of the contract must be teased out not merely from the text but also from the context of the agreement … (more)
[Omri Ben-Shahar, JOTWELL, 2 November 2023]
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