Category Archives: Interpretation
‘Clarity is king when waiving your rights’
The Court of Appeal has provided helpful guidance on the circumstances in which the English courts will uphold waivers of valuable legal rights. The key is to ensure the contractual wording is sufficiently clear – and the more valuable the right, the clearer the wording must be … (more) [A&O Shearman, 12 January 2026]
Giuseppe Bellantuono, ‘The Empirical Turn in Legal Interpretation’
ABSTRACT Are empirical methods going to affect interpretative outcomes? Or are they going to change the very meaning of legal interpretation? In this essay, I explore these two questions with regard to both the role of the interpreter and the choice of interpretative strategies. The role of the interpreter is discussed by the empirical literature […]
Charles Capps, ‘What Interpretation Just Is and Why It Matters’
ABSTRACT Scholars often claim that judges must defend their interpretive method based on its consequences. But an analysis of interpretation reveals that to interpret something is just to form a judgment about its intended meaning. And judgment is essentially aimed at truth, not consequences. A person who adopts a method of forming a ‘judgment’ on […]
Kwan Ho Lau, ‘Terms implied by law: to exclude or not to exclude?’
ABSTRACT In 2001, Elisabeth Peden concluded after some study that the process of implication of terms in law was ‘correspondingly vague and lacking in definite principles’. Over two decades later, that characterisation remains accurate. The varied terminology in judicial use reflects an ambiguity over the normative position occupied by terms implied by law. That, in […]
Erik Knutsen, ‘The Insurance Policy: Contract or Not? (And Why That Matters for Insurance Coverage Cases)’
ABSTRACT Common law courts in Canada should make up their mind: are insurance policies to be treated as contracts or as something else? Litigants in many insurance coverage disputes may actually be better off if the special insurance policy interpretation framework as currently employed by Canadian courts were jettisoned, and courts instead interpreted insurance policies […]
Anuj Desai, ‘Textualism Step Zero: Who is the Reader of Statutory Text?’
ABSTRACT Textualists argue that judges should interpret statutes based on how a reasonable reader would understand the statutory text, not on the legislature’s subjective intent. But who is that reasonable reader? The answer matters: the reader’s identity should properly determine the available interpretive tools an interpreter may use. This Article introduces the concept of Textualism […]
Ryan Catterwell, ‘The Application of Contracts’
ABSTRACT The application of a contract involves ascertaining whether the components of a contract term are met on the facts. It is a matter of categorisation or classification. There are at least three methods of categorisation: by criteria; by factor-balancing; and by analogy. The process of application is distinct from the processes that are engaged […]
Knutsen and Stempel, ‘Textual Literalism, Formalism, and Canon-Centric Construction as De Facto – and Defective – Artificial Intelligence’
ABSTRACT Human use of machine-driven artificial intelligence (AI) has attracted deserved attention. But at the same time, scholars studying the impact of AI have largely overlooked the degree to which humans themselves frequently engage in robotic analysis of legal disputes that can operate in the nature of a failed algorithm. The heavy, sometimes determinative, use […]
Seth, Hasit, ‘Interpreting Exclusion Clauses for Loss of Profits in Contracts’
ABSTRACT In February 2025, the English Court of Appeals handed down the judgment in the case EE Limited v Virgin Mobile Telecoms Limited [2025] EWCA Civ 70. The judgment illustrates the challenges of interpreting exclusion clauses in contracts, particularly the exclusion clauses for loss of profit claims when they are termed as ‘anticipated profits’. The […]
Dylan Clarke, ‘An Economic Approach to Interpretation’
ABSTRACT This Essay develops an economic approach to statutory and contractual interpretation. The economic approach to interpretation understands ‘things’ as inherently economic objects that drafters intend to specify to include close-to-perfect substitutes or similar fairly priced items by the market. Several difficult cases involving exclusivity clauses, the exchange of land, and options contracts are resolved […]