Document Type

Article

Publication Date

2-2016

Publication Title

University of California Davis Law Review

Volume

49

First Page

1097

Last Page

1147

Abstract

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 twostep 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.

Rights

© 2016 Shawn Bayern

Comments

First published in the University of California Davis Law Review.

Faculty Biography

http://www.law.fsu.edu/our-faculty/profiles/bayern

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