Law, language & meaning
Textual
Interpretation
in the Law.
What Words Say,
and How Judges Read Them
Developed by brilliant minds over decades, powerful insights from the philosophy of language stand ready and able to lend new clarity to hard legal cases.
Why read
Textual Interpretation
in the Law?
Why do we need this book?
This book closes many of the gaps in the current literature.
The gaps
A number of books and scholarly articles deal with statutory interpretation. But contractual interpretation is under-explored. This book argues that many legal disputes involve ordinary linguistic indeterminacy, and that interpretive principles extend to texts generally—whether they are statutes or private instruments.
Textualism—ascending to prominence in the 1980s and now deeply rooted in jurisprudence—put a spotlight on the concept of ordinary meaning in legal interpretation. The concept of ordinary meaning is necessarily derivative of linguistic inquiry; judges’ untutored intuitions may not always be dispositive. But courts have no tools for adjudging one reading more “ordinary” than another. Indeed, this book argues that courts often reach conclusions that do not align with current linguistic theory.
Discussions of lexical (word-sense) and syntactic (structural) ambiguity abound in law review articles, and judges are conversant in both. But what about scope ambiguity? What about anaphoric underdetermination? What about indeterminacy of reference? All of these phenomena are common in legal texts. But they are not acknowledged, and lawyers have little guidance.
A preview of the book’s cases
Linguistic subtleties.
Far-reaching
consequences.
Courts often claim to be making their decisions based on the plain meaning of the text. But a survey of cases suggests that the legal notion of clarity is almost entirely improvised. This book examines a series of reported court decisions that purport to be text-based, but that do not align with current thinking in linguistics or philosophy.
Real cases.
A closer look at what the words do.
01PresuppositionObduskey v.
McCarthy & Holthus (2019)
What effect does the word “also” have?
The Supreme Court’s paradoxical assertion that certain attorneys carrying out non-judicial foreclosures weren’t “debt collectors” within the meaning of the FDCPA hinged upon a single word. The act’s “secondary” definition of “debt collector” “also” includes those enforcing security interests. The court argued that “also” suggested the exclusion of those interests from the act’s “primary” definition. Lawyers have failed to recognize this “suggestion” as a linguistic presupposition.
In this case, a key sentence’s presupposition took precedence over the statute’s explicit language.
02ReferenceMilne v.
Milne Construction (2006)
Which office is “the company office”?
Did an agreement that stipulated that the seller of a building could continue to use “the company office” refer to the particular office he had been occupying at the time of the building’s sale, or to the hypothetical future office occupied by the buyer, wherever it might be? The issue at stake, in this dispute, was an instance of a distinction well understood in philosophy of language, between “attributive” and “referential” uses of a “definite description”. The court instead attempted to gloss the words “the” and “office”.
How do we figure out which objects definite descriptions refer to?
03Scope ambiguityWalmart v.
Capital One (2024)
Clear words. More than one reading.
Did a provision granting Walmart the right to terminate an agreement in case Capital One missed “a Critical SLA, five or more times” demand that the same SLA be missed all five times, or did it allow the SLA to depend on the miss? This dispute, remarkably, hinged on a so-called quantifier scope ambiguity, a phenomenon well canvassed in the linguistics literature, but unknown to lawyers. The court, eyebrow-raisingly, deemed the contract “unambiguous”, after studying the “meaning” of the word “a”.
Sentence-level semantic ambiguities transcend the respective meanings of individual words.
Examples adapted from the book’s introduction, pp. 7–8.
