Courts and scholars disagree about the quantum of evidence that is necessary to determine the meaning of contractual provisions. Formalists favor excluding extrinsic evidence unless the contractual text is found to be ambiguous. Contextualists, by contrast, look to extrinsic evidence to support claims about contractual meaning even absent a finding of ambiguity. The formalist approach is faulted for failing to provide a meaningful account of the parties’ intentions and for placing heavy reliance upon the judge’s own linguistic intuitions and general-use English dictionaries—both problematic guides to plain meaning. At the same time, the contextualist approach may impose significant costs on the contracting parties and invite strategic behavior. Corpus linguistics offers a middle way. Corpus linguistics draws on evidence of language use from large, coded, electronic collections of natural language—language used in natural settings, rather than language elicited through interviews or surveys. These may include collections of texts from newspapers, magazines, academic articles, or transcribed conversations. These collections of texts are referred to as corpora (the plural of corpus). Linguistic corpora can be designed to model the linguistic conventions of a wide variety of speech communities, industries, or linguistic registers. Because large, sophisticated linguistic corpora are freely available, language evidence from linguistic corpora offers a comparatively low-cost alternative to the vast quantity of extrinsic evidence permitted by contextualist interpretive approaches. Moreover, by evaluating corpus evidence, judges and lawyers can create a more accurate, evidence-based picture of contractual meaning than can be found in the formalist judge’s linguistic intuition or in a general-use dictionary. Moreover, corpora can provide objective evidence of the linguistic conventions of the communities that draft and are governed by the agreements judges and lawyers are called upon to interpret. Corpus evidence can give content to otherwise vague legal concepts and provide linguistic evidence to aid in the evaluation of claims about the meaning (or ambiguity) of a contractual text. Below I outline how corpus linguistic methods may be applied to the interpretation of contracts.
Stephen C. Mouritsen,
Contract Interpretation with Corpus Linguistics,
94 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol94/iss3/9