Document Type

Article

Publication Date

2021

Abstract

The American approach to construing texts (statutes, regulations, contracts and documents generally) stresses decision through determining the “plain meaning” of the document based on the court’s reading of the text. Where the court finds plain meaning on the face of text, it generally refuses to consider additional contextual information or extrinsic evidence of meaning.

Notwithstanding its status as the dominant approach to interpretation, the plain meaning concept has not been well defined or operationalized. Despite judicial confidence in the plain meaning approach, courts have wisely been willing to sidestep it and eschew the rather clear facial meaning of text when doing so would produce bad decisions that undermine the purpose underlying the written instrument or result in disproportionate forfeiture of rights.

Unfortunately, these instances tend to be regarded as mere exceptions to an otherwise unquestionable rule rather than a serious indictment of the approach and a brief for reducing undue deference to text, excessive confidence in human ability to read text correctly, and resolution of disputes on the basis of document text alone.

Publication Citation

56 Tort Trial & Ins. Prac. L.J. 551 (2021).

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