Contract Interpretation with Corpus Linguistics

By Mouritsen, Stephen C. | Washington Law Review, September 1, 2019 | Go to article overview

Contract Interpretation with Corpus Linguistics


Mouritsen, Stephen C., Washington Law Review


Introduction

When interpreting the undefined terms in a contract, judges often turn to the so-called Plain Meaning Rule, an interpretive heuristic that requires courts to consider only the text of the contract and exclude extrinsic evidence, provided that the text of the contract is unambiguous. In a familiar formulation, the Rule states that "if a 'clear, unambiguous' meaning is discernible in the language of the contract, no extrinsic evidence of surrounding circumstances may be admitted to challenge this interpretation."1

The Plain Meaning Rule is often justified on the grounds that it prevents strategic behavior and the fear that allowing contracts to be "challenged in the name of the parties' actual intent" will "produce disorder or even chaos, waiting to be exploited by unscrupulous litigants who demand a bonus to do what they already promised to do."2 In such cases, "the disagreement often manifests itself in the litigation positions of the parties, whose interpretations may more realistically reflect their lawyers' clever post hoc arguments than any serious dispute about meaning."3 The Rule is also justified on the grounds of efficiency.4 Parties may prefer a strong Plain Meaning Rule believing that it lowers judicial search costs by limiting the number of sources a judge has to consider to find plain meaning.5 A strong Plain Meaning Rule may also allow judges to resolve more cases at earlier stages of the litigation (for example, at the motion to dismiss or summary judgment stage) and thus "reduce the number of intractable credibility issues in trials for breach of contract."6

While intuitively appealing, the Plain Meaning Rule faces a number of challenges. For example, consider the case of an ecological tourism company that seeks to recover from its insurer for failing to defend a negligence action arising from a customer's drowning death that occurred while snorkeling.7 The insurance contract at issue makes clear that it "does not apply to 'bodily injury' [including death] to any person while practicing for or participating in any sports or athletic contest or exhibition that you sponsor."8 This raises the question: Is snorkeling a sport? To resolve this question the court invokes the Plain Meaning Rule and cites dictionary definitions that show that sport is defined as a rulebased athletic competition, and that snorkeling must therefore fall outside of the plain meaning of sport.9

The court, like many courts before it, ignored a perfectly wellattested,10 alternative sense11 of the word it was purporting to define. indeed, the same dictionaries cited by the court also define sport as a "recreational activity," without reference to competition.12 The court not only failed to take into account an alternative sense, but had no way of knowing the comparative prevalence of the competing senses in the relevant contractual context and no basis for concluding that one should be preferred over the other. These problems faced in the snorkeling case are hardly idiosyncratic. They are similar to problems faced by other courts when called upon to interpret contractual language.

Linguistic corpora can help judges and lawyers evaluate and work to resolve problems of finding meaning in contractual language. Corpus linguistics may chart a middle way between the formalist and contextualist approaches to contract interpretation, which permits the consideration of extrinsic evidence even absent a finding of ambiguity. As discussed below, corpus linguistics provides judges and lawyers with objective information about language use without some of the prohibitive costs and risks of strategic behavior associated with contextualist approaches to interpretation. Corpus linguistics may help give content to otherwise vague legal concepts like "plain meaning," "ambiguity," and "context." And corpus linguistics can provide evidence of language usage that cannot be obtained through introspection or from dictionaries-evidence of the syntactic, semantic, and pragmatic contexts in which contractual terms are used, and evidence of the language usage from particular speech communities at a particular point in history. …

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