Friday, August 12, 2005

Cynical about the canons

These authors have well expressed what I think of the "canons of construction" or "rules of interpretation" applied to construe drafted documents:
  • Most of the so-called rules of contract interpretation are not really rules at all. They are more like guiding principles that the courts adhere to with varying degrees of consistency . . . . Almost every rule has an exception or offsetting rule, with the plaintiff relying on one rule and the defendant on another.--Thomas R. Haggard, Contract Law From a Drafting Perspective 62 (West 2003).

  • In truth, these "principles" are merely guidelines--presumptions that may be weak or strong depending on circumstances. Sometimes they are called "rules"--"rules of construction"--but in fact they are all rebuttable.--Peter Butt & Richard Castle, Modern Legal Drafting: A Guide to Using Clearer Language 38 (Cambridge Univ. Press 2001).

  • If the plain-meaning rule provides the result the court thinks is appropriate in the case, it will use it. If not, it will go outside of the words of the statute to external sources . . . .--Robert J. Martineau, Drafting Legislation and Rules in Plain English 30 (West 1991).
Yes, I'm cynical about them, and I think legal drafters ought to all but ignore them when drafting.

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