I’ve posted my case study of the New York Court of Appeals on SSRN, showing how the Court sustains formalism in contract interpretation whilst embracing a kind of pragmatism about statutory interpretation. “Interpretive Divergence” is forthcoming in Notre Dame’s Journal of Legislation. Here is the abstract:
It can sometimes feel as if those who study legal interpretation assume that there should be harmonization in the law of interpretation: that courts should be interpreting legal documents—wills, contracts, statutes, constitutions—with similar concerns in mind. Those who like legislative history for statutory interpretation might be predicted to like parol evidence in contract interpretation. Teachers can tend to associate permissive admission of extrinsic evidence with a politically liberal ideology and more restrictive interpreters as politically conservative, however imperfect the correlation. This Essay focuses attention on the New York Court of Appeals, which is decidedly textualist about contract interpretation but decidedly purposivist about statutory interpretation. It explores some recent exemplary cases to show where the New York Court of Appeals tends to land in what turns out to be two different battlefields in the law of interpretation. Finding that there is “interpretive divergence” between statutory and contract cases, the Essay then reflects on the practice of divergence, revisiting assumptions about why anyone might have thought harmonization was sensible.
Posted by Ethan Leib on April 20, 2023 at 12:01 PM