My interest is drafting contracts, not interpreting them. But to stay out of trouble when drafting contracts, it helps to have a decent grasp of how judges ascertain the meaning of contract language. So I’m happy to have the book.
He has his doubts about whether textualism is an appropriate stance with respect to interpreting contracts:
This [theorizing about interpretation] isn’t my turf, and I have no interest in wading into a debate filled with -isms. But from my seat in the bleachers, it seems that Scalia and Garner’s approach bears little relation to the world I live in. If a court has been asked to interpret a contract, that’s because it has failed to accomplish its purpose—to be clear enough that readers won’t have to fight over its meaning. Furthermore, there’s a good chance that it was put together by lawyers for whom drafting consists of regurgitating verbiage of questionable quality and relevance and tweaking it in compliance with urban legends that pass for conventional wisdom. So any “meaning that it has borne from its inception” will likely be accompanied by a good measure of incoherence.
That’s why Scalia and Garner’s canons aren’t about determining actual meaning. Instead, they’re principles for arbitrarily reverse-engineering meaning where meaning is otherwise not apparent. Using principles of construction to cut the Gordian knot of contract uncertainty might be appropriate, but it’s unhelpful to downplay the expediency involved. And why disdain alternative approaches? If review of drafts, notes, and correspondence can shed light on a contract ambiguity, that seems at least as worthwhile a way to attempt to resolve confusion as having a judge select from among alternative meanings.