At The Koncise Drafter, Ken Adams discusses the new Scalia/Garner book, looking at it from the point of view whose main interest is in drafting contracts:
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.
This seems to me miss the mark. I’m not contracts expert, so correct me if I’m wrong, but the interpretation of contracts seems necessarily drafter-oriented — the aim of law being to give effect to the intent of the parties. Think of the requirement for a valid contract: offer, acceptance, meeting of the minds, etc. It’s all about the “bargain” between to players — it’s about them. Legislation, on the other, seems third-party oriented — what matters most is that those that are to be governed by it know as well as possible how they are to conduct themselves. The citizen does not know or have before him the volumes of (often conflicting) statements of the legislators’ intent. A court should not later expect him to have conformed his behavior to some purpose that may not have been readily apparent from the text of the law itself. A statute is not a “contract” between the legislators themselves, but between them and the citizen. Not so a contract. Even when there is a third-party beneficiary to a contract, it is not his expectation that controls his rights, but still that of the contracting parties.