How To Interpret A Contract? Ask Those Who’d Sign It
Law360.com, March 21, 2018
Surveys have been gaining prominence as an accepted method of evaluating consumer perceptions in a wide range of cases, including patent litigation (to assess the drivers of consumer demand) and unfair competition matters (to evaluate potential consumer confusion). However, when it comes to contract disputes, it is often left to the judge or jury to interpret the contract terms.
In an article published on Law360.com, “How To Interpret A Contract? Ask Those Who’d Sign It,” Professors Omri Ben-Shahar and Lior Strahilevitz of The University of Chicago, along with Analysis Group Managing Principal Rebecca Kirk Fair, argue that the time has come to introduce surveys to contract disputes as well. The authors note that surveying consumers similar to those bound by the contract in question in such disputes can yield three notable benefits: it can align the legal interpretation with the meaning that the contract's intended audience assigns; it can provide reliable results based on large representative samples; and it can absolve the court from having to speculate about how consumers understand the relevant language. The authors also cite three recent case examples that illustrate the potential advantages of surveys over traditional methods currently used by many courts.
This approach is further articulated by Professors Ben-Shahar and Strahilevitz in an article published in New York University Law Review, "Interpreting Contracts via Surveys and Experiments."
Jiang D, Kirk Fair R, Ben-Shahar O, Shampanier K, Strahilevitz L