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The debate over contract interpretation rules, focusing on the preference of most contracting parties. An empirical study of 1,521 commercial contracts disclosed to the SEC reveals that a majority (75.28%) include a textualist 'merger clause,' which triggers textualist interpretation rules. The article discusses the theoretical arguments for both textualist and contextualist approaches and the lack of empirical literature on parties' actual preferences. The study also examines the dominance of New York choice-of-law clauses over California choice-of-law clauses and the reasons behind it.
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Scott, supra note 16, at 587 (“[A] disappointed party may plausibly claim that the parties’ course of dealing or their oral negotiations showed that, in the parties’ language, ‘all’ meant ‘some’... When such a claim is false but found to be true, the court necessarily will misinterpret the contract.”).
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Civil Marriage , 27 C ARDOZO L. R EV. 1161, 1198 (2006) (“Consumer contracts differ from commercial contracts between businesses.”); see also Silverstein, supra note 2, at 261.
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