Professor Kemit Mawakana's research article on the Federal Circuit's embrace of the plain
meaning rule was voted by ContractsProf Blog to be among the top 5 Best Contracts Scholarship of 2011.From the ContractsProf Blog:
"Professor Mawakana's article uses anthropological work to highlight
the danger that injustices will arise as a result of the Federal
Circuit's embrace of the plain meaning rule (PMR) in Coast Federal Bank, FSB v. United States, 323
F.3d 1035 (Fed. Cir. 2003) (en banc). Dr. Ani developed the concept of
the rhetorical ethic (RE) which she associates with Euro-American
culture. The RE assists Euro-Americans in the maintenance of power,
enabling them to talk of lofty principles such as peace and goodwill
while in fact engaging in war and other destructive practices.
According to Dr. Ari, "Nowhere other than in European culture do words
mean so little as indices of belief."
After an introductory section providing examples of the RE at work in
U.S. society ("All men are created equal . . ."), Professor Mawakana
takes us through the history of the PMR. Applying the PRM in the
contractual context, courts give words their plain, ordinary, and
literal meaning, even if that meaning differs from the parties intention
and even if it yields to harsh or inequitable results. The PMR fell
into disfavor in the 20th century, havnig been rejected by the
Restatement (Second) of Contract and by the Uniform Commercial Code, but
some jurisdictions still follow the PMR, and the Federal Circuit
embraced it in its 2003 decision in Coast Federal.
Professor Mawakana next reviews the facts and history of Coast Federal, in which the Federal Circuit en banc
reversed a panel decision, finding that the PMR applied to this very
complex case with a tortured history. He reviews arguments for an
against the PMR, and then, in a concluding section explains the PMR with
the assistance of Dr. Ari's RE theory. From this perspective, the PMR
is an embodiment of RE and injects hypocrisy into the pursuit of
justice. Professor Mawakana's solution is simple: permit the
introduction of extrinsic evidence in contractual disputes."