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Prof. Kemit Mawakana's Research on Plain Meaning Rule Voted Top 5 Best Contracts Scholarship of 2011

Monday, February 27, 2012   (0 Comments)
Posted by: Max Rodriguez
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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."
Kemit Mawakana

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."

Read Professor Kemit Mawakana's research article in the University of Maryland Law Journal of Race, Religion, Gender and Class, "In the Wake of Coast Federal: The Plain Meaning Rule and the Anglo-American Rhetorical Ethic."  Read more about Professor Mawakana on his faculty page.

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