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Publication Title

Washington University Law Quarterly

Abstract

This Article addresses the question of how courts should interpret deviant language-language that falls well beyond the parameters of conventional phraseology. This Article concludes that courts should abandon precedent completely in favor of other governing factors-such as intent, custom, fairness and other policy considerations-because the benefits of ad hoc determination far outweigh the costs of inconsistent treatment of such language. To reach this conclusion, Part II first examines what courts actually say and do about deviant language in two illustrative situations, one involving consideration and the other a gift. Part III assesses the importance and value of precedent in these situations. It begins with further analysis of the reasons for interpretive consistency and the circumstances in which adherence to precedent might become important. Within the context of these situations, Part III then examines the impact of ad hoc interpretation of deviant language. Finally, Part IV recommends how courts should interpret deviant language, concluding that most cases should be governed by factors peculiar to the case and not by precedent.

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