TAMIL NADU NATIONAL LAW

SCHOOL

B.COM.LL.B. (HONS.), SIXTH SEMESTER

2017

INTERPRETATION OF STATUTES PROJECT

ON

A CRITIQUE OF TEXTUALISM AND APPLICATION OF GAME THEORY

PROJECT BY:

Pradyumna L Narasimha

BCO140039

SUBMITTED TO:-

Miss Preetham Balakrishnan

ASST. PROFESSOR OF LAW

CONTENTS
INTRODUCTION.................................................................................................................................3
TEXTUALISM.....................................................................................................................................4

1
 Meaning and Origin...........................................................................................................................4
Textualists and the Interpretation Wars..............................................................................................5
The Impact of Textualism on Legal Interpretation.............................................................................6
GAME THEORY..................................................................................................................................8
Meaning and its Application..............................................................................................................8
Contractual Interpretation Principles...............................................................................................10
CONCLUSION...................................................................................................................................11
BIBLIOGRAPHY...............................................................................................................................13
Books:.............................................................................................................................................13
Articles:...........................................................................................................................................13
Cases:..............................................................................................................................................14

2
 INTRODUCTION
What the words of a statute say and what they mean are often entirely different. Justice
Antonin Scalia, late justice of the United States Supreme Court said that in interpreting
statutory texts the apparent plain meaning must be the alpha and omega in a judges
interpretation of the statute. Textualism is the most discussed and debated school of
interpretation and is often times described as an intellectual movement which originated in
the early nineties1 through Judges Scalia, Thomas and Easterbrook2. The term textualism
never came to be used by the originators themselves but was a characterisation extensively
used by critics to describe jurists and judges who stuck to the letter of the statute and nothing
else. The most common way of distinguishing textualism from its principal judicial rival,
intentionalism, purports basic disagreement about the proper goal of statutory interpretation.
Intentionalists try to identify and enforce the "subjective" intent of the enacting legislature,
while textualists care the "objective" meaning of the statutory text.

Game theory is a recently developed tool of interpretation brought to the forefront by Harvard
political scientist Barry Weingast. Game theorists are different to textualists in the sense that
they readily dive into the legislative history with the aim of creating a theory of scientific
intentionalism. Game theory necessarily looks at interpretation of statutes as a series of
contracts and rejects any legal rules increasing the cost of negotiation 3, common law was
acceptable to the extent it furthered the purpose of the contracting parties and accepted any
statutory construction which increased the efficiency.

The article is divided into three major parts, the first part will deal in detail with textualism-
its early proponents and its application in judgements and finally the part will end with the
criticisms of textualism and the evolution of intentionalism as an academic discipline. The
second part will deal with the relatively newly formed theory of interpretation game theory.
Before this game theory was only used to solve economic behavioural problems but now is
extensively used in science, biology and even law. The researcher will try and characterise
the efficacy of game theory and how it is different from game theory and intentionalism and
how it is a better tool of statutory interpretation.

1 The earliest use of the phrase textualism was in 1893 as reported by the Oxford English Dictionary
2 William Eskridge Jr., Dynamic Statutory Law (Edition 1 1994)
3 Victoria Nourse, Misunderstanding Congress: Statutory Interpretation, Super majoritarian difficulty and the
Separation of Powers, The Georgetown Law Review, Vol.99 [2011] pp.1133

3
 TEXTUALISM

Meaning and Origin

The goal in this section is to put textualism into historical context and not a historical
perspective on statutory interpretation itself. At the time of Founding in 1776, there was no
definitive consensus on the nature of law or judge's place in the constitutional structure, and
there was therefore no single, dominant perspective on the judicial role in statutory
interpretation. Prevailing views of law possessed both natural law and positivist elements.
Natural law theory was quite powerful, and the Founders expected judges to draw upon
natural law principles as sources of decision in both common law cases and in the course of
interpreting legislative enactments4.

Moreover, the Founders expected judges to be constrained not only by natural law itself, but
also prior cases and a host of canons of construction that may have been derived by natural
law but had evolved into independent limits on judicial discretion 5. The founders though
realised even though statutes are drafted with extraordinary technical skill they could be
ambiguous depending on the case before the judge. Therefore, they believed that even if the
judges do not impose their will, they certainly do exercise their will 6. The first few years after
the founding, the role of the judiciary was not very well defined and it sort of had an
influence on determining the role that judges could play in statutory interpretation. In such
circumstances a lot of material was examined including the common law precedents, pre and
post- revolutionary American practice, the Philadelphia Convention and early federal cases.
William Eskridge concluded that judges interpreting statutes were thought at the founding to
be both agents carrying out directives laid down by the legislature and partners in the
enterprise of law elaboration, for they (like the legislature) are ultimately agents of 'We the
People7. Although judges were bound to begin with the words enacted into law by the
legislature, they would not mechanically follow these words, but would interpret them and, in
so doing, would exercise the judiciarys supplemental powers under the constitution8.

4 Gordon S Wood, The Creation of the American Republic: 1776-1787, Vol. 24, Virginia Law Review, [1969]
pp.291-305
5 The Federalist No.78 (Alex Hamilton) pp.442 "To avoid an arbitrary discretion in the courts, it is
indispensable that they should be bound down by strict rules and precedents which serve to define and point out
their duty in every particular case that comes before them.
6 Phillip .A Hamburger, Natural Rights, Natural Law, and American Constitutions, Vol.102, Yale Law Journal,
[1993] 954-55
7John F. Manning, Textualism and the Equity of the Statute, Vol.101, Columbia Law Review, [2001] pp.8-9
8 William N Eskridge Jr., Textualism, the Unknown Ideal?, 96 Mich. Law Review, [1998] pp.1522-1526

4
Over the course of the century that followed, changing views of language and interpretation
led to a re-evaluation of the judicial role in the constitutional structure and to corresponding
doctrines of construction. The Court's evolving views on interpretation and the judicial role
prompted a new deference to state courts, to federal administrative agencies and to Congress.
This new concern with judicial leeway and judicial self-aggrandizement set the stage for
modern textualism9.These institutional, political, intellectual evolutions together led to a
significant readjustment of traditional assumptions about judicial power over statutory
interpretation. The interpretation of statutes in the administrative state was now
acknowledged to be an active, rather than a passive endeavour10.

Textualists and the Interpretation Wars

Textualists core interpretive theory found its origins in legal realism11. The textualist theory
came as a by-product of the criticism of the approach that the courts took in some cases.
Early textualists held that when courts do take such an approach they are simply passing off
their own preferred policies for those of congress12.

In the standard account of the interpretation debate, textualists and other interpreters are at
war because of their fundamentally different understandings of the goals of statutory
interpretation13. Textualists believe that the goal of statutory interpretation is to determine the
objective meaning of statutory text14. They believe that, the text is the law, and it is the text
that must be observed15. Quoting Justice Holmes, the textualist says, "We do not inquire what
the legislature meant; we ask only what the statute means"16. Textualists believe the
constitutional process of enactment imbibes statutory text with legal force, regardless of what
any legislator understood or intended the text to mean.

Intentionalists reject this view. The intentionalists regard the goal of statutory interpretation
as being to discern and implement the intent of the legislature 17. The intentionalists do not

9 Supra note 3
10 Jonathon T Molot, The Rise and Fall of Textualism 106 Col. L. Rev. [2006] pp.1-69
11 Supra note 7
12 Frank H Easterbrook, Text, History and Structure in Statutory Interpretation, 17 Harvard Review of Law
and Public Policy [1994] pp.61,68
13 Jonathan R. Siegel, Textualism and Contextualism in Administrative Law, 78 B.U. Law Review, [1998]
1023
14 Jonathan R Siegel, The Inexorable Radicalization of textualism, 1 University of Pennsylvania Law Review
158 [2009] pp.117-178
15 Ibid.
16 Oliver Wendell Holmes, The Theory of Legal Interpretation, in Collected Papers (2 nd Edition 1920) pp.203-
207
17 Supra note 14

5
ignore statutory text, but neither do they regard the text as simply being the law, independent
of the intent behind it, because, in rare cases the literal implication of a statute will produce a
result demonstrably at odds with the intentions of its drafters, and those intentions must be
controlling18. Thus the intentionalists regards legislative intent and not statutory text as the
ultimate determinant of the law.

Textualists would follow the meaning of statutory text wherever it leads, without concerning
themselves with whether that meaning matches the meaning intended by the enacting
legislature or whether it serves the legislature's purpose. Intentionalists, by contrast, would be
alert to potential incongruence between textual meaning and legislative intent and would be
guided by the latter where the two could be shown to differ.

Once textualists observed that statutes do not have a single, true, underlying purpose waiting
to be discovered by judges, and that judges may employ different interpretive techniques that
might be more or less manipulable, then textualists had a strong constitutional argument for
constraining judicial leeway and making the interpretive process more transparent and
predictable19. Textualists observed that it is the language of a statute, and not its underlying
purpose, that is enacted into law by both the Houses of Congress and the President 20. To
favour a statute's purposes over its text, they argued, was to ignore the constitutionally
prescribed lawmaking procedures and to aggrandize the judiciary's design. Indeed, a judge
who favours statutory purposes over statutory text risks not only confusing his own policy
views with those of Congress, but also violating the Constitution by making federal law
outside of the constitutionally prescribed lawmaking procedures.

The Impact of Textualism on Legal Interpretation

Textualism's initial success was largely a product of how effectively it used post realist
interpretive theory to highlight the excesses of strong purposivism 21. From the late nineteenth
century through the Warren Court era and beyond, purposivist judges had purported to base
their decisions on Congress's statutory purposes. By highlighting the creativity inherent in
this purposivist search for meaning22, textualists demonstrated that these purposivist judges

18 Griffin v. Oceanic Contractors, Inc. 458 U.S. 564 (1982) (Stevens .J dissent)
19 Supra note 7
20 See Jeremy Waldron, The Dignity of Legislation, 54 Mid. Law Review [1995] 633-654 Md. L. Rev. 633,
654 (1995) (observing that legislation involves "a large gathering of disparate individuals who purport to act
collectively ... but who can never be sure exactly what it is that they have settled on as a collective body, except
by reference to a given form of words in front of them).
21 Ibid.
22 Adrian Vermuelle, Interpretive Choice, 75 N.Y.U. Law Review 74 [2000]

6
were imposing their own purposes, rather than implementing Congress's. By shifting the
emphasis away from statutory purposes and toward statutory language, textualists
emphasized that they could at least cabin judicial leeway and limit judicial creativity 23.
Moreover, upon demonstrating the subjectivity inherent in an aggressive search for
underlying legislative purposes or intent, textualists had little trouble convincing adherents
and non-adherents alike that such aggrandizement of the judicial role was at odds with the
constitutional structure. Textualism's constitutional theory resonated with judges and scholars,
who generally accept that courts should respect legislative instructions and follow laws
enacted through bicameralism and presentment rather than make new laws themselves24.

This is not to say that all of Textualisms observations or the Constitution were
uncontroversial. As appealing as textualisms core insights may have been, some textualists
taking these insights to extremes that mainstream scholars found unappealing 25. Moreover, to
the extent that textualists emphasized the text actually enacted into law by Congress, they not
only weighed into the faithful agent versus coequal partner 26 but also favoured a static
understanding of statutory meaning over dynamic ones27.

Modern textualism rejects the formalist assumptions that underlay both strong purposivism
and the plain meaning school28. To be sure, textualism's focus has been on combating
purposivism. But as textualist arguments came to rest on understandings of law and language,
textualists could no longer claim that statutory texts had an inherent meaning that could be
gleaned without any consideration of context 29. Rather, textualists came the contemporary
notion that language only has meaning when in context30.These modern textualists may
criticize strong purposivism for giving too much weight to context, and for emphasizing
certain kinds of context (legislative history) that textualists think should be off limits, but
modern textualists do not, in principle, object notion that judges should look to context as
well as text31. They do portray the interpretive enterprise in so passive a light as their meaning

23 Supra note 12
24 Supra note 10
25 David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. Law Review [1992]
pp.933-936
26 Daniel A Farber, Do Theories of Statutory Interpretation Matter? A Case Study, 94 Northwestern Law
Review 1409 [2000]
27 Ibid.
28 Supra note 7
29 Ibid.
30 Supra note 12
31 Supra note 13

7
school predecessors had. Indeed, modern textualists not look to context, as well as text, but
also routinely use purpose to resolve statutory ambiguity32.

GAME THEORY

Meaning and its Application

In recent years, scholars have brought game theory to legislative studies. Bill Eskridge and
John Ferejohn led the theoretical charge, masterfully analysing the Court-Congress-President
game33. More recently, law professor Daniel Rodriguez teamed up with eminent Harvard
political scientist Barry Weingast to apply the insights of game theory to interpret specific
statutes34, following seminal articles by McNollgast and others on the positive political theory
of statutory interpretation35. Game theory uses bargaining theory to understand the deal struck
by Congress36.Judges and statutory theorists have suggested imaginative deal reconstruction
for years. Judge Learned Hand and Judge Posner have advocated such an approach 37. Game
theory provides a seemingly more sophisticated analytic veneer, adding a new vocabulary of
cheap talk, costly concessions, and signalling.

Game theorists eagerly dive into the-legislative history; their aim is to create a more scientific
intentionalism38, in the sense that game theorists aim to create a scientific theory of legislative
rhetoric that weeds out unreliable from reliable legislative history. As McNollgast 39 put it
over a decade ago, ascertaining legislative intent requires separating the meaningless actions
(or signals) of participants in the legislative process from the consequential signals that are
likely to reveal information about the legislatures intentions. Cheap talk is communication
that is costless for the speaker to make and that is unverifiable and therefore untrustworthy
and costly signalling is defined as communication where the speaker is credited for his
statements and is taken seriously. Costly signals can be trusted; cheap talk cannot.
For example, in Holy Trinity40, the question was whether a minister who contracted to serve a
New York church fell within a statute aimed to prevent large scale importation of immigrant
32 United States v. Fausto, 484 U.S. 439 (1998) (Scalia .J)
33 William Eskridge & John Ferejohn, Article 1 Section 7 Game 80 Geology Law Review 523 [1990]
34 Daniel B Rodriguez & Barry Weingast, The Paradox of Expansionist Statutory Interpretations. 101
Northwestern Law Review 1207 [2007]
35 Supra note 33
36 Richard a Posner, Statutory Interpretation- in the Classroom and in the Courtroom 50 U.Chi. Law Review
800,817 [1983]
37 ibid.
38 Supra note 33
39 Ibid.
40 Rector of Holy Trinity Church v. United States (Church of the Holy Trinity), 143 U.S. 457 (1892)

8
labourers. A nine-judge bench presided over the case with Justice Brewster gave the opinion
of the court on behalf of all the judges. The Supreme Court explained, that it must be
conceded that the act of the church is within the letter of this section. The statute applying
not only to labour and service but labour and service "of any kind. The court in the end
rejected this broad interpretation citing the reason that it is the duty of the court to look into
the intention of the legislation when the statute has been worded so broadly. But, what
becomes more important to game theorists is the material that was considered in coming to
this conclusion. The original committee report supporting a broad interpretation of labour
would be cheap talk41 because the authors anticipated that the bill would not pass and that
there was no actual legislative cost (merit) to making such a statement. Curiously, game
theory relies in significant part on a legal, as opposed to a political, theory of legislation.
Also, game theory looks at statutes as contracts; both formalize bargains among actors with
diverse and partially conflicting interests42. As in contract law, the role of the courts is to fill
in the gaps in legislation by interpreting the intentions of the law's enacting coalition 43. Just as
a court finds the actual intention between contracting parties, game theory aspires to find the
original intent of legislation. The contractual analogy explains why McNollgast rejects
academic textualists' distaste for legislative history: One cannot argue that a contract between
two parties does not embody their mutual agreement because both parties delegated the
negotiation to their lawyers and then signed it after only superficial perusal of its contents.
McNollgast rejects textualism's willingness to blind itself to relevant information.
Theoretically well-grounded interpretations of legislative signals will produce better
information than poorly grounded readings of the history or than a decision to ignore all of
the history because some of it is uninformative44.

In an early paper, McNollgast made clear that the analogy to contract was based on the
economic approach to the law of contracts, which evaluates legal regimes according to their
efficiency45 . Legal rules increasing the cost of negotiation were disfavoured; common law
rules were viewed as efficient to the extent that they furthered the purposes of the contracting
parties46. Similarly, rules of statutory construction should be created to increase efficiency,
viewed in the light of contract law, the purpose of canons of statutory interpretation is to
41 Supra note 22
42 Supra note 33
43 ibid.
44 Ibid.
45 McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 Geo L.J. 705
(1992)
46 Ibid.

9
facilitate legislative agreements and thereby advance the efficiency of the legislative process.
This, they contended, could be accomplished by scouring the legislative history to find the
moderate coalition necessary for bill passage. Consequently, if statutory interpretation is
guided by the principle of honouring the spirit of the legislative bargain, it must not focus
only on the preferences of the ardent supporters, but also on the accommodations that were
necessary to gain the support of the moderates47.

Contractual Interpretation Principles

The ambiguity principle in contract law and how the courts have interpreted such ambiguities
provide a basis for using similar principles in interpreting statutes as contracts. There are
basically four canons of construction commonly used in cannon law, ejusdem generis;
expressio unis est exclusion alterus; the general includes the specific and same words used in
different parts of the contract mean the same. The principle of ejusdem generis necessarily
implies that when a general word or phrase follows a list of specifics, the general word or
phrase will be interpreted to include only items of the same type as those listed. According to
the contractual interpretation principal of ejusdem generis, the meaning of a word in a series
of words is determined 'by the company it keeps. Delaware courts recognize the principle of
ejusdem generis, which stands for the proposition that where general language follows an
enumeration of persons or things, by words of a particular and specific meaning, such general
words are not to be construed in the widest extent, but are to be held as applying only to
persons or things of the game general kind or class as those specifically mentioned48.
The second principle means that when a term expressly includes a specific thing then it
also means that it concomitantly excludes another thing that in common parlance could be
included in that. Even where there is ambiguity, if parties to a contract omit terms
particularly, terms that are readily found in other, similar contractsthe inescapable
conclusion is that the parties intended the omission. The maxim expressio unius est exclusio
alterius, as used in the interpretation of contracts, supports precisely this conclusion49.
The third principle states that the specific terms also include the generally conceivable
terms as well. Well-settled rules of contract construction require that a contract be construed
as a whole, giving effect to the parties' intentions. Specific language in a contract controls
over general language, and where specific and general provisions conflict, the specific
provision ordinarily qualifies the meaning of the general one. Courts construing contracts

47 Supra note 33
48 Aspen Advisors v. United Artists Theatre Co., 861 A.2d 1251 (Del.2004)
49 In re Ore Cargo, Inc. 544 F.2d 80,82 [2nd Cir 1976)

10
must give specific terms and exact term greater weight than general language50. New York
law recognizes that definitive, particularized contract language takes precedence over
expressions of intent that are general, summary, or preliminary51.
The fourth and final principle that should govern statutes similar to how it is applied in
contract law is the rule of construction that similar words used in two different parts of the
contract must be given one meaning. A proper interpretation of a contract generally assumes
consistent usage of terms throughout the Agreement. When considering the meaning of a
contract term in the larger context of an entire agreement, a Court may presume that the same
words used in different parts of writing have the same meaning52.

CONCLUSION
Textualists are drawn to bright-line distinctions; they have tended to describe their rejection
of intentionalism in fundamental terms, as relating to the very purposes of statutory
interpretation. What is clear is that judges whom we think of as textualists have a greater
affinity for rules than judges whom we think of as intentionalists. Even if textualists and
intentionalists have exactly the same goals, this fact could account for most of the distinctive
features of textualism, including not only the textualists' stance on legislative history, but also
their reluctance to diagnose drafting errors, their relative receptivity toward formal canons of
construction, and their caution about inferring exceptions or embellishments to statutory
language in the service of the legislature's underlying aims.

Intentionalism on the other hand focuses predominantly on the legislative history and
intention behind the statute passed. This over reliance on legislative history and intention also
becomes highly problematic as it allows room for subjectivities to creep in and it will lead to
varied decisions not based on enough objective standards or requirements. Another problem
with intentionalism or purposivism is that while analysing legislative history, it makes no
distinction between the useful and useless legislative materials. The distinction helps sort the
relevant information of a statute useful in decision making and the irrelevant information that
wastes the time of the court. Therefore unless the theory provides for such a distinction it can
never be far from criticism.

50 County of Suffolk v. Alcorn, 266 F.3d 131 (2nd Cir. 2001)

51 John Hancock Mutt Life Ins. V. Carolina Power & Light Co. 717 F.2d 664 (2nd Cir. 1983)
52 Finest Investments v. Sec. Trust Co. of Rochester 96 A.D. 2d. 227 (4th Dept. 1983)

11
This question about the most rounded theory statutory interpretation should be more
important because many ideas of Congress in the statutory interpretation literature
acknowledge gaps or ambiguity in statutes. Textualists' chaos theory implies vast gaps.
Intentionalists assume that courts will partner in filling gaps. It has been reasonably well
established that both textualism and intentionalism suffer from problems, and game theory
establishes a scientific intentionalism which has two main levels of operation. In the first
instance, the proper application of the theory necessarily means separating the relevant
legislative information from the irrelevant legislative materials because the theory does not
merit judges and legislators who use such irrelevant information as the outcome required is
never actualized. The second application is to look at statutes as contracts between the
legislature and the people and the courts role then becomes one of filing the gaps in the
contract by making use of canons of construction and common law principles and practices.

Game theory as a school of interpretation does suffer from problems in itself, but scholars
and political scientists must exercise caution before rejecting such a proposition. It is the only
theoretical argument which imbibes the major principles of textualism and intentionalism and
at the same time has reinvented itself to be free from the same criticisms that affect the above
mentioned theories.

BIBLIOGRAPHY

Books:
1. William Eskridge Jr., Dynamic Statutory Law (Edition 1 1994)

12
 2. Alex Hamilton The Federalist No.78 pp.442
3. Oliver Wendell Holmes, The Theory of Legal Interpretation, in Collected Papers (2 nd
Edition 1920) pp.203-207

Articles:
1. Victoria Nourse, Misunderstanding Congress: Statutory Interpretation, Super
majoritarian difficulty and the Separation of Powers, The Georgetown Law Review,
Vol.99 [2011] pp.1133
2. Gordon S Wood, The Creation of the American Republic: 1776-1787, Vol. 24,
Virginia Law Review, [1969] pp.291-305
3. Phillip .A Hamburger, Natural Rights, Natural Law, and American Constitutions,
Vol.102, Yale Law Journal, [1993] 954-55
4. John F. Manning, Textualism and the Equity of the Statute, Vol.101, Columbia Law
Review, [2001] pp.8-9
5. William N Eskridge Jr., Textualism, the Unknown Ideal?, 96 Mich. Law Review,
[1998] pp.1522-1526
6. Frank H Easterbrook, Text, History and Structure in Statutory Interpretation, 17
Harvard Review of Law and Public Policy [1994] pp.61,68
7. Jonathan R. Siegel, Textualism and Contextualism in Administrative Law, 78 B.U.
Law Review, [1998] 1023
8. Jonathan R Siegel, The Inexorable Radicalization of textualism, 1 University of
Pennsylvania Law Review 158 [2009] pp.117-178
9. Jonathon T Molot, The Rise and Fall of Textualism 106 Col. L. Rev. [2006] pp.1-69
10. Jeremy Waldron, The Dignity of Legislation, 54 Mid. Law Review [1995] 633-654
Md. L. Rev. 633, 654 (1995)
11. Adrian Vermuelle, Interpretive Choice, 75 N.Y.U. Law Review 74 [2000]
12. David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. Law
Review [1992] pp.933-936
13. Daniel A Farber, Do Theories of Statutory Interpretation Matter? A Case Study, 94
Northwestern Law Review 1409 [2000]
14. William Eskridge & John Ferejohn, Article 1 Section 7 Game 80 Geology Law
Review 523 [1990]
15. Daniel B Rodriguez & Barry Weingast, The Paradox of Expansionist Statutory
Interpretations. 101 Northwestern Law Review 1207 [2007]
16. Richard a Posner, Statutory Interpretation- in the Classroom and in the Courtroom 50
U.Chi. Law Review 800,817 [1983]
17. McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory
Interpretation, 80 Geo L.J. 705 (1992)

Cases:
1. County of Suffolk v. Alcorn, 266 F.3d 131 (2nd Cir. 2001)

13
2. John Hancock Mutt Life Ins. V. Carolina Power & Light Co. 717 F.2d 664 (2nd Cir.
1983)
3. Finest Investments v. Sec. Trust Co. of Rochester 96 A.D. 2d. 227 (4th Dept. 1983)
4. Aspen Advisors v. United Artists Theatre Co., 861 A.2d 1251 (Del.2004)
5. In re Ore Cargo, Inc. 544 F.2d 80,82 (2nd Cir 1976)
6. Rector of Holy Trinity Church v. United States (Church of the Holy Trinity), 143 U.S.
457 (1892)

14