Document Type

Article

Publication Date

2022

DOI

10.2139/ssrn.3786090

Abstract

How should judges decide which linguistic canons to apply in inter­preting statutes? One important answer looks to the inside of the legisla­tive process: Follow the canons that lawmakers contemplate. A different answer, based on the “ordinary meaning” doctrine, looks to the outside: Follow the canons that guide an ordinary person’s understanding of the legal text. We offer a novel framework for empirically testing linguistic canons “from the outside,” recruiting 4,500 people from the United States and a sample of law students to evaluate hypothetical scenarios that correspond to each canon’s triggering conditions. The empirical findings provide evidence about which traditional canons “ordinary meaning” actually supports.

This Essay’s theory and empirical study carry several further impli­cations. First, linguistic canons are not a closed set. We discovered possi­ble new canons that are not yet reflected as legal canons, including a “nonbinary gender canon” and a “quantifier domain restriction canon.” Second, we suggest a new understanding of the ordinary mean­ing doctrine itself, as one focused on the ordinary interpretation of rules, as opposed to the traditional focus on “ordinary language” generally. Third, many of the canons reflect that ordinary people interpret rules with an intuitive anti-literalism. This anti-literalism finding challenges textualist assumptions about ordinary meaning. Most broadly, we hope this Essay initiates a new research program in empirical legal interpretation. If ordinary meaning is relevant to legal interpretation, interpreters should look to evidence of how ordinary people actu­ally understand legal rules. We see our experiments as a first step in that new direction.

Publication Citation

Columbia Law Review, Vol. 122, Pp. 213-329.

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