Judging Ordinary Meaning

78 Pages Posted: 21 Mar 2017 Last revised: 31 Mar 2017

Thomas R. Lee

Utah Supreme Court; Brigham Young University Law School

Stephen C. Mouritsen

University of Chicago - Law School; Brigham Young University - J. Reuben Clark Law School

Date Written: March 19, 2017

Abstract

Judges generally begin their interpretive task by looking for the ordinary meaning of the language of the law. And they often end there — out of respect for the notice function of the law or deference to the presumed intent of the lawmaker.

Most everyone agrees on the primacy of the ordinary meaning rule. Yet scholars roundly bemoan the indeterminacy of the communicative content of the language of the law. And they pivot quickly to other grounds for interpretation.

We agree with the diagnosis of important scholars in this field — from Richard Fallon and Cass Sunstein to Will Baude and Steve Sachs — but reject their proposed cures. Instead of setting aside the threshold question of ordinary meaning we seek to take it seriously. We seek to do so through theories and methods developed in the scholarly field designed for the study of language — linguistics.

We identify theoretical and operational deficiencies in our law’s attempts to credit the ordinary meaning of the law and present linguistic theories and tools to assess it more reliably. Our framework examines iconic problems of ordinary meaning — from the famous “no vehicles in the park” hypothetical to two Supreme Court cases (United States v. Muscarello and Taniguchi v. Kan Pacific Saipan) and a Seventh Circuit opinion of Judge Richard Posner (in United States v. Costello). We show that the law’s conception of ordinary meaning implicates empirical questions about language usage. And we present linguistic tools from a field known as corpus linguistics that can help to answer these empirical questions.

When we speak of ordinary meaning we are asking an empirical question — about the sense of a word or phrase that is most likely implicated in a given linguistic context. Linguists have developed computer-aided means of answering such questions. We propose to import those methods into the law of interpretation. And we consider and respond to criticisms of their use by lawyers and judges.

Keywords: interpretation, statutory interpretation, corpus linguistics, law and linguistics

Suggested Citation

Lee, Thomas R. and Mouritsen, Stephen C., Judging Ordinary Meaning (March 19, 2017). Yale Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2937468 or http://dx.doi.org/10.2139/ssrn.2937468

Thomas R. Lee (Contact Author)

Utah Supreme Court ( email )

450 South State Street
Salt Lake City, UT 84114
United States

Brigham Young University Law School ( email )

519 JRCB
Brigham Young University
Provo, UT 84602
United States

Stephen C. Mouritsen

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

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