Ordinary Meaning from Ordinary People

53 Pages Posted: 3 Jun 2020 Last revised: 31 Jan 2021

See all articles by Shlomo Klapper

Shlomo Klapper

United States Court of Appeals for the Second Circuit

Soren Schmidt

affiliation not provided to SSRN

Tor Tarantola

University of Cambridge - Department of Psychology; Cultural Cognition Project at Yale Law School

Date Written: February 3, 2020

Abstract

Ordinary meaning has an extraordinary impact. Across virtually every field of law, statutory interpretation battles of enormous consequence hinge on what judges perceive to be the “ordinary meaning” of law’s words and phrases—how an ordinary person would interpret a provision. In making that determination, judges across the ideological spectrum reach far and wide for sources of authority—invoking not only their own intuition, but insight from newspapers, literature, film, dictionaries, linguistic corpora, and even Dr. Seuss. It seems that everyone has been consulted in the search for ordinary meaning—everyone, that is, except for ordinary people.

This Article begins to remedy that oversight. We offer the first account of ordinary meaning grounded in its source: ordinary people. Drawing on a representative sample of the U.S. population (n = 903) through survey methods, we conduct two empirical studies. The first presents respondents with the law and facts from five canonical ordinary meaning cases and then asks them how they would interpret the provision in question. We find significant disparities between the judicial majority opinion in several landmark decisions and the views of ordinary people. The second study is an experiment: we show all respondents an identical legal text and factual scenario, but (randomly) vary the information they see about the law’s policy context. We observe that ordinary people are naturally purposivist, shifting their interpretation of unchanging text to fit the mischief that the law seems intended to cure.

Our findings call into question both the practice and theory of modern statutory interpretation. Judges apply ordinary meaning on the premise that it is the best way to preserve fair notice. But our results suggest that current methods consistently fail to align with the understanding of ordinary people. We argue that survey methods offer a way for litigants, judges, and scholars to significantly improve that alignment. More broadly, however, we challenge the modern consensus around strictly text-bound ordinary meaning interpretation. If ordinary people interpret the law purposively, as our findings demonstrate, then a more holistic approach to statutory interpretation may accomplish textualism’s own goals—democratic accountability and predictable decision making—better than textualism itself.

Keywords: Experimental Jurisprudence, Textualism, Interpretation, Purposivism, Surveys, Ordinary Meaning, Statutory Interpretation

Suggested Citation

Klapper, Shlomo and Schmidt, Soren and Tarantola, Tor, Ordinary Meaning from Ordinary People (February 3, 2020). Available at SSRN: https://ssrn.com/abstract=3593917 or http://dx.doi.org/10.2139/ssrn.3593917

Shlomo Klapper (Contact Author)

United States Court of Appeals for the Second Circuit ( email )

40 Foley Square
New York, NY 10007
United States

Soren Schmidt

affiliation not provided to SSRN

Tor Tarantola

University of Cambridge - Department of Psychology ( email )

Downing St.
Cambridge, CB2 3EB
United Kingdom

Cultural Cognition Project at Yale Law School ( email )

127 Wall St
New Haven, CT 06520
United States

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