Two Types of Empirical Textualism

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See all articles by Kevin Tobia

Kevin Tobia

Georgetown University Law Center; Georgetown University - Department of Philosophy

John Mikhail

Georgetown University Law Center

Date Written: November 12, 2020

Abstract

Modern textualist and originalist theories increasingly center interpretation around the “ordinary” or “public” meaning of legal texts. This approach is premised on the promotion of values like publicity, fair notice, and democratic legitimacy. As such, ordinary meaning is typically understood as a question about how members of the general public understand the text—an empirical question with an “objective” answer. This Essay explores the role of empirical methods, particularly experimental survey methods, in these ordinary meaning inquiries. The Essay expresses cautious optimism about new insight that empirical methods can bring, but it also warns against assuming that these methods will deliver uncontroversial, objective solutions in legal interpretation.

As a concrete illustration, the Essay analyzes the main statutory question presented in Bostock v. Clayton County (2020). Both Justice Gorsuch’s majority opinion and the dissents by Justices Alito and Kavanaugh offer avowedly textualist analyses of Title VII’s “ordinary meaning,” yet their reasoning and conclusions diverge. To help explain these differences, the Essay proposes a distinction between two types of empirical textualism, which we call the “ordinary criteria” and “legal criteria” versions. The former conceptualizes ordinary meaning as closely connected to empirical facts about how ordinary people understand statutory language; in effect, it equates ordinary meaning with ordinary understanding. The latter conceptualizes ordinary meaning differently, combining the common understanding of statutory terms with both their previously-established legal meanings and their legal entailments. Bostock exemplifies the difference between these approaches, with Justices Alito and Kavanaugh relying on the former and Justice Gorsuch on the latter. The Essay also presents a new experimental study of the key linguistic dispute in Bostock—public judgments about discrimination “because of” sex—that illustrates differences between these two approaches to empirical textualism.

Keywords: textualism, originalism, Bostock, statutory interpretation, legal interpretation, experimental jurisprudence

Suggested Citation

Tobia, Kevin and Mikhail, John, Two Types of Empirical Textualism (November 12, 2020). Brooklyn Law Review , Forthcoming, Available at SSRN: https://ssrn.com/abstract=

Kevin Tobia (Contact Author)

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Georgetown University - Department of Philosophy

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John Mikhail

Georgetown University Law Center ( email )

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United States
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