Statutory Interpretation from the Outside

84 Pages Posted: 5 Apr 2021 Last revised: 1 Mar 2022

See all articles by Kevin Tobia

Kevin Tobia

Georgetown University Law Center; Georgetown University - Department of Philosophy

Brian G. Slocum

University of the Pacific - McGeorge School of Law

Victoria Nourse

Georgetown University Law Center

Date Written: January 1, 2022

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 rules that lawmakers contemplate. A different answer, based on the “ordinary meaning” doctrine, looks to the outside: Follow the rules that would guide an ordinary person’s understanding of the legal text. Empirical scholars have studied statutory interpretation from the inside—revealing what rules drafters follow—but never from the outside. We offer a novel framework for empirically testing interpretive canons “from the outside,” recruiting 4,500 people from the United States, as well as a sample of U.S. law students, to evaluate hypothetical scenarios that correspond to each canon’s triggering conditions.

The empirical findings provide crucial evidence about which traditional canons “ordinary meaning” actually supports, and they carry several further implications. First, interpretive canons are not a closed set. We discovered new canons that are not yet reflected as legal canons, including one we term the “non-binary gender canon” and another the “quantifier domain restriction canon.” Second, the results support 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, as well as offering a theme for researching other currently unrecognized canons. Most broadly, we hope the 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.

Keywords: ordinary meaning, legislation, statutory interpretation, experimental jurisprudence, textualism

Suggested Citation

Tobia, Kevin and Slocum, Brian G. and Nourse, Victoria, Statutory Interpretation from the Outside (January 1, 2022). 122 Columbia Law Review 213 (2022), Available at SSRN: https://ssrn.com/abstract=3786090 or http://dx.doi.org/10.2139/ssrn.3786090

Kevin Tobia (Contact Author)

Georgetown University Law Center ( email )

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HOME PAGE: http://www.law.georgetown.edu/faculty/kevin-tobia/

Georgetown University - Department of Philosophy

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Brian G. Slocum

University of the Pacific - McGeorge School of Law ( email )

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Sacramento, CA 95817
United States
(916) 739-7013 (Phone)

Victoria Nourse

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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