Statutory Interpretation from the Outside

67 Pages Posted: Last revised: 5 Apr 2021

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: February 15, 2021

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. This Article is the first empirical study of ordinary meaning as determined by ordinary people.

We first offer a novel framework for empirically testing interpretive canons. We argue that any empirical inquiry should test whether ordinary people implicitly invoke a canon in accordance with the circumstances that trigger its applicability. Implementing our framework, we recruited 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 results reveal that many existing interpretive canons reflect how ordinary people evaluate rules, but some popular canons do not.

The empirical findings support several implications, even beyond providing crucial evidence about which traditional canons “ordinary meaning” actually supports. 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. Furthermore, ordinary people interpret rules with an intuitive anti-literalism. This finding in particular challenges textualist assumptions about ordinary meaning.

We hope the Article 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 (February 15, 2021). Columbia Law Review, Forthcoming, 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 )

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

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

Georgetown University - Department of Philosophy

37th and O Streets, N.W.
Washington, DC 20007
United States

Brian G. Slocum

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

3200 Fifth Avenue
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

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
223
Abstract Views
625
rank
163,528
PlumX Metrics