Ordinary Meaning and Ordinary People

114 Pages Posted: 4 Mar 2022 Last revised: 11 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: February 1, 2022

Abstract

Perhaps the most fundamental principle of legal interpretation is the presumption that terms should be given their “ordinary” (i.e., general, non-technical) meanings. This principle is a central tenet of modern textualism. Textualists believe a universal presumption of ordinary meaning follows from their theory’s core commitment: A law should be interpreted consistently with what its text communicates to the ordinary public. This Article begins from this textualist premise, empirically examining what legal texts communicate to the public. Five original empirical studies (N = 4,365) reveal a surprising finding: Ordinary people consider genre carefully and regularly take terms in law to communicate technical legal meanings, not ordinary ones.

This discovery carries implications for legal interpretation’s theory and practice. Modern textualists—especially at the Supreme Court—justify their theory through “democratic,” fair notice, and rule-of-law appeals to ordinary people. But the empirical studies reveal that fidelity to ordinary people does not imply an unwavering commitment to ordinary meaning. Instead, it requires interpreters to also look to technical meanings. On a practical level, the results support a new presumption of legal meaning and ground a new challenge to textualism’s claim to promote fair notice. As a case study, we consider Bostock v. Clayton County, Georgia, which held that both sexual orientation and gender identity discrimination are prohibited forms of sex discrimination. The Article’s empirics and theory offer a new justification of the Court’s landmark decision.

Keywords: legal interpretation, textualism, ordinary meaning, experimental jurisprudence

Suggested Citation

Tobia, Kevin and Slocum, Brian G. and Nourse, Victoria, Ordinary Meaning and Ordinary People (February 1, 2022). University of Pennsylvania Law Review, Vol. 171, 2023, Available at SSRN: https://ssrn.com/abstract=4034992 or http://dx.doi.org/10.2139/ssrn.4034992

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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