The Interpretation of Law

64 Pages Posted: 19 Aug 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

Date Written: August 10, 2022

Abstract

Courts increasingly presume that law should be interpreted according to what it communicates to an ordinary reader. Textualists view this as a strict requirement, creating a bright line between favored “textual” interpretive canons (reflecting objective linguistic principles) and suspect “substantive” canons (reflecting subjective normative values). This Article defends a novel thesis about this bright line. We argue that some substantive canons are also textual canons. This Article presents the first empirical study of whether ordinary people (N = 1,520) implicitly follow some substantive canons when interpreting legal rules. The study finds that some substantive canons track valid linguistic generalizations about how ordinary people understand rules’ meaning. For example, the presumption against retroactive application of statutes is usually justified by values like fairness, but it also reflects ordinary readers’ general understanding of the meaning of rules.

This empirically supported theory carries significant practical and theoretical implications, especially for textualists. For example, it offers a novel resolution to long-standing conflict between the famous Chevron doctrine and substantive canons. It also grounds a new critique of textualists’ reliance on non-linguistic canons. More broadly, the results support a call for a linguistic reorientation in legal interpretation. Laws’ words express rules, and text-committed interpreters should carefully consider how ordinary people understand rules, beyond the meanings of individual words or general communications. The “ordinary reader” is assumed to be interpreting law, and judicial interpretation committed to that reader should similarly reflect the interpretation of law.

Keywords: textualism, interpretation, ordinary meaning, canons, Supreme Court

Suggested Citation

Tobia, Kevin and Slocum, Brian G., The Interpretation of Law (August 10, 2022). Available at SSRN: https://ssrn.com/abstract=4186956 or http://dx.doi.org/10.2139/ssrn.4186956

Kevin Tobia (Contact Author)

Georgetown University Law Center ( email )

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Washington, DC 20001
United States

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

Georgetown University - Department of Philosophy

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Washington, DC 20007
United States

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)

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