Triangulating Ordinary Meaning

Abstract

Textualism claims to pave a clear path to the determinate “ordinary meaning” of statutory language. But textualist Justices disagree about the ordinary meaning of particular statutes. This essay proposes a new way forward: triangulating ordinary meaning with multiple empirical methods. Specifically, textualists who seek ordinary meaning should in some circumstances consider the possibility of complementing (i) traditional tools–like dictionaries, linguistic canons, and intuition–with newly available data from (ii) corpus linguistics and (iii) survey experiments. As a case study, we consider Pulsifer v. United States, concerning interpretation of the First Step Act. The Supreme Court will soon decide Pulsifer, a decision that likely turns on the Court’s conclusion about ordinary meaning. We present original corpus linguistic and experimental survey studies that bear on this issue. The essay’s conclusions have concrete implications for Pulsifer, a case which could impact the sentences of thousands of drug defendants. This proof of concept also has broader implications for statutory interpretation theory.

Keywords: textualism, interpretation, ordinary meaning, Supreme Court, corpus linguistics, legal interpretation