Kevin Tobia,* Brian G. Slocum** & Victoria Nourse***
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 canons that lawmakers contemplate. A different answer, based on the “ordinary meaning” doctrine, looks to the outside: Follow the canons that guide an ordinary person’s understanding of the legal text. We offer a novel framework for empirically testing linguistic canons “from the outside,” recruiting 4,500 people from the United States and a sample of law students to evaluate hypothetical scenarios that correspond to each canon’s triggering conditions. The empirical findings provide evidence about which traditional canons “ordinary meaning” actually supports.
This Essay’s theory and empirical study carry several further implications. First, linguistic canons are not a closed set. We discovered possible new canons that are not yet reflected as legal canons, including a “nonbinary gender canon” and a “quantifier domain restriction canon.” Second, we suggest 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. Most broadly, we hope this 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.
The full text of this Essay can be found by clicking the PDF link to the left.
* Associate Professor of Law, Georgetown University Law Center.
** Distinguished Professor of Law, University of the Pacific, McGeorge School of Law.
*** Ralph V. Whitworth Professor of Law, Georgetown University Law Center. For helpful comments, we thank Bernard Black, Bill Buzbee, Erin Carroll, Josh Chafetz, Christoph Engel, Andreas Engert, William Eskridge, Ezra Friedman, Brian Galle, Neal Goldfarb, Hanjo Hamann, Joe Kimble, Anita Krishnakumar, Tom Lee, Daniel Rodriguez, Corrado Roversi, Sarath Sanga, Mike Seidman, Amy Semet, Josh Teitelbaum, Michele Ubertone, and audiences at the Free University of Berlin Empirical Legal Studies Center, the Max Planck Institute for Research on Collective Goods, Georgetown University Law Center, Northwestern University Law School, the University of Chicago Law School, and the University of Bologna. For outstanding editorial assistance, we thank Larisa Antonisse and the staff of the Columbia Law Review. This empirical research was funded by the Swiss National Science Foundation Spark Grant for “The Ordinary Meaning of Law,” CRSK-1_190713.
“American courts have no intelligible, generally accepted, and consistently applied theory of statutory interpretation.”
Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1169 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994).
This Hart and Sacks lament is frequently quoted but misleading.
See David S. Louk, The Audiences of Statutes, 105 Cornell L. Rev. 137, 150 (2019) (“A common trope in discussions of statutory interpretation theory is that American judges lack a principled method of interpreting statutes, something legal theorists and members of the judiciary alike have long recognized.”).
Despite extensive and ongoing debate about how to interpret statutes, most plausible theories share one common principle: a commitment to “ordinary meaning.”
See Brian G. Slocum, Ordinary Meaning: A Theory of the Most Fundamental Principle of Legal Interpretation 1–3 (2015) [hereinafter Slocum, Ordinary Meaning]; see also William N. Eskridge, Interpreting Law: A Primer on How to Read Statutes and the Constitution 33–41 (2016) [hereinafter Eskridge, Interpreting Law]; Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 33 (2012); Lawrence M. Solan, The Language of Statutes: Laws and Their Interpretation 53 (2010).
This Essay focuses on statutory interpretation, but its theory and empirical analysis may extend more broadly. “Ordinary meaning” plays a crucial role in interpreting most legal texts: from contracts and wills, to treaties and the U.S. Constitution.
See, e.g., Cal. Civ. Code § 1644 (2018) (“The words of a contract are to be understood in their ordinary and popular sense . . . .”); Cal. Prob. Code § 21122 (2018) (“The words of an instrument are to be given their ordinary and grammatical meaning unless the intention to use them in another sense is clear and their intended meaning can be ascertained.”); Curtis J. Mahoney, Note, Treaties as Contracts: Textualism, Contract Theory, and the Interpretation of Treaties, 116 Yale L.J. 824, 829–32 (2007) (describing the Supreme Court’s recent approach to treaty interpretation, which often focuses on the plain meaning of terms in a treaty); Lawrence B. Solum, The Constraint Principle: Original Meaning and Constitutional Practice 3 (Apr. 3, 2019), https://ssrn.com/abstract=2940215 [https://perma.cc/P7JR-9RDM] (unpublished manuscript) (“The dominant strain of con-
temporary originalism emphasizes the public meaning of the constitutional text . . . .”).
Normatively, the doctrine often finds justification for “ordinary” language principles based on notice, predictability, and the notion that the public should be able to read, understand, and rely upon legal texts.
See William N. Eskridge Jr., Brian G. Slocum & Stefan Th. Gries, The Meaning of Sex: Dynamic Words, Novel Applications, and Original Public Meaning, 119 Mich. L. Rev. 1503, 1516–17 (2021) [hereinafter Eskridge et al., The Meaning of Sex].
Increasingly, the Supreme Court has emphasized that the interpretive process begins by giving statutory language its ordinary meaning.
See, e.g., Bostock v. Clayton County, 140 S. Ct. 1731, 1738 (2020) (“This court normally interprets a statute in accord with the ordinary public meaning of its terms . . . .”); Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019) (“In statutory interpretation disputes, a court’s proper starting point lies in a careful examination of the ordinary meaning and structure of the law itself.”).
For some, interpretation begins and ends with ordinary meaning. Modern textualists believe that ordinary meaning should significantly constrain interpretation; other considerations enter only if ordinary meaning is indeterminate.
See, e.g., Victoria Nourse, Textualism 3.0: Statutory Interpretation After Justice Scalia, 70 Ala. L. Rev. 667, 669 (2019) (acknowledging but questioning the premise that ordinary meaning constrains as between results in a case).
Purposivists agree that ordinary meaning is at least relevant to interpretation,
See, e.g., Eskridge, Interpreting Law, supra note 3, at 35 (“There are excellent reasons for the primacy of the ordinary meaning rule.”).
alongside other criteria including legislative intent (typically ascertained via legislative history).
See Robert A. Katzmann, Judging Statutes 31–35 (2014) (explaining the purposivist approach to statutory interpretation).
Few deny that ordinary meaning is regularly deployed by all members of the current Supreme Court.
As Justice Elena Kagan famously declared of the Court, “We’re all textualists now.” Harvard Law School, The Scalia Lecture: A Dialogue with Justice Kagan on the Reading of Statutes, YouTube, at 08:29 (Nov. 25, 2015), https://youtu.be/dpEtszFT0Tg (on file with the Columbia Law Review). This statement depends upon an essential ambiguity: whether one begins or ends with the text.
Consider the Court’s recent landmark decision in Bostock v. Clayton County.
140 S. Ct. 1731.
The Justices divided sharply, but all the opinions—both the majority and two dissents—invoked “ordinary meaning” in determining whether the term “sex” in Title VII’s antidiscrimination provision includes sexual orientation and transgender discrimination.
Id. at 1750 (Gorsuch, J.) (“[T]he law’s ordinary meaning at the time of enactment usually governs . . . .”); id. at 1767 (Alito, J., dissenting) (“The ordinary meaning of discrimination because of ‘sex’ was discrimination because of a person’s biological sex, not sexual orientation or gender identity.”); id. at 1825 (Kavanaugh, J., dissenting) (“[C]ourts must follow ordinary meaning, not literal meaning.”).
Not surprisingly, cutting-edge statutory interpretation theory has turned its focus on “ordinary meaning.”
E.g., Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265 (2020); Anita S. Krishnakumar, MetaRules for Ordinary Meaning, 134 Harv. L. Rev. Forum 167 (2021) [hereinafter Krishnakumar, MetaRules]; Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 Yale L.J. 788 (2018); James A. Macleod, Finding Original Public Meaning, 56 Ga. L. Rev. (forthcoming 2021), https://ssrn.com/abstract=3729005 [https://perma.cc/8DCR-EFK6] [hereinafter Macleod, Finding Original Public Meaning]; Slocum, Ordinary Meaning, supra note 3; Lawrence M. Solan & Tammy Gales, Finding Ordinary Meaning in Law: The Judge, the Dictionary, or the Corpus?, 1 Int’l J. Legal Discourse 253 (2016); Kevin P. Tobia, Testing Ordinary Meaning, 134 Harv. L. Rev. 726 (2020) [hereinafter Tobia, Testing Ordinary Meaning]; Kevin Tobia & John Mikhail, Two Types of Empirical Textualism, 86 Brook. L. Rev. 461 (2021).
In fact, “ordinary meaning” is likely to grow in importance. Figure 1 reflects citations to “ordinary meaning,” “plain meaning,” and “legislative history” across six million U.S. cases in Harvard Law School’s Caselaw Access Project. Over the past fifty years, citation to “ordinary meaning” has tripled. By way of comparison, citation to “legislative history” has halved from its peak.
Figure 1. U.S. Case Law Citations to Ordinary Meaning, Plain Meaning, and Legislative History
. Caselaw Access Project, Harv. L. Sch. (2018) (retrieved Nov. 2, 2021).
These patterns provide a rough impression of interpretive trends. More robust empirical work supports the same conclusion, particularly in high-profile Supreme Court cases. A recent study of the Supreme Court’s use of interpretive tools found that between 2005 and 2017, the Roberts Court relied on “text” and “plain meaning” in 41% of all opinions and 50% of majority opinions.
Anita S. Krishnakumar, Cracking the Whole Code Rule, 96 N.Y.U. L. Rev. 76, 97 (2021).
The Court relied on text more than intent, purpose, or legislative history.
The Court has recently gained three new textualists, as lower federal courts welcome a new cohort of exceptionally young judges, similarly committed to textualism.
See John Gramlich, How Trump Compares With Other Recent Presidents in Appointing Federal Judges, Pew Rsch. Ctr. (Jan. 13, 2021), https://www.pewresearch.org/fact-tank/2021/01/13/how-trump-compares-with-other-recent-presidents-in-appointing-federal-judges/ [https://perma.cc/R7L9-4D8P]; Moiz Syed, Charting the Long-Term Impact of Trump’s Judicial Appointments, ProPublica (Oct. 30, 2020), https://projects.propublica.org/trump-young-judges/ [https://perma.cc/W3AX-YRR3] (explaining that President Trump appointed a record number of federal judges and that his appointees to the Supreme Court and appeals courts are younger than appointees by presidents going back to President Nixon by about four years on average); see also Jason Zengerle, How the Trump Administration Is Remaking the Courts, N.Y. Times Mag. (Aug. 22, 2018), https://www.nytimes.com/2018/08/22/magazine/trump-remaking-courts-judiciary.html (on file with the Columbia Law Review) (noting President Trump’s “commit[ment] to . . . nominating and appointing judges that are committed originalists and textualists” (internal quotation marks omitted) (quoting Donald McGahn, White House counsel to President Trump)).
So how do courts determine a statute’s “ordinary meaning”? Sometimes the debate centers on the meaning of individual terms,
See Victoria Nourse, Misreading Law, Misreading Democracy 18 (2016) [hereinafter Nourse, Misreading Law] (arguing that there are almost always two apparent meanings for key terms).
with judges increasingly relying on tools like dictionaries.
See, e.g., James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme Court’s Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev. 483, 493 (2013) (arguing that dictionaries have been “overused and abused by the Court”).
Dictionaries provide evidence about how individual terms are used in nonlegal communications.
Although dictionaries can provide general information about word meanings, the judicial practice of relying on dictionaries to define statutory terms is fraught with problems. See Ellen P. Aprill, The Law of the Word: Dictionary Shopping in the Supreme Court, 30 Ariz. St. L.J. 275, 297–30 (1998) (stating that the level of “linguistic analysis” performed by courts rarely rises above “dictionary shopping”).
But statutes contain complex expressions, with terms embedded in specific contexts.
See generally Peter M. Tiersma, Some Myths About Legal Language, 2 Law, Culture & Humanities 29 (2005) [hereinafter Tiersma, Myths] (explaining that the way legal texts are drafted adds to their complexity).
This complexity raises difficult questions about the relationship between the conventional meaning of a term and its context.
Often, contextual patterns are so frequently repeated that they are taken to trigger regular assumptions about “ordinary meaning.” Take the well-known case of McBoyle v. United States, which required the Court to determine whether an airplane is a “vehicle” under the National Motor Vehicle Theft Act.
283 U.S. 25, 25–26 (1931).
This Act punishes those who knowingly transport a stolen “automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails.”
Justice Oliver Wendell Holmes Jr., writing for the Court, found that the statute didnot apply to an aircraft: An airplane is not a vehicle.
See id. at 26.
If one focuses on the term “vehicle,” the Court’s conclusion might seem puzzling. Isn’t an airplane a vehicle?
Some have questioned whether the ordinary meaning of “vehicle” includes air-
planes. See Lee & Mouritsen, supra note 13, at 840. Nevertheless, even if some doubt exists, the specific context in McBoyle significantly bolstered the Court’s claim that an airplane was not a vehicle. See McBoyle, 283 U.S. at 26.
But any puzzlement lessens when we consider the ordinary meaning of “vehicle” incontext. The general words, “any other . . . vehicle,” come after a long list of more specific terms: automobile, automobile truck, automobile wagon, and motorcycle.
26McBoyle, 283 U.S. at 26.
Perhaps, based on this context, an ordinary reader would understand the statutory rule to be more specific: “Vehicle” refers to automobiles, motorcycles, and similar entities, like buses, that are designed for traveling on land. But vehicles of a very different nature (e.g., canoes or airplanes) are not “vehicles” in this context.
For Justice Brett Kavanaugh, even the question whether a baby stroller is a vehicle in this context may be difficult. See Bostock v. Clayton County, 140 S. Ct. 1731, 1825 (2020) (Kavanaugh, J., dissenting) (asserting that a “statutory ban on ‘vehicles in the park’ would literally encompass a baby stroller” but that “the word ‘vehicle,’ in its ordinary meaning, does not encompass baby strollers”).
“Vehicle” thus communicates something different when it is placed at the end of a list in a rule. The ejusdem generis canon captures this intuition: When general words follow an enumerated class of things, the general words should be construed to apply to things of the same general nature.
See Larry Alexander, Bad Beginnings, 145 U. Pa. L. Rev. 57, 65 (1996) (“When general words follow specific words in a statute, the general words are to be given a ‘sense analogous to that of the particular words.’” (quoting Scott Brewer, Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy, 109 Harv. L. Rev. 923, 937 (1996))); see also infra section I.C.
Thus, a statute referring just to “vehicles” may include airplanes as vehicles, but a statute that includes “vehicles” at the end of a list of specific examples might convey a different, narrower meaning.
Judges rely heavily on dozens of interpretive principles like ejusdem generis.
See William N. Eskridge, Jr., Philip P. Frickey, Elizabeth Garrett & James J. Brudney, Cases and Materials on Legislation and Regulation: Statutes and the Creation of Public Policy 1195–215 (5th ed. 2014) [hereinafter Eskridge et al., Cases and Materials 2014] (identifying at least 161 different interpretive canons).
These principles are so long standing and frequently applied that they are referred to as “canons” of interpretation.
See id. at 1195.
In fact, judges cite interpretive canons more frequently now than in the past.
See Anita S. Krishnakumar & Victoria F. Nourse, The Canon Wars, 97 Tex. L. Rev. 163, 167 (2018) (arguing that recent Supreme Court cases have focused extensively on the canons of construction); Nina A. Mendelson, Change, Creation, and Unpredictability in Statutory Interpretation: Interpretive Canon Use in the Roberts Court’s First Decade, 117 Mich. L. Rev. 71, 73 (2018) (“The lion’s share of Roberts Court majority opinions engages at least one interpretive canon in resolving a question of statutory meaning.”).
Yet, some courts and commentators also criticize canons as unjustified.
See, e.g., Jesse M. Cross, When Courts Should Ignore Statutory Text, 26 Geo. Mason L. Rev. 453, 459–60 (2018) (arguing that many canons of construction must be modified or discarded because they are inaccurate).
Debates about canons’ justification center on two very different empirical questions. One concerns whether legislative authors contemplate the canon when drafting.
See, e.g., Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 906–07 (2013) [hereinafter Gluck & Bressman, Statutory Interpretation Part I] (surveying congressional staff and finding that many either ignore or reject certain canons).
The other concerns whether the canon reflects how ordinary people reading the statute would understand the language.
Cf. William N. Eskridge Jr. & Victoria F. Nourse, Textual Gerrymandering: The Eclipse of Republican Government in an Era of Statutory Populism, N.Y.U. L. Rev. (forthcoming 2021) (manuscript at 4), https://ssrn.com/abstract=3809925 [https://perma.cc/SE3M-CGP4] (noting some scholars’ concern that canons may be manipulated to “create an arbitrary façade of plain meaning”). These explanations of the justifications are slightly oversimplified. In each case, it is possible that a canon might be justified even if the authors or audience could not themselves name the canon. For example, even if legislative drafters are unfamiliar with the term “ejusdem generis,” it might be that applying the rule nevertheless helpfully captures features of intended meaning. Similarly, most non-lawyers would be unfamiliar with the term “ejusdem generis.” But it might be that the rule nevertheless helps explain how ordinary people understand statutory language. In each case, the key empirical question is about whether applying the canon brings interpreters closer to meaning—intended or ordinary.
William Eskridge and Victoria Nourse have described these justifications as grounded in the “production” versus the “consumer” economies of statutory interpretation.
See id. at 2.
The production economy emphasizes the statute’s authors; the consumer economy emphasizes its readers.
The empirical claim that canons reflect the meanings of the statute’s producers or authors motivated Abbe Gluck and Lisa Bressman’s seminal work: Statutory Interpretation from the Inside.
Gluck & Bressman, Statutory Interpretation Part I, supra note 33, at 905.
In 2013, Gluck and Bressman published a survey of 137 congressional staffers from both chambers of Congress on topics relating to statutory interpretation, including the staffers’ knowledge and use of interpretive canons.
See Lisa Schultz Bressman & Abbe R. Gluck, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. 725, 728 (2014) [hereinafter Bressman & Gluck, Statutory Interpretation Part II]; Gluck & Bressman, Statutory Interpretation Part I, supra note 33, at 905–06. Judges have cited the Gluck and Bressman studies for the proposition that canons should not be used in interpretation since they are not deployed by drafters. See, e.g., James v. Heinrich, 960 N.W.2d. 350, 380 (Wis. 2021) (Dallett, J., dissenting). Our study focuses on a different population, ordinary readers, and suggests that ordinary readers understand law consistently with many (but not all) linguistic canons.
The survey, designed to explore the role the realities of legislative drafting should play in the theories and doctrines of statutory interpretation, revealed that there are some canons the drafters know and use, some the drafters reject in favor of other considerations, and some the drafters do not know as rules but that seem to accurately reflect how Congress drafts.
See Bressman & Gluck, Statutory Interpretation Part II, supra note 38, at 732–33. In 2002, Victoria Nourse and Jane Schacter published the first case study of legislative drafting by Senate Judiciary Committee staffers, assuming that, of all congressional staffers, these were the “most likely to be schooled in the rules of clarity, canons of construction, and statutory interpretation.” Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 582 (2002). The authors found that canons were not a “central part” of the drafting process. Id. at 614. As one staffer explained, “[W]e are conscious of . . . what a court will do, but not at the level of expressio unius.” Id. at 601. In future work, we hope to ask congressional staffers the same questions we have posed to ordinary readers in this study.
Critics of Gluck and Bressman, however, maintain that “insiders’” views on canons are not the relevant measure; such studies simply seek to unearth an unfathomable congressional mind.
John F. Manning, Without the Pretense of Legislative Intent, 130 Harv. L. Rev. 2397, 2430–31 (2017); see also Amy Coney Barrett, Congressional Insiders and Outsiders, 84 U. Chi. L. Rev. 2193, 2200–01 (2017) (arguing that Gluck and Bressman take the position of the “hypothetical insider who knows how Congress works” whereas the textualist insists that the “relevant user of language be ordinary”); John F. Manning, Inside Congress’s Mind, 115 Colum. L. Rev. 1911, 1941 (2015) [hereinafter Manning, Inside Congress’s Mind] (arguing that the Gluck and Bressman studies support skepticism about looking for answers in Congress’s mind).
Rather than focus on the producers of statutes, they urge focus on the consumers of statutes, the ordinary reader. As Justice Samuel Alito just urged in the 2020–2021 Term, canons are only useful if they reflect ordinary meaning.
See Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1175 (2021) (Alito, J., concurring). For the theoretical importance of ordinary meaning, see Slocum, Ordinary Meaning, supra note 3, at 1–3.
That is, a canon’s validity comes from ordinary people’s linguistic practices. The key question would be: Is the canon a guide to how ordinary people would understand the language in the statute? For example, when considering the statute at issue in McBoyle, would an ordinary person implicitly understand that the scope of “any other . . . vehicle” is partly restricted—meaning not literally any vehicle but only those sufficiently similar to the enumerated ones? If yes, this would support an empirically based justification for ejusdem generis, grounded not in legislative intent or practice but in ordinary meaning.
It would also suggest that “any vehicle” does not always mean literally any vehicle. We propose a new ordinary meaning canon, the “quantifier domain restriction canon,” that reflects this possibility. See infra section I.C.
The Supreme Court increasingly relies on text and ordinary meaning to resolve interpretive disputes, as do lower courts.
See supra notes 6–17 and accompanying text (noting courts’ increasing reliance on text and ordinary meaning).
This calls for a complement to Gluck and Bressman’s groundbreaking empirical work, namely a new analysis of statutory interpretation from the outside. Recently, Chief Justice John Roberts alluded to this intriguing possibility in oral argument:
[If] our objective is to settle upon the most natural meaning of the statutory language to an ordinary speaker of English . . . the most probably useful way of settling all these questions would be to take a poll of 100 ordinary . . . speakers of English and ask them what [the statute] means, right?
Transcript of Oral Argument at 51–52, Facebook, Inc., 141 S. Ct. 1163 (No. 19-511), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/19-511_l537.pdf [https://perma.cc/XEP7-QBE5].
Such an approach was once considered beyond legal academics’ capacity,
See Adrian Vermeule, Interpretation, Empiricism, and the Closure Problem, 66 U. Chi. L. Rev. 698, 701 (1999) (“Many of the empirical questions relevant to the choice of interpretive doctrines are . . . unanswerable, at least at an acceptable level of cost or within a useful period of time.”).
but no more. There is a rich and growing literature in psychology, linguistics, and cognitive science concerning people’s understanding of language.
See, e.g., Dirk Geeraerts, Theories of Lexical Semantics 230 (2010) (“[N]ew word senses emerge in the context of actual language use.”).
In law, the new field of “experimental jurisprudence” has already demonstrated that scholars can conduct experiments to better understand the ordinary cognition of law.
The field builds on work in experimental philosophy. See, e.g., Joshua Knobe & Shaun Nichols, An Experimental Philosophy Manifesto, in Experimental Philosophy 3 (Joshua Knobe & Shaun Nichols eds., 2008); Stephen Stich & Kevin P. Tobia, Experimental Philosophy and the Philosophical Tradition, in A Companion to Experimental Philosophy 5 (Justin Sytsma & Wesley Buckwalter eds., 2016). For an empirical study assessing the replicability of experimental philosophy studies, see Florian Cova, Brent Strickland, Angela Abatista, Aurélien Allard, James Andow, Mario Attie, James Beebe, Renatas Berniūnas, Jordane Boudesseul, Matteo Colombo, Fiery Cushman, Rodrigo Diaz, Noah N’Djaye, Nikolai van Dongen, Vilius Dranseika, Brian D. Earp, Antonio Gaitán Torres, Ivar Hannikainen, José V. Hernández-Conde, Wenjia Hu, François Jaquet, Kareem Khalifa, Hanna Kim, Markus Kneer, Joshua Knobe, Miklos Kurthy, Anthony Lantian, Shen-yi Liao, Edouard Machery, Tania Moerenhout, Christian Mott, Mark Phelan, Jonathan Phillips, Navin Rambharose, Kevin Reuter, Felipe Romero, Paulo Sousa, Jan Sprenger, Emile Thalabard, Kevin Tobia, Hugo Viciana, Daniel Wilkenfeld & Xiang Zhou, Estimating the Reproducibility of Experimental Philosophy, 12 Rev. Phil. & Psych. 9 (2021). See generally The Cambridge Handbook of Experimental Jurisprudence (Kevin Tobia ed., forthcoming).
Thus far, those studies have focused on central legal concepts, such as causation,
See Joshua Knobe & Scott Shapiro, Proximate Cause Explained: An Essay in Experimental Jurisprudence, 88 U. Chi. L. Rev. 165 (2021); James A. Macleod, Ordinary Causation: A Study in Experimental Statutory Interpretation, 94 Ind. L.J. 957 (2019).
See Roseanna Sommers, Commonsense Consent, 129 Yale L.J. 2232 (2020).
See Markus Kneer & Sacha Bourgeois-Gironde, Mens Rea Ascription, Expertise and Outcome Effects: Professional Judges Surveyed, 169 Cognition 139 (2017); Sydney Levine, John Mikhail & Alan M. Leslie, Presumed Innocent? How Tacit Assumptions of Intentional Structure Shape Moral Judgment, 147 J. Experimental Psych.: Gen. 1728 (2018).
See Christopher Brett Jaeger, The Empirical Reasonable Person, 72 Ala. L. Rev. 887 (2021); Kevin P. Tobia, How People Judge What Is Reasonable, 70 Ala. L. Rev. 293 (2018) [hereinafter Tobia, How People Judge What Is Reasonable].
E.g., Brian Flanagan & Ivar R. Hannikainen, The Folk Concept of Law: Law Is Intrinsically Moral, Australasian J. Phil. (2020); Ivar R. Hannikainen, Kevin P. Tobia, Guilherme da F. C. F. de Almeida, Raff Donelson, Vilius Dranseika, Markus Kneer, Niek Strohmaier, Piotr Bystranowski, Kristina Dolinina, Bartosz Janik, Sothie Keo, Eglė Lauraitytė, Alice Liefgreen, Maciej Próchnicki, Alejandro Rosas & Noel Struchiner, Are There Cross-Cultural Legal Principles? Modal Reasoning Uncovers Procedural Constraints on Law, Cognitive Sci., Aug. 2021, at 1.
and many others.
Kevin P. Tobia, Law and the Cognitive Science of Ordinary Concepts, in Law and Mind: A Survey of Law and the Cognitive Sciences 86 (2021) (examining the relationship between folk psychology (laypeople’s commonsense understandings) and the law); Kevin P. Tobia, Experimental Jurisprudence, 89 U. Chi. L. Rev. (forthcoming 2022), https://ssrn.com/abstract=3680107 [https://perma.cc/XJW9-SYJV] [hereinafter Tobia, Experimental Jurisprudence] (debunking myths about experimental jurisprudence and arguing that it is a form of traditional jurisprudence rather than a social scientific replacement of jurisprudence).
Other studies have focused on how ordinary people understand word meanings or how they would resolve specific interpretive disputes.
See, e.g., Omri Ben-Shahar & Lior Jacob Strahilevitz, Interpreting Contracts via Surveys and Experiments, 92 N.Y.U. L. Rev. 1753, 1765 (2017); Shlomo Klapper, Soren Schmidt & Tor Tarantola, Ordinary Meaning From Ordinary People (unpublished manuscript) (on file with the Columbia Law Review).
But, as the McBoyle case suggests, the ordinary meaning of statutes does not arise solely from individual word meanings, and commonly occurring types of context and inferences are also important topics of study. Statutes are written in sentences, which must be interpreted in light of relevant context in order to understand the rules expressed. An important legal-interpretive question concerns how ordinary people tend to understand this kind of language.
This Essay takes a first step in this new direction: the empirical study of interpretive canons from an ordinary meaning perspective. Surveying ordinary people might seem straightforward, but designing useful experiments requires very careful theory. In Part I, we develop a framework for empirically testing interpretive canons. We describe the three relevant elements of interpretive canons (triggering, application, and cancellation) and explain that the triggering element is our focus. A canon’s “trigger” is the linguistic condition making the canon applicable, such as a comma or a certain word or type of phrase.
See infra section I.A.
This focus, we argue, is necessary to determine whether ordinary people implicitly apply an interpretive canon in accordance with its definition. In addition, focusing on canon triggers has the potential to help resolve longstanding interpretive problems that have plagued courts, such as poorly defined canons and conflicts between canons.
In Parts II and III, we implement our framework through a survey of 4,500 demographically representative people recruited from the United States, as well as a sample of over one-hundred first-year U.S. law students. The survey tested over a dozen interpretive canons.
The canons tested include what we term “Category One” canons, which have relatively straightforward triggering conditions, as well as “Category Two” canons, which have more complex triggering conditions. For a list of the canons and their definitions, see infra Part II.
Our study provides crucial evidence for textualists and others committed to ordinary meaning. Currently, judges and scholars assume that certain canons reflect ordinary meaning on the basis of intuition or tradition. The survey directly addresses this fundamental empirical question about ordinary meaning: Which (if any) of the interpretive canons actually reflect how ordinary people understand language?
The survey posed hypothetical scenarios, corresponding to each canon’s triggering conditions, to determine whether ordinary people implicitly invoke the canons when interpreting both legal and nonlegal rules. To preview our findings: Many existing interpretive canons reflect how ordinary people understand rules, but some popular canons do not. For instance, ordinary people interpret rules in ways that correspond with various longstanding canons such as ejusdem generis and noscitur a sociis but not in accordance with the popular but frequently criticized canon expressio unius est exclusioalterius. In addition, ordinary people implicitly resolve the conflict between the series-qualifier canon and the rule of the last antecedent by interpreting modifiers consistently with the series-qualifier canon.
Part IV considers three broader implications of our work for statutory interpretation theory. First, the results support a new approach toward “ordinary meaning” itself. There is great debate concerning whether that doctrine refers to the ordinary meaning of (1) “legal language” or (2) “ordinary language.” We find that people intuitively apply canons across both legal and ordinary rules. That is, surprisingly little turns on whether people understand language as ordinary or legal, so long as it is language in a rule. We suggest that the legal/ordinary language dichotomy obscures a more fundamental aspect of the ordinary meaning doctrine: It is a doctrine about ordinary understanding of language in rules. The canons do not necessarily apply wherever there is “ordinary language” or “legal language”; rather, they apply to interpretation of rules. A judge who fails to appreciate the significance of “rule-like” contextual features may misinterpret ordinary meaning from “the outside.” For example, dictionary definitions that are not based on rule-like contexts may not reflect the understanding of “ordinary readers.”
Second, we argue that our results suggest the importance of anti-literalism in assessing ordinary meaning. Our study reveals that ordinary people often interpret rules nonliterally. This bears on recent debates at the heart of textualist theory.
See infra section IV.B.1 (discussing literal interpretations).
Our findings support rejecting ordinary meaning as being synonymous with literal meaning. Specifically, several of the canons implicitly applied by ordinary people result in nonliteral meanings.
See infra section IV.B.2 (discussing examples including gender canons, number canons, ejusdem generis, and noscitur a sociis).
Perhaps most importantly, such a commitment to nonliteralism challenges modern textualist practices and may have the salutary effect of decreasing judicial reliance on dictionary definitions and increasing judicial sensitivity to context.
Third, we argue that interpretive canons should be understood as an open set, despite conventional assumptions that the traditional canons capture all relevant language generalizations. Our study provides evidence in support of two new ordinary meaning canons—ones not traditionally recognized by law, but that can be justified on the basis of ordinary meaning. One we term the “nonbinary gender canon.”
This canon holds that masculine and plural pronouns like “he/his” and “they” also include the feminine (e.g., “her”) and nonbinary (e.g., “they”). See infra section II.B.1.
The other we term the “quantifier domain restriction canon.”
This canon holds that the scope of quantifiers (e.g., “any”) is typically implicitly restricted by context, which is a linguistic fact the Supreme Court has long struggled to recognize. See infra section II.C.4.
Courts committed to ordinary meaning have no less reason to rely on newly discovered canons than traditional ones assumed to reflect ordinary meaning. More broadly, this theory of ordinary meaning canons as an “open set” invites empirical discovery of new language canons, allowing a much more dynamic statutory interpretation based on linguistic dynamism. This dynamism is not only consistent with textualists’ ordinary meaning commitments; it is justified by them.
See infra section IV.C.
We conclude by arguing for a new empirical research agenda in law and language. This project is ambitious and forward-looking, testing fundamental empirical assumptions underpinning interpretive canons, discovering entirely new canons, reconceptualizing the ordinary meaning doctrine as one concerned with rules, proposing an anti-literalist view of some interpretive canons, and articulating a program for future research. We see our study as a first step in this new direction. We hope future studies uncover further evidence about the triggering conditions of certain canons, discover additional “hidden” ordinary meaning canons, and test how canons are cancelled or whether they are applied consistently.