Judging Ordinary Meaning
abstract. Judges generally begin their interpretive task by looking for the ordinary meaning of the language of the law. And they often end there—out of respect for the notice function of the law or deference to the presumed intent of the lawmaker.
Most everyone agrees on the primacy of the ordinary meaning rule. Yet scholars roundly bemoan the indeterminacy of the communicative content of the language of the law. And they pivot quickly to other grounds for interpretation.
We agree with the diagnosis of important scholars in this field—from Richard Fallon and Cass Sunstein to Will Baude and Stephen Sachs—but reject their proposed cures. Instead of setting aside the threshold question of ordinary meaning, we seek to take it seriously. We do so through theories and methods developed in the scholarly field designed for the study of language: linguistics.
We identify theoretical and operational deficiencies in our law’s attempts to credit the ordinary meaning of the law and present linguistic theories and tools to assess it more reliably. Our framework examines iconic problems of ordinary meaning—from the famous “no vehicles in the park” hypothetical to two Supreme Court cases (United States v. Muscarello and Taniguchi v. Kan Pacific Saipan, Ltd.) and a Seventh Circuit opinion by Judge Richard Posner (in United States v. Costello). We show that the law’s conception of ordinary meaning implicates empirical questions about language usage. And we present linguistic tools from a field known as corpus linguistics that can help to answer these empirical questions.
When we speak of ordinary meaning we are asking an empirical question—about the sense of a word or phrase that is most likely implicated in a given linguistic context. Linguists have developed computer-aided means of answering such questions. We propose to import those methods into the law’s methodology of statutory interpretation. And we consider and respond to criticisms of their use by lawyers and judges.
authors. Thomas R. Lee is Associate Chief Justice of the Utah Supreme Court and a Distinguished Lecturer of Law at Brigham Young University. Stephen C. Mouritsen is an Associate at the University of Chicago Law School and Adjunct Professor of Law and Corpus Linguistics at Brigham Young University. The authors express thanks to those who commented on earlier drafts or offered insights in response to presentations in various conferences, symposia, and talks, including Randy Barnett, Will Baude, Ryan Doerfler, Frank Easterbrook, Ed Finegan, Jonah Gelbach, Stefan Th. Gries, Dan Klerman, Kurt Lash, John Manning, John McGinnis, Noah Messing, Greg Murphy, Gordon Smith, Larry Solan, Larry Solum, Eugene Volokh, and John Yoo. Thanks also to Brigham Young University and to the Georgetown University Law Center for cosponsoring a conference on law and corpus linguistics, at which the ideas in this piece were initially vetted, and to the Olin-Searle-Smith Fellows in Law program for making possible Mr. Mouritsen’s association with the University of Chicago Law School. Special thanks to James C. Phillips for his editorial and research assistance at every stage of this project. Thanks also to John Cutler, Chauntel Lopez, Daniel Ortner, Bradley Pew, and Aaron Worthen for their research assistance.