Ordinary Meaning from Ordinary People

Abstract

Ordinary meaning has an extraordinary impact. Across virtually every field of law, statutory-interpretation battles of enormous consequence hinge on what judges perceive to be the “ordinary meaning” of a law’s words and phrases—how an ordinary person would interpret a provision. In making that determination, judges across the ideological spectrum reach far and wide for sources of authority—invoking not only their own intuitions, but insight from newspapers, literature, film, dictionaries, linguistic corpora, and even Dr. Seuss. It seems that everyone has been consulted in the search for ordinary meaning—everyone, that is, except for ordinary people. This Article begins to remedy that oversight. We offer the first account of ordinary meaning grounded in its source: ordinary people. Drawing on a representative sample of the U.S. population (n = 903) through survey methods, we conduct two empirical studies. The first presents respondents with the law and facts from five canonical ordinary-meaning cases and then asks how they would interpret the provision in question. We find significant disparities between the judicial majority opinion in several landmark decisions and the views of ordinary people. The second study is an experiment: we show all respondents an identical legal text and factual scenario, but (randomly) vary the information they see about the law’s policy context. We observe that ordinary people are naturally purposivist, shifting their interpretation of unchanging text to fit the mischief that the law seems intended to cure. Our findings call into question both the practice and theory of modern statutory interpretation. Judges apply ordinary meaning on the premise that it is the best way to preserve fair notice. But our results suggest that current methods consistently fail to align with the understanding of ordinary people. We argue that survey methods offer a way for litigants, judges, and scholars to significantly improve that alignment. More broadly, however, we challenge the modern consensus around ordinary-meaning interpretation. In light of our findings, we believe ordinary meaning-based Textualism faces a choice of keeping either its methods or its justifications; one or the other must be modified. We offer two paths forward. First, interpreters could maintain textualist methods but simply back away from fair-notice justifications for their methods and instead embrace a rationale grounded in specialized, legal meaning. Alternatively, if ordinary people interpret the law purposively, as our findings demonstrate, interpreters could maintain fair notice as a goal but adopt more holistic interpretive methods; incorporating traditionally purposivist considerations may accomplish textualism’s current purported goals better than textualism itself.