Response or Comment
Harvard Law Review Forum
“Ordinary meaning” is a notoriously undefined concept in statutory interpretation theory. Courts and scholars sometimes describe ordinary meaning as the meaning that a “reasonable reader” would ascribe to the statutory language at issue, but it remains unclear how judges and lawyers should go about identifying such meaning. Over the past few decades, as textualism has come to dominate statutory interpretation, courts increasingly have employed dictionary definitions as (purportedly) neutral, and sometimes dispositive, evidence of ordinary meaning. And in the past few years especially, some judges and scholars have advocated using corpus linguistics — patterns of usage across various English language sources — as an objective guide to the ordinary meaning of statutory words and phrases. Professor Kevin Tobia’s illuminating article Testing Ordinary Meaning seeks to test empirically how accurately these two interpretive aids — dictionary definitions and corpus linguistics — reflect ordinary meaning.
To do so, Tobia uses a series of experimental studies based on surveys of laypeople gathered through Amazon’s Mechanical Turk, as well as surveys of federal and state judges and law students at Harvard, Yale, and Columbia. The study uses as a baseline for “ordinary meaning” the unaided collective intuitions of laypeople, federal judges, and law students — and compares those unaided intuitions to the meaning these three groups of interpreters selected when asked to apply dictionary definitions or corpus linguistics to the same set of terms. Tobia’s experiment constitutes an admirable effort to dissect the concept of ordinary meaning, and one that yields important information and results. In my view, there are three key takeaways from his study: (1) judges and nonexperts assess meaning similarly; (2) ordinary meaning is often unclear; and (3) dictionaries and corpus linguistics provide meanings that diverge from each other and from ordinary meaning, with dictionaries tending to reflect expansive, or “legalist,” word meaning and corpus linguistics tending to reflect “prototypical” meaning.
I agree with many of the conclusions drawn by Tobia’s thoughtful article. This Response will focus primarily on a few points of disagreement as well as on some methodological lessons that might be gleaned from his findings. First, I discuss an important question that Tobia’s study glosses over — the question of who the appropriate audience (or “ordinary reader”) is for a particular statute — and I suggest that Tobia’s data do not support the strong version of his claim that different audiences judge statutory meaning similarly. Second, I consider the methodological implications of Tobia’s findings that ordinary meaning often is unclear and that dictionary definitions, corpus linguistics, and collective intuition about ordinary meaning often diverge from each other for a Supreme Court and bench that have moved increasingly toward a textualist approach to statutory interpretation. Specifically, I suggest two metarules that courts might adopt to help curb judicial discretion and uncertainty over ordinary meaning: (1) a rule instructing that certain categories of statutes should be construed in light of their prototypical (or, conversely, legalist) meaning; and (2) a rule directing that differences in the ordinary meaning identified by dictionaries, corpus linguistics, different judges, and/or surveys of laypeople should be considered prima facie evidence that a statute is ambiguous and lacks a “plain” meaning.