Judging Ordinary Meaning

Thomas R. Lee & Stephen C. Mouritsen

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 that were 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.

Source: The Yale Law Journal, Vol. 127, Number 4, p. 788-1105. February 2018.