Judging Ordinary Meaning.

Author:Lee, Thomas R.

ARTICLE CONTENTS INTRODUCTION 792 I. ORDINARY MEANING IN THE LAW OF INTERPRETATION 796 A. Theoretical Shortcomings 800 1. Muscarello v. United States 803 2. Taniguchi v. Kan Pacific Saipan, Ltd. 804 3. United States v. Costello 805 B. Operational Shortcomings 806 1. Muscarello v. United States 807 2. Taniguchi v. Kan Pacific Saipan, Ltd. 810 3. United States v. Costello 812 II. THEORIZING ORDINARY MEANING 813 A. Semantic Meaning 818 1. Lexicography 818 2. Syntactic and Semantic Context 821 B. Pragmatic Meaning 823 C. Meaning as of When? 824 D. Whose Meaning? 827 III. OPERATIONALIZING ORDINARY MEANING 828 A. Tools 830 1. Varieties of Linguistic Corpora 830 2. Corpus Tools--Frequency, Collocation, and Key Word in 831 Context 3. Representing Speech Community and Register in a Corpus 832 4. Representing Historical Language Use 833 5. The BYU Corpora 833 a. NOW Corpus 833 b. Corpus of Historical American English ("COHA") 835 B. Applications 836 1. Vehicles in the Park 836 a. Lexical Collocation of Vehicle Through Time 837 b. Vehicle as a KWIC 840 c. Searching for Vehicles in the Context of a Park 842 d. Is Bicycle a Vehicle? Is Airplane a Vehicle? 844 2. Muscarello and Carries a Firearm 845 a. The Collocates of Carry 845 b. Carry as a KWIC 846 3. Taniguchi and the Meaning of Interpreter 848 a. The Collocates of Interpreter 848 b. Interpreter as a KWIC 849 4. Costello and Harboring an Alien 850 a. Collocation of Harbor 850 b. Harbor as a KWIC 851 C. Caveats and Conclusions 851 1. Caveats 852 a. Semantic Meaning 852 b. Pragmatic Meaning 853 c. Meaning as of When? 857 d. Whose Meaning? 857 2. Conclusions 858 a. Vehicles 859 b. Carrying a Firearm 862 c. Interpreter 863 d. Harbor 864 IV. OBJECTIONS AND RESPONSES 865 A. Proficiency: Judges (and Lawyers) Can't Do Corpus Linguistics 865 B. Propriety: Judges Shouldn't Do Corpus Linguistics 868 C. Practicality: Corpus Linguistics Will Impose an Unbearable 871 Burden D. Corpus Data Represents Only "More Factually Common 873 Iterations" E. Political Neutrality 876 F. Potential: The Role for Corpus Linguistic Analysis in 877 Addressing Problems of Ordinary Meaning CONCLUSION 878 INTRODUCTION

A key component of the meaning we ascribe to law concerns its "communicative content." Professor Lawrence Solum has spoken of such content as consisting of the "linguistic meaning" of the words of a statute or regulation. (1) We can also think of it as encompassing the "intended" meaning of the lawmaker, to use the words of Professor Richard Fallon, (2) or the "contextual meaning" understood by the public, as framed by Professors Will Baude and Stephen Sachs. (3) This is the threshold question for the "standard picture" of legal interpretation, which starts with a search for the "ordinary communicative content" of the words of the law. (4) That search is the focus of this article. We highlight deficiencies in the law's search for ordinary meaning and introduce a tool imported from linguistics--corpus linguistic analysis--that can help overcome some of those deficiencies.

Most everyone--not just textualists anymore--agrees that "[t]here are excellent reasons for the primacy of the ordinary meaning rule." (5) Most of the reasons stem from the purported determinacy of the ordinary meaning inquiry. We speak of a search for meaning "not in the subjective, multiple mind of Congress but in the understanding of the objectively reasonable person." (6) And we generally conclude that the search for such meaning "matches up well with our understanding of what the rule of law entails" (7): it assures notice to the public, protects reliance interests, assures consistency of application, and respects the will of the legislative body. (8) So although we recognize that "ordinary meaning does not always yield predictable answers to statutory issues," we tend to accept that it "yield[s] greater predictability than any other single methodology." (9)

This premise has taken hold in our courts: "[W]e're all textualists now." (10) That holds true at least in the sense that most judges begin the interpretive inquiry with the words of a statute--and even end there if they find the meaning of those words to be "plain." (11)

Yet the academy has been less sure of the premises of this trend. Scholars like Fallon and Cass Sunstein generally have endorsed the value of determinacy but roundly doubted the judge's ability to find it in the mere "communicative content" or "ordinary meaning" of statutory text. (12) There are two dimensions to this skepticism--questions about the meaning of the law's search for "ordinary meaning" and concerns about a judge's ability to measure or assess it with any degree of determinacy. (13)

As Baude and Sachs say, "we can't treat the meaning of [a given text's] language as the only source of its legal effect." (14) Our law of interpretation may have good reasons to depart from the "standard picture"--to substitute "fake" answers to linguistic questions for real ones. (15) It is doubtless true, moreover, that some of our rules of interpretation dictate a "process" that "often looks nothing like a straight-forward search for linguistic meaning." (16)

We share these commentators' concerns but offer a different solution. In this Article, we show that the law has done a poor job conceptualizing the notion of ordinary meaning, and we ultimately agree that " [u] ncertainty and division" in assessing such meaning "seem inevitable" under the methods currently resorted to by judges. (17) But we do not see these problems as an invitation to abandon the search for the ordinary communicative content of the law in favor of case-by-case "interpretive eclecticism." (18) Nor do we find in the indeterminacy of the search for ordinary meaning a broad license for "normative judgments" about whatever "interpretation" "makes our constitutional system better rather than worse." (19) This kind of "interpretation" overrides--rather than protects--the values served by the ordinary meaning rule. It undermines reliance and fair-notice interests and gives voice to the will of judges, not lawmakers.

We may eventually throw up our hands and conclude that some questions of ordinary meaning have no good answers. Or we may conclude that the law has good reason to substitute a nonlinguistic answer that vindicates policies more important than the ones advanced by the "standard picture." (20) But we cannot skip or assume away the threshold question of ordinary meaning. While the search for ordinary meaning is hard, the premises of this inquiry are too deeply embedded in our law and too clearly rooted in important policy considerations to give up at the first sight of difficulty or indeterminacy, or to judge the enterprise on the fuzzy premises or mistaken methodologies of the past. So we take up the inquiry here.

Our thesis is that words have meaning, and that meaning can be theorized and measured using principles and methods devised in the field of linguistics. 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. (21) Linguists have developed computer-aided means of answering such questions. We propose to import those methods into the modern theory and practice of interpretation, and we identify problems in the methods that the law has been using to address these issues.

Our proposed methodology is a set of tools utilized in a field called corpus linguistics. Corpus linguists study language through data derived from large bodies--corpora--of naturally occurring language. They look for patterns in meaning and usage in large databases of actual written language. And we think their methods may easily be adapted in a manner that will allow us to conceptualize and measure the "standard picture" in a much more careful way. (22)

In Part I, we begin by noting the circumstances in which the "standard picture" controls under statutory interpretation, highlighting exemplary cases where the ordinary communicative content of the words of a statute seems to dictate the court's holding. Next, we identify shortcomings in the law's attempt to give effect to that communicative content--shortcomings in both the theory of ordinary meaning and in attempts to operationalize (or measure) it. In Part II, after outlining these two sets of problems, we introduce theories and empirical methods from the field of corpus linguistics that may help us deliver on the promise of an objective inquiry into ordinary meaning. (23) In Part III, we apply these tools to our exemplary cases. We close, in Part IV, by responding to actual and anticipated criticisms of our approach and by highlighting unresolved issues that must be addressed going forward.


    Everyone agrees that our sense of the ordinary communicative content of legal language is an important starting point for interpretation. All agree, moreover, that the law should credit that content at least sometimes. This holds even for those who doubt our ability to settle on a single notion of meaning or to assess it with any degree of consistency. (24)

    Judges are generally even more sanguine about the matter. The case law in this field is marked by numerous references to the "standard picture." Judges routinely advert to the idea of crediting the "ordinary meaning" of statutory text. (25) Where such meaning is viewed as "plain," moreover, judges consistently declare the interpretive enterprise to be at an end. (26) The general rule is to credit the communicative content of statutory text where it is "plain," and in that event, to close the door to the consideration of extratextual sources of meaning or intent. (27)

    A variation on the theme applies in the realm of substantive canons of construction or principles of deference. The rule of lenity, for example, says that genuine ambiguities in criminal laws are resolved in favor of the...

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