ORDINARY MEANING AND ORDINARY PEOPLE.

• Author: Tobia, Kevin

INTRODUCTION 367 I. ORDINARY MEANING VS. TECHNICAL MEANING 375 A. The Supreme Court's Presumption of Ordinary Meaning 377 B. Textualism's Interpretive Sources 381 C. Textualism's Dilemma 385 II. THE DIVISION OF LINGUISTIC LABOR 388 A. A Division of Linguistic Labor in Law 389 B. A Division of Linguistic Laboras an Empirical Hypothesis 392 III. THE EXPERIMENTAL STUDIES 393 A. Study 1: Lay Views of Legal Expertise 395 1. Study 1a: People Attribute Semantic Expertise to Legal Experts 395 2. Study 1a: Key Results 396 3. Study 1b: People Defer to Legal -Expert Interpret ations 397 B. Study 2 : Ordinary People Def er About TechnicalMeanings 399 C. Study 3: Deference is Compatible unth Competence 402 D. Study 4: Testing the Presumption of Ordinary Meaning 405 E. Study 5: How Do Ordinary People Learn About Law? 411 IV. IMPUCATIONS OF ANEMPIRICALLY GROUNDED PUBLIC MEANING 414 A. Public Meaningand Ordinary People 416 B. Examining the Presumption of Ordinary Meaning 419 1. Contrastive Presumptions 419 2. Situating the Revised Picture Within Legal Interpretation 421 C. A Presumption of Legal Meaningas Applied 425 1. "Tribunal" 426 2. Bostock v. Clayton County 428 D. Public Meaning and Fair Notice 431 1. One Textualist Solution: The Extraordinary "Ordinary Interpreter 432 2. A Second Textualist Solution: The "Ordinary Lawyer" 433 3. Fair Notice as Imperfect Notice 434 4. Fair Notice and Textualism 436 CONCLUSION 439 APPENDIX. SUPREME COURT DICTIONARY CITATIONS 442 A. Reliability and Key Findings. 442 B. Supreme Court Usage of Terms Defined by Dictionaries 444 C. Supreme Court Dictionary Usage 451 D. Case Coding Project Instructions 456 INTRODUCTION

This Article concerns the relationship between ordinary meaning and ordinary people in legal interpretation. Jurists often give interpretive weight to ordinary meaning (i.e., general, nontechnical meaning). Modern textualists adopt a strong commitment to ordinary meaning and justify it with a claim about ordinary people: people understand law to communicate ordinary meanings. This Article examines this empirical claim and finds that individuals' understanding of laws is more complex. Laypeople often take laws to communicate legal--not ordinary--meanings. Interpreters who claim fidelity to ordinary people's understanding of legal language should regularly look beyond ordinary meaning.

The presumption of ordinary meaning is conventionally understood to require that terms be interpreted in accordance with their general, nontechnical meanings. (1) Modern textualists tend to endorse this presumption, and recently some have proposed that a broader commitment to ordinary meaning follows from the theory's essential connection to the ordinary public. In the words of Justice Amy Coney Barrett, textualists "view themselves as agents of the people rather than of Congress and as faithful to the law rather than to the lawgiver." (2) These textualists "approach language from the perspective of an ordinary English speaker" (3) which leads them to "insist[] that judges must construe statutory language consistent with its 'ordinary meaning.'" (4) In other words, the commitment to ordinary meaning follows from a more fundamental faithfulness to ordinary people. (5)

Scholars beyond Justice Barrett--including non-textualists--appeal to ordinary meaning. & Widely shared interpretive values, including fair notice, have been taken to support the consideration of ordinary meaning. (7) Jurists sharing many interpretive philosophies believe that "all persons are entitled to be informed as to what the State commands or forbids." (8) It is plausible that such a fair notice principle is satisfied only if ordinary people are able to "read and understand the law for themselves, without need to absorb distinctively legal training" (9) and that ordinary meaning facilitates ordinary understanding. Thus, ordinary meaning holds a central place in legal interpretation--for textualists and non-textualists alike.

Ordinary meaning is especially central to modern textualism--particularly Justice Barrett's "agents of the people" variation. Ordinary meaning's influence has grown with the rise of "new textualism" (10) and "new originalism." (11) Between 2005 and 2017, the Roberts Court relied on "text" and "plain meaning" in almost fifty percent of majority opinions involving statutory meaning. (12) The 2021 Term is even more notable: for the first time, a super-majority of Justices clearly accept the primacy of "ordinary meaning." (13) Furthermore, many of the young, Trumpappointed judges appear committed to this principle, suggesting that ordinary meaning's import will continue to grow. (14)

Despite its prominence, ordinary meaning is at a crossroads. Textualist Justices are deeply divided over the meaning of "ordinary meaning." (15) Now that six of the Supreme Court's members are avowed textualists, (16) one might think agreement regarding the proper interpretive philosophy would lead to unified results. But broad philosophical agreement has not prevented methodological disagreement, with Justices jousting about the meaning and scope of ordinary meaning. (17)

Textualists are openly divided about when to apply technical rather than ordinary meaning in both statutory and constitutional cases. (18) For instance, in Van Buren v. United States, Justice Barrett, writing for the majority, argued that the term "access" to a computer was a technical term. (19) In response, Justice Thomas, joined by Chief Justice Roberts and Justice Alito, dissented and argued that Justice Barrett's approach to the statute was wrong: ordinary meaning (not technical meaning) should prevail, and ordinary meaning led to precisely the opposite result. (20)

The presence of technical terms in legal texts challenges any unequivocal interpretive commitment to ordinary meaning. And for less unequivocal textualists it raises the question: Which terms are technical? Indeed, legal texts are replete with technical legal terms. (21) Some terms are obviously legal terms of art, as they have no ordinary counterpart: "habeas corpus," "res ipsa loquitur," and "parol evidence," for example. Other terms are "ambiguous" in the sense that they might express either an ordinary or technical legal meaning: "intent," "reasonable," and "tribunal," for instance. (22) The significant number of technical terms in legal texts has convinced some prominent scholars that legal language is primarily a technical language. (23) The Court recently acknowledged that "[s]ometimes Congress's statutes stray a good way from ordinary English." (24) Nevertheless, the Court maintains that "affected individuals and courts alike are entitled to assume statutory terms bear their ordinary meaning." (25)

The presence of technical legal language presents a theoretical challenge for textualists who increasingly define and justify their interpretive methodology as consistent with ordinary meaning and ordinary people. (26) Some textualists apply ordinary meanings because this mode of interpretation promotes fair notice or reflects faithful agency to the people. (27) But this assumption depends on an untested empirical question. Namely, do ordinary people understand legal language to generally communicate ordinary meanings? Perhaps the assumed connection between ordinary people and ordinary meaning is not so robust. Might ordinary people understand some laws to communicate technical meanings?

Promisingly, the (textualist) Supreme Court has shown an increasing interest in using empirical evidence to help inform statutory interpretation. (28) If the Court seeks to base its interpretive principles on facts about how ordinary members of the public understand language, empirical studies can provide useful information about those facts. Building on recent empirical work on ordinary meaning, (29) we use methods from the growing field of "experimental jurisprudence" to help resolve the tension between ordinary and technical meaning. (30) A series of original empirical studies of American people reveal that ordinary people's understanding of law is not limited to ordinary meaning. To the contrary, people understand law to communicate technical meanings, especially legal meanings.

Insofar as modern textualism appeals to "ordinary people" or the "ordinary reader"--out of concern for democracy, fair notice, or rule of law values, or objective inquiry into meaning--this empirical discovery indicates that textualists should rethink a sweeping and unwavering commitment to ordinary meaning. Most critically, the results suggest that a commitment to ordinary people does not entail a broad and strong presumption of ordinary meaning. Ultimately, the results reveal a complex picture of how ordinary people understand legal language: People are sensitive to both the legal context (i.e., does the term appear in law or in nonlaw) and the term type (i.e., is the term ordinary or legal). The evidence reveals that fidelity to ordinary people requires sensitivity to both ordinary and legal meaning.

This Article proceeds in four Parts. First, Part I provides background on ordinary meaning. It articulates the challenges facing some interpreters-including modern textualists--that arise from a conflict between ordinary and technical meaning. Textualist theory centers ordinary meaning: lest laws be like Nero's edicts, posted "high up on the pillars, so that they could not easily be read." (31) At the same time, textualist practice regularly gives statutory terms technical legal meanings. Furthermore, even when purporting to give terms their "ordinary" meanings, textualist judges rely on evidence of technical meaning, such as technical definitions from legal dictionaries. An analysis of recent Supreme Court opinions citing a legal dictionary (over 500 opinions in total) reveals that textualists (and non-textualists) regularly appeal to sources of evidence about technical meaning when purporting to evaluate ordinary...