Kevin Tobia, "Testing Ordinary Meaning"

Forthcoming in Harvard Law Review
<https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fpapers.ssrn.com%2Fsol3%2Fpapers.cfm%3Fabstract_id%3D3266082&amp;data=02%7C01%7CCLASSICS-L%40lsv.uky.edu%7Ca3840ea62d75464bb5cf08d72ff8356e%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C637030616122099694&amp;sdata=4Jfpx6vY8%2F1o0tgaGMvxBsh0Ya%2BIGjUywatLMIhgcqM%3D&amp;reserved=0>:  the author
asks:

Within legal scholarship and practice, among the most pervasive tasks is
the interpretation of texts. And within legal interpretation, perhaps the
most pervasive inquiry is the search for “ordinary meaning.” Legal
interpretation—of contracts, statutes, wills, trusts, deeds, patents,
regulations, treaties, and constitutions—regularly includes evaluation of
how ordinary people would understand the text... To discover ordinary
meaning, interpreters increasingly recommend as evidence a relevant
term’s *dictionary
definition* or its *pattern of usage* across various sources in an
English-language corpus. However, the most central question about these
sources of evidence remains open: Do these popular methods accurately
reflect ordinary meaning?

Justice Scalia (others have read him in greater depth than I have) says “Words
are to be understood in their ordinary, everyday meanings—unless the
context indicates that they bear a technical sense.”  What he meant is
worth pursuing, but not here.  Tobia has rounded up 230 law students and
nearly a hundred judges and discovered "systematic divergences among the
verdicts delivered by modern concept use, dictionary use, and corpus
linguistics use." Examples include what is meant by “vehicle,” “labor,”
“weapon,” “carrying a firearm,” and “tangible object.”  In summary:

We need to  "distinguish between 'prototypical' and 'broad' senses of the
same term." "'Car' is a prototypical vehicle, ... airplanes, bicycles, and
canoes are less prototypical vehicles. An extensive criterion would include
all of those entities as vehicles, while a prototypical criterion would
include only cars.... dictionaries and corpus linguistics often track only
one of these criteria—dictionaries tend to track the broad criterion and corpus
linguistics <https://nam04.safelinks.protection.outlook.com/?url=https%3A%2F%2Fen.wikipedia.org%2Fwiki%2FCorpus_linguistics&amp;data=02%7C01%7CCLASSICS-L%40lsv.uky.edu%7Ca3840ea62d75464bb5cf08d72ff8356e%7C2b30530b69b64457b818481cb53d42ae%7C0%7C0%7C637030616122099694&amp;sdata=LrCfb711KHlhdVwcYK7dabtCF5z7%2BImQRki4pafOBNc%3D&amp;reserved=0> the
prototypical one."

Tobia identifies  alternative "fallacies of interpretation," e.g. “The
Non-Appearance Fallacy,” the mistaken assumption that the non-appearance of
some use in a corpus indicates that this use is outside of ordinary
meaning.  "We could not find even one example of an airplane referred to as
a 'vehicle,'  implying that "the ordinary meaning of “vehicle” does not
include airplanes. However, ordinary meaning sometimes diverges from
ordinary use: People’s full understanding of language is not always
reflected in recorded speech and writing, especially their understanding
concerning non-prototypical category membership."

"The findings’ significance for different theories of legal interpretation.
...  certain formalist, textualist, and originalist views ...  are
committed to the *existence of a single ordinary meaning* of terms like
“vehicle” and phrases like 'carrying a firearm,' one which is
outcome-determinative without reference to further context, textual
purpose, or even type of law....  popular methods of dictionary-use and
corpus linguistics carry *serious risks of diverging from ordinary
understanding*—conservatively estimated, 20-35%. And in some circumstances,
even *judges’ use of these methods carried extremely large divergence
rates—between 80-100%*. ... In light of the data, these views must
articulate and demonstrate a reliable method of interpretation."

"From the perspective of interpretive theories that are uncommitted to, or
even skeptical of, the notion of a single “ordinary meaning” that
determines legal outcomes across a range of cases and contexts.... the
findings illuminate two different criteria that are often relevant in
interpretation: a more extensive criterion and a more narrow, prototypical
criterion. Although dictionaries and corpus linguistics can help us assess
these criteria, a hard legal-philosophical question remains: Which of these
two criteria should guide the interpretation of terms and phrases in legal
texts? Insofar as there is no compelling case to prefer one, the results
suggest that dictionary definitions, corpus linguistics, or even other more*
scientific measures of meaning may not be equipped in principle to deliver
simple and unequivocal answers to inquiries about the ordinary meaning of
legal texts."*

And that final sentence of the abstract is the final sentence of the
"conclusions" to the full essay, attached.  Tantalizingly, Tobia doesn't go
on to say.  I'm going to ask him.

For a philologist, fascinating, full of implication.

Dan