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122 Colum. L. Rev. 213 (2022)
Statutory Interpretation from the outside

handle is hein.journals/clr122 and id is 221 raw text is: ESSAY STATUTORY INTERPRETATION FROM THE OUTSIDE Kevin Tobia,* Brian G. Slocum** & Victoria Nourse*** How should judges decide which linguistic canons to apply in inter- preting statutes? One important answer looks to the inside of the legisla- tive process: Follow the canons that lawmakers contemplate. A different answer, based on the ordinary meaning doctrine, looks to the outside: Follow the canons that guide an ordinary person's understanding of the legal text. We offer a novel framework for empirically testing linguistic canons 'from the outside, recruiting 4,500 people from the United States and a sample of law students to evaluate hypothetical scenarios that correspond to each canon's triggering conditions. The empirical findings provide evidence about which traditional canons ordinary meaning actually supports. This Essay's theory and empirical study carry several further impli- cations. First, linguistic canons are not a closed set. We discovered possi- ble new canons that are not yet reflected as legal canons, including a nonbinary gender canon and a quantifier domain restriction canon. Second, we suggest a new understanding of the ordinary mean- ing doctrine itself, as one focused on the ordinary interpretation of rules, as opposed to the traditional focus on ordinary language generally. Third, many of the canons reflect that ordinary people interpret rules with an intuitive anti-literalism. This anti-literalism finding challenges textualist assumptions about ordinary meaning. Most broadly, we hope this Essay initiates a new research program in empirical legal inter- pretation. If ordinary meaning is relevant to legal interpretation, inter- preters should look to evidence of how ordinary people actually under- * Associate Professor of Law, Georgetown University Law Center. ** Distinguished Professor of Law, University of the Pacific, McGeorge School of Law. *** Ralph V. Whitworth Professor of Law, Georgetown University Law Center. For helpful comments, we thank Bernard Black, Bill Buzbee, Erin Carroll, Josh Chafetz, Christoph Engel, Andreas Engert, William Eskridge, Ezra Friedman, Brian Galle, Neal Goldfarb, Hanjo Hamann, Joe Kimble, Anita Krishnakumar, Tom Lee, Daniel Rodriguez, Corrado Roversi, Sarath Sanga, Mike Seidman, Amy Semet, Josh Teitelbaum, Michele Ubertone, and audiences at the Free University of Berlin Empirical Legal Studies Center, the Max Planck Institute for Research on Collective Goods, Georgetown University Law Center, Northwestern University Law School, the University of Chicago Law School, and the University of Bologna. For outstanding editorial assistance, we thank Larisa Antonisse and the staff of the Columbia Law Review. This empirical research was funded by the Swiss National Science Foundation Spark Grant for The Ordinary Meaning of Law, CRSK- 1 190713. 213