Tara Leigh Grove
90 Geo. Wash. L. Rev. 1053
The statutory interpretation literature has taken an empirical turn. One recent line of research surveys the public to test whether textualist opinions reached the “right answer” in specific cases—that is, whether textualist judges correctly identified the “ordinary meaning” of federal statutes. This Foreword uses this literature as a jumping off point to explore the concept of “ordinary meaning.” The Foreword challenges two central assumptions underlying this empirical scholarship: first, that “ordinary meaning” should be viewed primarily as an empirical concept, and, second, that textualists themselves view “ordinary meaning” in empirical terms. As the Foreword shows, “ordinary meaning” can be understood as a legal concept, not simply as an empirical fact. Moreover, the Foreword demonstrates that many prominent textualists have long treated “ordinary meaning” as a legal concept—one that must be elucidated through the understanding of a hypothetical reasonable reader (although, as the Foreword discusses, textualists debate how well-informed such a reasonable reader should be). This analysis complicates recent efforts to test empirically whether textualists have reached the “right answer” in specific cases. For many textualists, like many other interpretive theorists, statutory analysis is primarily a normative, not an empirical, enterprise.
