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THOMAS R. LEE & STEPHEN C. MOURITSEN
Judging Ordinary Meaning
AB 5 TRAC T. Judges generally begin their interpretive task by looking for the ordinary meaning of the language of the law. And they often end there - out of respect for the notice function of the law or deference to the presumed intent of the lawmaker. Most everyone agrees on the primacy of the ordinary meaning rule. Yet scholars roundly be- moan the indeterminacy of the communicative content of the language of the law. And they pivot quickly to other grounds for interpretation. We agree with the diagnosis of important scholars in this field - from Richard Fallon and Cass Sunstein to Will Baude and Stephen Sachs -but reject their proposed cures. Instead of setting aside the threshold question of ordinary meaning, we seek to take it seriously. We do so through theories and methods developed in the scholarly field designed for the study of language: linguis- tics. We identify theoretical and operational deficiencies in our law's attempts to credit the ordinary meaning of the law and present linguistic theories and tools to assess it more reliably. Our frame- work examines iconic problems of ordinary meaning - from the famous "no vehicles in the park" hypothetical to two Supreme Court cases (United States v. Muscarello and Taniguchi v. Kan Pacific Saipan, Ltd.) and a Seventh Circuit opinion by Judge Richard Posner (in United States v. Costello). We show that the law's conception of ordinary meaning implicates empirical questions about lan- guage usage. And we present linguistic tools from a field known as corpus linguistics that can help to answer these empirical questions. 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. Linguists have devel- oped computer-aided means of answering such questions. We propose to import those methods into the law's methodology of statutory interpretation. And we consider and respond to criticisms of their use by lawyers and judges.
A UT HO R S. Thomas R. Lee is Associate Chief Justice of the Utah Supreme Court and a Distin- guished Lecturer of Law at Brigham Young University. Stephen C. Mouritsen is an Associate at the University of Chicago Law School and Adjunct Professor of Law and Corpus Linguistics at Brigham Young University. The authors express thanks to those who commented on earlier drafts or offered insights in response to presentations in various conferences, symposia, and talks, in- cluding Randy Barnett, Will Baude, Ryan Doerfler, Frank Easterbrook, Ed Finegan, Jonah Gel- bach, Stefan Th. Gries, Dan Klerman, Kurt Lash, (^) John Manning, John McGinnis, Noah Messing, Greg Murphy, Gordon Smith, Larry Solan, Larry Solum, Eugene Volokh, and John Yoo. Thanks also to Brigham Young University and to the Georgetown University Law Center for cosponsoring a conference on (^) law and corpus linguistics, at which the ideas in this piece were initially (^) vetted, and to the Olin-Searle-Smith Fellows in Law program for making possible Mr. Mouritsen's asso- ciation with the University of Chicago Law School. Special thanks to James C. Phillips for his editorial and research assistance at every stage of this project. Thanks also to John Cutler, Chauntel Lopez, Daniel Ortner, Bradley Pew, and Aaron Worthen for their research assistance.
F. Potential: The Role for Corpus Linguistic Analysis in Addressing
- c. Searching for Vehicles in the Context of a Park - d. Is Bicycle a Vehicle? Is Airplane a Vehicle? - 2. Muscarello and Carries a Firearm - a. The Collocates of Carry - b. Carry as a IGXIC - 3. Taniguchi and the Meaning of Interpreter - a. The Collocates of Interpreter - b. Interpreter as a IXVIC - 4. Costello and Harboring an Alien - a. Collocation of Harbor - b. Harbor as a IGVIC - C. Caveats and Conclusions - 1. Caveats - a. Semantic Meaning - b. Pragmatic Meaning - c. Meaning as of When? - d. Whose Meaning? - 2. Conclusions - a. Vehicles - b. Carrying a Firearm - c. Interpreter - d. Harbor
- IV. OBJECTIONS AND RESPONSES
- A. Proficiency: Judges (and Lawyers) Can't Do Corpus Linguistics
- B. Propriety: Judges Shouldn't Do Corpus Linguistics
- C. Practicality: Corpus Linguistics Will Impose an Unbearable Burden
- D. Corpus Data Represents Only "More Factually Common Iterations"
- E. Political Neutrality - Problems of Ordinary Meaning
- CONCLUSION
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INTRODUCTION
A key component of the meaning we ascribe to law concerns its "communi- cative content." Professor Lawrence Solum has spoken of such content as con- sisting of the "linguistic meaning" of the words of a statute or regulation. 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" under- stood by the public, as framed by Professors Will Baude and Stephen Sachs.' 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 deficien- cies 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 ex- cellent reasons for the primacy of the ordinary meaning rule." Most of the rea- sons stem from the purported determinacy of the ordinary meaning inquiry. We
1. Lawrence (^) B. Solum, Communicative Content and Legal Content, (^) 89 NOTRE DAME L. REV. 479, 480 (2013) (distinguishing^ the^ "communicative^ content"^ of^ a^ legal^ text^ from^ its^ "legal^ con- tent," or in other words "the legal norms the text produces"). 2. Richard H. Fallon, Jr., The Meaningof Legal "Meaning"and Its Implicationsfor Theories of Legal Interpretation, 82 U. CHI. L. REv. 1235, 1249-50 (2015) (speaking of these and other conceptions of the communicative or "conversational" content of the words of the law). 3. William Baude & Stephen E.^ Sachs,^ The^ Law^ of^ Interpretation,^ 13o^ HARv.^ L.^ REV.^ 1079,^ 11o (2017).
- See id. at io86 (speaking of the "Standard Picture," or the "view that we can explain our legal norms by pointing to the ordinary communicative content of our legal texts,' in other words "an instrument's meaning as a matter of language"); see also Mark Greenberg, The Standard Picture and Its Discontents, in 1 OXFORD STUDIES IN PHILOSOPHY OF LAw 39, 48 (Leslie Green & Brian Leiter eds., 2011) (describing the "Standard Picture"). Here and elsewhere we some- times conflate "communicative content" and "ordinary meaning." Yet we acknowledge that some legal terms are used in an extraordinary sense - as with legal terms of art. And we rec- ognize that legal language may be viewed as a distinct dialect, and thus that "communicative content" may sometimes be understood to encompass "extraordinary" (specialized legal) meaning. See John 0. McGinnis & Michael B. Rappaport, The Constitutionand the Language of the Law (^) 4-5 (Univ. of San Diego Sch. of Law Legal Studies Research (^) Paper Series, No. 17- 262, 2017), http://papers.ssrn.com/sol3/papers.cfm ?abstract id=2928936 [http://perma.cc /2V4V-C69M] (asserting that the Constitution is written in the "language of the law," not ordinary English, and thus that its interpretation should account for the canons and legal conventions that would have been accepted by the legal community at the time of the found- ing). 5. WILLIAM N. ESKRIDGE, JR.,^ INTERPRETING^ LAw:^ A^ PRIMER^ ON^ How^ To^ READ^ STATUTES AND THE CONSTITUTION 35 (2016).
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skepticism - questions about the meaning of the law's search for "ordinary mean- ing" and concerns about a judge's ability to measure or assess it with any degree of determinacy." As Baude and Sachs say, "we can't treat the meaning of [a given text's] lan- guage 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" an- swers to linguistic questions for real ones." 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."1 6 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." 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."'" 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
Nothing that InterpretationJust Is, 30 CONST. COMMENT. 193, 194-95 (2015) (identifying possi- ble notions of meaning, including authorial intention, public meaning, moral reading, and others).
13. See Fallon, supra note 2, at 1272 (noting that "there^ can^ be^ a^ multitude^ of^ linguistically^ perti- nent facts, generating different senses of meaning, which in turn support avariety of claims"); id. at 1268-69 (asserting that " [u]ncertainty and division" in measuring ordinary meaning are "inevitable," that evidence of "communicative or assertive content, understood as a matter of linguistic fact, is often sparse, minimal, or indeterminate as applied to particular cases," and that we "cannot proceed by taking or imagining the outcome of an opinion poll" about ordi- nary meaning). 14. Baude & Sachs, supra note 3, at 1o88; see also id. at 1096 ("We see this as one of^ the^ most important functions of a legal system: to replace real answers with fake ones. There may be real answers out there to lots of important normative and policy questions, such as how fast we should drive on the highway, what tax policy is best, and so on. But people persistently disagree on the real answers, and the legal system helpfully offers fake answers instead - an- swers that hopefully are somewhat close to the real ones, but on which society (mostly) agrees and which allow us (mostly) to get along."). 15. Id. at 1082, 1o96.
- Id. at io88. 17. Fallon, supra^ note^ 2,^ at^ 1268. is. Id. at 1305, 1308 (describing "interpretive eclecticism" as involving the choice of the "best in- terpretive outcome as measured against the normative desiderata of substantive desirability, consistency with rule of law principles, and promotion of political democracy, all things con- sidered").
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worse."" This kind of "interpretation" overrides - rather than protects - the val- ues 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 enter- prise 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 lin- guistic context.2 1^ 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 conceptu- alize and measure the "standard picture" in a much more careful way.^22
ig. Sunstein, supra (^) note 12, at 193-94.
20. In other words, maybe the "standard picture" doesn't claim to be a picture of American law. Cf Baude & Sachs, supra note 3, at 1o89 (arguing that there may be "real trouble for the stand- ard picture, at least if it claims to be a picture of American law"). 21. Judge Posner framed the ordinary meaning question in this (empirical) way in his opinion in United States v. Costello, 666 F. 3 d. 1040, 1044 ( 7 th Cit. 2012). There he proposed to answer this question using the results of a Google search. We think Judge Posner's instincts were right (^) but his methods fell a bit short, as explained below. (^) See discussion infra Section I.B.3. 22. Corpus linguistics is not the only linguistic discipline that relies on empirical observation and experimentation. Empirical observation is a vital component of a variety of linguistic disci- plines, including sociolinguistics, historical linguistics, phonetics, discourse analysis, field lin- guistics, computational linguistics, cognitive linguistics, and psycholinguistics. As we will dis- cuss below, this Article focuses on corpus linguistics, but we do not mean to suggest that other
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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 here such meaning is viewed as "plain," moreover, judges consistently declare the interpretive enterprise to be at an end.2 6^ 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 in- tent.2 7 A variation on the theme applies in the realm of substantive canons of con- struction or principles of deference. The rule of lenity, for example, says that genuine ambiguities in criminal laws are resolved in favor of^ the^ defendant;^28 the converse is the notion that "the rule of lenity has no application when the statute is clear."^29 Chevron deference is similar: the courts defer to agencies only where the terms of the statute are ambiguous.o
25. See, e.g., Clark v. Rameker, 134 S. Ct. 2242, 2246 (2014) (" [W]e give the term its ordinary meaning"); Bond v. United States, 134 S. Ct. 2077, 2091 (2014) ("In settling on a fair reading of a statute, it is not unusual to consider the ordinary meaning of a defined term... ."); Mo- hamad v. Palestinian Auth., 566 U.S. 449, 454 (2012) ("Because the [Act] does not define the term 'individual,' we look first to the word's ordinary meaning."); Mac's Shell Serv., Inc. v. Shell Oil Prods. Co., 559 U.S. 175, 182 (2010) ("We ... give [the relevant] terms their ordinary meanings."). 26. See William Baude & Ryan D. Doerfler, The (Not So) Plain Meaning Rule, 84 U. CHI. L. REv. 539, 539 (2017) (characterizing the "plain^ meaning^ rule"^ as^ a^ "compromise"^ in^ which^ "other information can't be considered" if "the statute's meaning is plain," but in which other infor- mation "comes in" if "it isn't plain"). 27. See, e.g., KENT GREENAWALT, LEGISLATION: STATUTORY INTERPRETATION: 20 QUESTIONS 35 (1999) ("No one seriously doubts that interpretation of statutes turns largely on textual meaning."); Gluck, supra note 11, at 1758 (stating that the "modified textualism" approach embraced in most state courts "ranks interpretive tools in a clear order -textual analysis, then legislative history, then default judicial presumptions - and it includes legislative history in the hierarchy"). 28. How much ambiguity, of course, (^) is a difficult question. See Abramski v. United States, (^134) S. Ct. 2259, 2272 n.io (2014) (asserting that the rule applies only if "there remains a grievous ambiguity or uncertainty in the statute" that cannot be resolved - if the Court is left to "simply guess as to what Congress intended" (quoting Maracich v. Spears, 133 S. Ct. 2191, 2209 (2013)); id. at 2281 (Scalia, J., dissenting) (suggesting that the rule should apply if "after all legitimate tools of interpretation" have been employed "a reasonable doubt persists" (quoting Moskal v. United States, 498 U.S. 103, io8 (1990))); ANTONIN SCALIA &BRYAN A. GARNER, READING LAw: THE INTERPRETATION OF LEGAL TEXTS 299 (2012) (decrying the "multiplicity of expressed standards" for invoking the rule of lenity, "leav[ing] open the crucial ques- tion ... of how much ambiguousness constitutes an ambiguity" (quoting United States v. Hansen, (^) 7 7 2 F.2d 940, 948 (D.C. Cir. 1985))). 29. (^) See SCALIA& GARNER, supra (^) note 28, at 301. 30. See Michigan v. EPA, 135 S. Ct.^ 2699,^2707 (2015).
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However, commentators are undoubtedly right to question the determinacy of the inquiry into ordinary meaning. The problem, as noted, is twofold- going both to the law's conception of ordinary meaning and to our judges' attempts to measure it. First is a problem of theory: ironically, we have no ordinary meaning of "ordinary meaning."" The same goes for "plain meaning." "Courts and schol- ars sometimes use the phrase 'plain meaning' to denote something like ordinary meaning," or in other words, "the meaning one would normally attribute to [the] words" of a statute "given limited information about their context."3 2^ Other times "plain meaning" is used to denote obvious meaning-i.e., "the meaning that is clear."" This is the sense at work in the "plain meaning rule."^34 Second is a problem of operationalization or measurement. The concern here is that even if we could settle on a theory of ordinary or plain meaning, we are unsure how to assess it. "Uncertainty and division seem inevitable."" That is true because the question of intended or understood meaning is an empirical one, and judges cannot "proceed by taking or imagining the outcome of an opin- ion poll" as to intended or perceived meaning.^36 The problem is underscored by the tools (mis)used by judges to try to answer this empirical question (resort to dictionary definitions or even a word's etymology, for example, as explored be- low). The theoretical and measurement problems plaguing the ordinary meaning inquiry are even bigger than most have acknowledged. The depth of the problem is best illustrated by reference to concrete examples in the case law. Throughout this article we consider the following:
- Is a person guilty of carrying afirearm (under a federal sentencing en- hancement provision) in connection with a drug crime if he merely
31. WILLIAM N. ESKRIDGE, JR.^ ET^ AL., CASES AND^ MATERIALS^ ON^ LEGISLATION:^ STATUTES AND^ THE CREATION OF PUBLIC POLICY 792-93 ( 4 th ed. 2007) (noting the irony that "'plain meaning' is ... a deeply ambiguous term" and highlighting differences in the ways courts use the terms "plain meaning," often to refer to a sense (^) that is "quite clear in a literal sense;' and "ordinary meaning;' which may mean "the best (most coherent) textual understanding that emerges after close textual analysis"); Richard A. Posner, Statutory Interpretation - in the Classroom and in the Courtroom, 50 U. CHI. L. REv. 800, 808 (1983) (observing, as to the "'start with the words' canon;' that "[i]t is ironic that a principle designed to clarify should be so ambigu- ous"). 32. Baude & Doerfler, supra note 26, at 545. 33. Id.
- Id. 3s. Fallon, supra^ note^ 2,^ at^ 1268. 36. Id.
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for data, and he did so using the tool that is perhaps most familiar to us today. He performed a Google search.
Is this the best we can do? Below, we use these cases to highlight the theoretical and operational deficiencies in the law's search for ordinary meaning.
A. Theoretical Shortcomings
The case law embraces a startlingly broad range of senses of ordinary mean- ing. When judges speak of ordinary meaning, they often seem to be speaking to a question of relative frequency- as in a point on the following continuum:
POSSIBLE 4 COMMON 4 MOST FREQUENT 4 EXCLUSIVE
At the left end of the continuum is the idea of a possible or linguistically permissible meaning-a sense of a word or phrase that is attested in a known body of written or spoken language. A meaning is a possible one if we can say that "you can use that word in that way" (as attested by evidence that other peo- ple have used the word in that way in the past). Yet a possible meaning may be an uncommon or unnatural sense of a given term. In that case, we might note that a given sense of a term is not common in a given linguistic setting, even if it is possible to speak that way. And even a common sense of a term might not be the most frequent use of it in a certain context. The notion of plain meaning adds the final point to the continuum. When courts speak of plain meaning (as a concept distinct from ordinary meaning) they generally mean to "denote obvious meaning" or "meaning that is clear."^40 A plain - obvious or clear - meaning would be more than most frequent. It would be nearly exclusive. The four points on the continuum can be illustrated by a range of senses of the term vehicle in the hypothetical "no vehicles in the park" provision.4 1^ One attested sense of vehicle is the notion of a "carrier" or "agent of transmission." That sense could sweep broadly. If (^) we are thinking of the carrier sense of vehicle, the "no vehicles in the park" prohibition could possibly be viewed as covering a
40. Baude & Doerfler, supra note 26, at 545. 41. H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV.^ L.^ REV.^ 593,^ 606- (1958). In this Section, we make some suppositions on the points on the continuum-on which senses of vehicle are possible, common, and most frequent. We do so to illustrate the range of senses of ordinary meaning. We will move from supposition to empirical analysis of these questions later. See infra Section III.C.2.a. 42. WEBSTER'S^ THIRD^ NEW^ INTERNATIONAL^ DICTIONARY^2538 (1961).
Soo
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dog or cat, which could be referred to as a vehicle (as a carrier of infection). Yet that sense of vehicle would not be viewed as a natural or common one in this linguistic setting. If the "no vehicles" ordinance is aimed at only common senses of vehicle, we likely would not deem it to prohibit pets. Alternatively, we could say that the meaning of vehicle in this setting is plain or clear, meaning that the exclusive sense of vehicle is one that eliminates the possibility of its extension to pets. Is a bicycle a vehicle covered by the ordinance? Perhaps so - as encompassed by the sense of vehicle as "a means of carrying or transporting something: con- veyance."^43 This sense of vehicle could easily be viewed as a common sense of vehicle - certainly more common than the sense of an infection carrier noted above. But conveyance may not be the most common- the statistically most fre- quent - sense of vehicle in this linguistic setting (an outdoor public park). If we are looking for the most frequent sense of vehicle in this context,^44 we might un- derstand the term to encompass only motor vehicles, and thus not to cover the bicycle. The four points on the frequency continuum do not completely capture the range of senses of ordinary meaning embraced by our courts. Sometimes judges seem to have reference to a fifth notion of ordinary- a notion of linguistic proto- type.^45 Aprototype is a sense, or example of a sense, that is viewed as most strongly associated with a given term in a given context. And that may jibe with the way we separate senses or definitions in our minds. A difference in word meaning may "be represented in cognition not as a set of criterial features with clear-cut boundaries" the way a dictionary would represent things, but instead "in terms
43 Id.
- This notion of "ordinariness" is attested in the Oxford English Dictionary. See 1o^ THE^ OXFORD ENGLISH DICTIONARY 912 (2d ed. 1989) (defining "ordinary" as "Of language, usage, dis- course, etc.: that most commonly found or attested... ."); see also Lawrence M. Solan & Tammy Gales, Finding OrdinaryMeaning in Law: The Judge, the Dictionaryor the Corpus?, 1
INT'L J. LEGAL DISCOURSE 253, 263 (2016) ("'Ordinary meaning, especially as applied to par-
ticular words and phrases, is a distributional fact. A usage is 'ordinary' when it predomi- nates.").
45. See McBoyle v. United States,^283 U.S.^ 25,^27 (1931)^ (Holmes,^ J.)^ (determining^ whether^ an
"airplane" (^) was a "vehicle" for the purposes of the National Motor Vehicle (^) Theft Act of 1919, and stating: "When a rule of conduct is laid down in words that evoke in the common mind only the picture of vehicles moving on land, the statute should not be extended to aircraft... ." (em- phasis added)). This notion of a "picture" "evoke[d] in the common mind" maps very well onto the concept of prototype.
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1. Muscarello v. United States
In Muscarello the Court was asked to interpret a statute calling for a five-year mandatory prison term for a person who "uses or carries a firearm" "during and in relation to" a "drug trafficking crime."" Frank Muscarello was convicted on drug charges after he was shown to have transported a gun in the locked glove compartment of his car to a drug deal. The question presented was whether that counted as "carrying" under the statute. Both the majority (Justice Breyer) and dissenting (Justice Ginsburg) opinions agreed that the proper interpretation of "carries a firearm" came down to the "ordinary (^) English meaning" of that "phrase."^54 Yet neither opinion settled on (^) a single sense of "ordinary." Instead, both opinions slide back and forth along the continuum, without acknowledging that they are doing so. At some points Justice Breyer seems to employ a merely "common" sense of ordinary. For example, he asserts that the transport in a vehicle sense of carry is ordinary given that "many" - "perhaps more than one-third" - of the instances of carrying a firearm in the New York Times and U.S. News databases reflect that sense,S and he concludes that "the word 'carry' in its ordinary sense includes car- rying in a car."^56 Yet elsewhere Justice Breyer seems to speak of the car-carrying sense as most frequent. He reasons that 1) the "ordinary English" sense of carry is to transport it in a vehicle; 2) the (^) bear personally sense is "special"; and 3) (^) "we believe Congress intended to use the word in its primary sense and not in this latter, special way."^57 Justice Ginsburg's dissent is also inconsistent. In concluding that the person- ally bearing sense is ordinary, Justice Ginsburg asserts that it is "hardly implau- sible, nor at odds with an accepted meaning" of the statutory terms. 8 That is the language of possibility or commonality.' Elsewhere, however, Justice Ginsburg seems to speak in terms of personally bearing as the most frequent sense of the
53. Muscarello v. United States, 524 U.S. 125, 126 (1998) (quoting^^18 U.S.C.^ §^ 924(c)(1)(A) (2012)).
54. Id. at 127; id. at 139 (Ginsburg, J.,^ dissenting).
ss. Id. at^^129 (majority^ opinion).
56. Id. at 131 (emphasis added). 57. Id. at 128 (emphasis^ added). 58. Id. at 149 (Ginsburg, J., dissenting) (emphasis^ added). 59. Id. at 143-44 (asserting "that^ 'carry'^ is^ a^ word^ commonly used to^ convey^ various^ messages,' and that it "could mean" either personally bear or transport in a vehicle).
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term-in noting, in response to Justice Breyer's statistics, "what meaning showed up some two-thirds of the time."^60
2. Taniguchi v. Kan Pacific Saipan, Ltd.
Taniguchi was a personal injury case.^61 The plaintiff was a Japanese baseball player suing for medical expenses and lost income from contracts he was unable to honor as a result of injuries at the defendant's resort.^62 The defense "paid to have various documents translated from Japanese to English,"^63 and when the district court dismissed Taniguchi's case on summary judgment, the defense submitted a request for compensation for the amounts it paid for document translation. As in Muscarello, the Taniguchi case came down to ordinary meaning. Here the operative language was from a statute allowing the prevailing party in federal litigation to recover certain costs, including those incurred by an "inter- preter."^64 This case also seems to turn on the operative notion of ordinary meaning. Writing for the majority, Justice Alito concludes that the ordinary sense of inter- preter is oral translator: "an interpreter is normally understood as one who trans- lates orally from one language to another."^65 While justice Alito says that written translator is possible, he concludes that this is "hardly a common or ordinary meaning."^66 Indeed, Justice Alito characterizes the written translator notion of in- terpreter as "obsolete," citing^ dictionaries to^ support^ that^ conclusion.6 7 Justice Ginsburg's dissent acknowledges that interpreter "commonly refers to translators of oral speech" but concludes that the term "more than occasionally" is "used to encompass those who translate written speech as well."^68 This is the core basis of the view of the Taniguchi dissenters. They do not expressly disagree with Justice Alito's assertion that the oral translator notion is most common; they
6o. Id. at 143.
61. Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560 (2012). 62. Id. at 562. 63. (^) Id. at (^) 563. 64. Id. at 562. 65. Id. at 569. 66. Id. 67. Id. 68. Id. at 576 (Ginsburg, J., dissenting).
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at the time of the statute's enactment. (^) He says that these dictionaries show that " [t]his (^) was a common understanding of the term when the term 'harbor' was first added to the statute in 1917, and when the statute was amended and the term retained in 1952."
What can we learn from these cases? Our judges purport to be speaking of a consistent, common sense of ordinary meaning. But they switch back and forth between different senses of ordinary meaning, usually without acknowledging the inconsistency. Sometimes (as in Muscarello) judges embrace varying senses of ordinary meaning within a single opinion. Elsewhere (as in Taniguchi and Costello) the seemingly nuanced distinction between different senses of ordinary meaning becomes outcome-determinative. This is problematic-not just for statutory interpretation, but also for the rule of law."
B. OperationalShortcomings
The theoretical deficiencies identified above are one element of the problem. Another is operational -in the way we seek to identify or measure the ordinary meaning of statutory terms. Typically, this assessment is made at a gut level, on the basis of a judge's linguistic intuition, without recognition of the empirical nature of the question. A judge considering the prohibition (^) on vehicles in the park, for example, would reject out of hand the notion that the ordinance extends to pets, insisting (without further analysis or support) that the infection carrier sense of vehicle is an outlier- an extraordinary meaning. A parallel conclusion would be likely in response to an attempt to extend the no vehicles ordinance to bicycles. We under- stand vehicle to encompass a conveyance on wheels, but again a court seems likely to jump to the conclusion that the ordinary sense of vehicle is motor vehicle, and that a bicycle does not count. These conclusions seem uncontroversial. But the judge who makes them is making an empirical assessment. Gut-level empirics probably will not bother us if they go only to a holding that a pet or bicycle is not a vehicle prohibited in the
77. Id. (emphasis added) (first citing WEBSTER'S^ NEW^ INTERNATIONAL DICTIONARY^ OF^ THE^ ENG- LISH LANGUAGE 981 (1917) (defining "harbor" as "[t]o afford lodging to; to entertain as a guest; to shelter; to receive; to give refuge to"); and then citing WEBSTER'S NEW COLLEGIATE DICTIONARY 376 (John P. Bethel et al. eds., 1953) (defining "harbor" as "to entertain as a guest; to shelter; to give a refuge to")). 78. See Baude & Sachs, supra note 3, at (^) 1089-90 (noting that "we have to decide which meaning, produced by which theory of meaning, we ought to pick").
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JUDGING ORDINARY MEANING
park. But what about (^) a motorized scooter or a golf cart? These are harder ques- tions. And here we may have more cause for concern about the lack of transpar- ency and determinacy. With this in mind, judges sometimes turn to other grounds for their assess- ment of ordinary meaning, looking up a word in a dictionary or even turning to the word's etymology. A common use of a dictionary involves simple cherry- picking. "Instead of acknowledging and rejecting contrary senses of a statutory term, judges tend to ignore them-identifying only the sense of a word they deem ordinary without acknowledging (^) any others."" As to vehicle, for example, a judge might simply cite a definition (^) referring to an automobile and assert, without more, that the term's ordinary meaning does not encompass a motor scooter, or maybe even a golf cart. That is troubling - a judge who cherry-picks a preferred dictionary definition while ignoring an alternative is misusing the dictionary. Some judges, to their credit, are more transparent. Instead of ignoring a con- trary definition- the conveyance on wheels notion of vehicle, for example - a judge may acknowledge competing senses but find a basis for embracing one as ordi- nary. For example, a judge might prefer the definition that appears first in a dic- tionary's list of senses, or cite the etymology of the statutory term. Neither of these approaches is defensible, however, for reasons explained immediately be- low in our critique of the Court's ordinary meaning analysis in Muscarello and Taniguchi. Costello, on the other hand, acknowledges some of the problems we identify and turns to Google, albeit in a manner that raises a new set of problems.
1. Muscarello v. United States
The Muscarello majority invokes both sense ranking and etymology in sup- port of its holding. Justice Breyer acknowledges that carry can be understood to mean either transport in a vehicle or bear on your person.o But he embraces the
79. State v. Rasabout,^2015 UT^72 ¶^ 53,^356 P. 3 d^ 1258,^1274 (Lee,^ Associate^ C.J.,^ concurring^ in^ part and concurring in the judgment); see also, e.g., Kovach v. Zurich Am. Ins. Co., 587 F. 3 d 323, 346 (6th Cir. 2009) (McKeague, J.,^ dissenting)^ (criticizing^ the majority^ for^ ignoring other definitions in basing its presentation of the "ordinary meaning" of "accidental" on one defini- tion without regard to others); Konop v. Hawaiian Airlines, Inc., 302 F. 3 d 868, 878 ( 9 th Cir. 2002) (ignoring broader definitions in favor of a narrow definition as "ordinary meaning" of "intercept"); United States v. Warner Bros. Well Drilling, No 89-5494, 1990 WL 37610, at *2-3 (6th Cir. Apr. 3, 1990) (citing only one definition of (^) "operator" in determining the ordi- nary meaning, even though opposing definitions existed). 8o. Muscarello v. United States, 524 U.S. 125, 128 (1998).
