A couple of decades ago, Oakland Athletics general manager Billy Beane revolutionized baseball. In constructing the Athletics’ roster of players, Beane employed analytics and data to exploit market gaps in the Major League Baseball labor economy—an innovative strategy. It worked. In 2002, Beane’s Athletics won over 63% of their games and easily made the playoffs on a shoestring budget. Michael Lewis’s book Moneyball—which later became a movie—chronicles the 2002 Oakland Athletics season as a triumph of empirical analysis in baseball. But when other teams jumped into the fray, attempting to reorient their rosters entirely through analytics, many found limited success. The key insight to be gleaned from Moneyball is that analytics has a place in roster construction; at the same time, the last twenty years of baseball show that analytics are not everything.
In Testing Textualism’s “Ordinary Meaning”, Professor Tara Leigh Grove resists the empiricists’ takeover of a wholly different sport: interpretation of statutory text. Professor Grove begins her piece by noting that “[s]cholarship on statutory interpretation has taken an empirical turn.” In particular, scholars have employed empirical methods—e.g., surveys—to ascertain “ordinary meaning.” For these commentators, “ordinary meaning” is an empirical fact, “thereby justifying efforts to test textualism.” (Textualism is a theory of statutory interpretation, popularized by Justice Antonin Scalia, by which jurists interpret statutes according to the statutes’ “ordinary meaning.”) But in Professor Grove’s telling, “ordinary meaning” is also a legal concept that raises normative questions about law interpretation.
Amid a rush of empirical scholarship on textualism, Professor Grove takes up the mantle of law. The initial introduction of empirics into the practice of textualism was like Billy Beane’s initial success with the Moneyball-driven Athletics: a revolutionary innovation that changed the way we think about the enterprise of statutory interpretation. But a singular focus on empirical analysis obscures the true nature of the search for ordinary meaning, as Professor Grove ably demonstrates in her excellent Foreword to the George Washington Law Review’s Annual Review of Administrative Law. Without a recognition that “ordinary meaning” is a legal concept, one cannot properly ascertain what a law’s “ordinary meaning” actually is.
Professor Grove’s piece begins by explaining what she means when stating that “ordinary meaning” is a legal concept. In the first section, she contrasts “ordinary” and “technical” meaning. For example, although the “ordinary meaning” of the term “standing” to a lay reader might be the opposite of “sitting,” a well-trained lawyer will recognize that the term refers “to one requirement for launching a suit in federal court.” In some cases, courts will take the words of a statute in their ordinary sense; in others, they will read words in their technical sense. To make this determination, a court must “address certain legal questions,” including (1) which sources are relevant to determining the meaning of the text and (2) how the structure of the surrounding statute informs the inquiry.
Here, Professor Grove allows that the search for ordinary meaning has an empirical component. Ignoring this reality would be like signing a free agent baseball player without even glancing at his prior statistics. But as Professor Grove explains, “when legal disputes arise, a good deal of the search for ‘ordinary meaning’ will depend on legal considerations.” For this reason, textualists “adopt legal rules to choose which ordinary meaning is preferable,” with many prominent scholars and jurists emphasizing “the understanding of the objectively reasonable person.” Professor Grove notes the divides within the textualist movement about the content of these legal rules (a subject she has explored in other scholarship). Notwithstanding these divides, Professor Grove points out that textualists generally all treat “ordinary meaning” as a legal, normative—not empirical—inquiry.
Part II of Professor Grove’s piece lays out how some scholars have called this approach into question. These scholars’ method of determining “ordinary meaning” is to “identify empirically the use of a term or phrase that is the most common or popular.” One way to accomplish this task is a survey of the broader public. Professor Grove contends that such reliance on empirical methods is misguided for at least two reasons.
First, the “[s]cholarship that relies on survey methods appears to assume that the ‘ordinary meaning’ of a statutory provision depends on the views of the general public.” But when it comes to highly technical statutes that are aimed at federal agencies and regulated parties, that assumption may not hold true. Rather, Professor Grove submits that when one treats “ordinary meaning” as a legal concept, “the hypothetical reasonable reader can be adjusted to comport with the statute at issue.”
Second, the shift to empiricism risks conflating the modern era with the relevant interpretive timeframe. As Professor Grove asks: “how can one determine by surveying the public in 2022 the meaning of a statute enacted in, say, 1871, 1920, or 1964?” The nature of empirical work introduces what Professor Grove calls a “temporal complication” into the method’s workability when searching for “ordinary meaning.”
In Part III, Professor Grove notes the implications of her thesis. To start, textualists have some serious disputes to resolve about which legal tools should be used to discern ordinary meaning. Moreover, “[i]f ordinary meaning is a legal concept,” jurists may need to be more cautious when using “homey examples” (like Justice Scalia’s analogy of “using a cane” to “using a firearm” in his Smith v. United States dissent)—a frequent practice. Furthermore, Professor Grove acknowledges that her work raises some questions about “fair notice”—“itself a legal concept,” as she points out.
Without question, the empiricist turn in the statutory interpretation scholarship has deepened our understanding of how to ascertain “ordinary meaning.” Professor Grove merely warns against overreliance on empiricism in statutory interpretation, just as any modern baseball executive would caution against an overreliance on analytics in building a baseball roster. In describing “ordinary meaning” as a legal concept, Professor Grove refocuses statutory interpretation on the legal and normative issues it necessarily raises. Her piece is worth a read.
