213
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 dierent
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 oer 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 sta 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.
214 COLUMBIA LAW REVIEW [Vol. 122:213
stand legal rules. We see our experiments as a first step in that new
direction.
I
NTRODUCTION ......................................................................................... 215
I. A FRAMEWORK FOR TESTING INTERPRETIVE PRINCIPLES ..................... 226
A. Testing How Canons Are Triggered ............................................ 226
1. Context and Interpretation .................................................... 228
2. The Categories of Interpretive Canons .................................. 229
B. Category One Canons ................................................................... 232
C. Category Two Canons ................................................................... 235
D. Empirical Study of Interpretive Canons ...................................... 239
1. Interpretive Canons as an Incomplete Set ............................. 239
2. Poorly Defined Triggers .......................................................... 241
3. Uncertain Categorization and Conflicting Canons ............... 243
II. EXPERIMENTAL STUDY OF INTERPRETIVE CANONS .............................. 245
A. A Description of the Study ............................................................ 246
B. Testing Category One Canons ...................................................... 249
1. Gender Canons ....................................................................... 250
2. Number Canons ...................................................................... 252
3. Conjunctive and Disjunctive Canons ..................................... 252
4. Mandatory and Permissive Canons ........................................ 253
5. Oxford Comma ....................................................................... 254
6. Presumption of Nonexclusive “Include” ............................... 255
7. Series-Qualifier Canon and Rule of the Last Antecedent ..... 256
C. Testing Category Two Canons ...................................................... 257
1. Noscitur a Sociis ......................................................................... 258
2. Ejusdem Generis ........................................................................ 259
3. Expressio Unius Est Exclusio Alterius ......................................... 260
4. Quantifier Domain Restriction Canon ................................... 261
III. DO THE CANONS REFLECT ORDINARY MEANING? ............................... 262
A. Broader Empirical Findings ......................................................... 262
1. Overall Pattern of Canon Endorsement ................................ 262
2. Confidence Ratings ................................................................. 264
3. Relationships Among the Implicit Applications of Dierent
Canons ..................................................................................... 265
B. Extending the Study With a Law Student Sample ....................... 266
C. General Conclusions From the Experimental Studies ................ 270
IV. RETHINKING ORDINARY MEANING AND INTERPRETIVE CANONS ......... 274
A. Reframing Ordinary Meaning: The Meaning of Rules ............... 277
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 215
1. Empirical Research and the Significance of Rules ................ 278
2. The Ordinary Meaning of Rules ............................................. 279
B. The Interpretive Canons’ Anti-Literalism .................................... 281
1. Current Debates About Literalism in Statutory
Interpretation .......................................................................... 281
2. Interpretive Canons That Create Nonliteral Meanings ........ 286
3. Discovering New Canons That Create Nonliteral Meanings. 287
C. A New Law and Language Research Program ............................. 288
1. Discovering Hidden Canons: Are There More Canons? ....... 288
2. Ordinary Meaning and Demographics .................................. 290
3. Current and Future Empirical Testing of Interpretive
Canons ..................................................................................... 292
CONCLUSION ............................................................................................. 296
I
NTRODUCTION
“American courts have no intelligible, generally accepted, and con-
sistently applied theory of statutory interpretation.”
1
This Hart and Sacks
lament is frequently quoted but misleading.
2
Despite extensive and ongo-
ing debate about how to interpret statutes, most plausible theories share
one common principle: a commitment to “ordinary meaning.”
3
This Essay
focuses on statutory interpretation, but its theory and empirical analysis
may extend more broadly. “Ordinary meaning” plays a crucial role in in-
terpreting most legal texts: from contracts and wills, to treaties and the
U.S. Constitution.
4
Normatively, the doctrine often finds justification for
1. Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the
Making and Application of Law 1169 (William N. Eskridge, Jr. & Philip P. Frickey eds.,
1994).
2. See David S. Louk, The Audiences of Statutes, 105 Cornell L. Rev. 137, 150 (2019)
(“A common trope in discussions of statutory interpretation theory is that American judges
lack a principled method of interpreting statutes, something legal theorists and members
of the judiciary alike have long recognized.”).
3. See Brian G. Slocum, Ordinary Meaning: A Theory of the Most Fundamental
Principle of Legal Interpretation 1–3 (2015) [hereinafter Slocum, Ordinary Meaning]; see
also William N. Eskridge, Interpreting Law: A Primer on How to Read Statutes and the
Constitution 33–41 (2016) [hereinafter Eskridge, Interpreting Law]; Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 33 (2012); Lawrence M.
Solan, The Language of Statutes: Laws and Their Interpretation 53 (2010).
4. See, e.g., Cal. Civ. Code § 1644 (2018) (“The words of a contract are to be
understood in their ordinary and popular sense . . . .”); Cal. Prob. Code § 21122 (2018)
(“The words of an instrument are to be given their ordinary and grammatical meaning
unless the intention to use them in another sense is clear and their intended meaning can
be ascertained.”); Curtis J. Mahoney, Note, Treaties as Contracts: Textualism, Contract
Theory, and the Interpretation of Treaties, 116 Yale L.J. 824, 829–32 (2007) (describing the
216 COLUMBIA LAW REVIEW [Vol. 122:213
“ordinary” language principles based on notice, predictability, and the no-
tion that the public should be able to read, understand, and rely upon
legal texts.
5
Increasingly, the Supreme Court has emphasized that the interpretive
process begins by giving statutory language its ordinary meaning.
6
For
some, interpretation begins and ends with ordinary meaning. Modern tex-
tualists believe that ordinary meaning should significantly constrain inter-
pretation; other considerations enter only if ordinary meaning is indeter-
minate.
7
Purposivists agree that ordinary meaning is at least relevant to
interpretation,
8
alongside other criteria including legislative intent (typi-
cally ascertained via legislative history).
9
Few deny that ordinary meaning
is regularly deployed by all members of the current Supreme Court.
10
Con-
sider the Court’s recent landmark decision in Bostock v. Clayton County.
11
The Justices divided sharply, but all the opinions—both the majority and
two dissents—invoked “ordinary meaning” in determining whether the
term “sex” in Title VII’s antidiscrimination provision includes sexual
orientation and transgender discrimination.
12
Not surprisingly, cutting-
Supreme Court’s recent approach to treaty interpretation, which often focuses on the plain
meaning of terms in a treaty); Lawrence B. Solum, The Constraint Principle: Original
Meaning and Constitutional Practice 3 (Apr. 3, 2019), https://ssrn.com/abstract=2940215
[https://perma.cc/P7JR-9RDM] (unpublished manuscript) (“The dominant strain of con-
temporary originalism emphasizes the public meaning of the constitutional text . . . .”).
5. See William N. Eskridge Jr., Brian G. Slocum & Stefan Th. Gries, The Meaning of
Sex: Dynamic Words, Novel Applications, and Original Public Meaning, 119 Mich. L. Rev.
1503, 1516–17 (2021) [hereinafter Eskridge et al., The Meaning of Sex].
6. See, e.g., Bostock v. Clayton County, 140 S. Ct. 1731, 1738 (2020) (“This court
normally interprets a statute in accord with the ordinary public meaning of its terms . . . .”);
Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019) (“In statutory
interpretation disputes, a court’s proper starting point lies in a careful examination of
the ordinary meaning and structure of the law itself.”).
7. See, e.g., Victoria Nourse, Textualism 3.0: Statutory Interpretation After Justice
Scalia, 70 Ala. L. Rev. 667, 669 (2019) (acknowledging but questioning the premise that
ordinary meaning constrains as between results in a case).
8. See, e.g., Eskridge, Interpreting Law, supra note 3, at 35 (“There are excellent
reasons for the primacy of the ordinary meaning rule.”).
9. See Robert A. Katzmann, Judging Statutes 31–35 (2014) (explaining the
purposivist approach to statutory interpretation).
10. As Justice Elena Kagan famously declared of the Court, “We’re all textualists now.”
Harvard Law School, The Scalia Lecture: A Dialogue with Justice Kagan on the Reading of
Statutes, YouTube, at 08:29 (Nov. 25, 2015), https://youtu.be/dpEtszFT0Tg (on file with
the Columbia Law Review). This statement depends upon an essential ambiguity: whether
one begins or ends with the text.
11. 140 S. Ct. 1731.
12. Id. at 1750 (Gorsuch, J.) (“[T]he law’s ordinary meaning at the time of enactment
usually governs . . . .”); id. at 1767 (Alito, J., dissenting) (“The ordinary meaning of discrim-
ination because of ‘sex’ was discrimination because of a person’s biological sex, not sexual
orientation or gender identity.”); id. at 1825 (Kavanaugh, J., dissenting) (“[C]ourts must
follow ordinary meaning, not literal meaning.”).
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 217
edge statutory interpretation theory has turned its focus on “ordinary
meaning.”
13
In fact, “ordinary meaning” is likely to grow in importance. Figure 1
reflects citations to “ordinary meaning,” “plain meaning,” and “legislative
history” across six million U.S. cases in Harvard Law School’s Caselaw Ac-
cess Project. Over the past fifty years, citation to “ordinary meaning” has
tripled. By way of comparison, citation to “legislative history” has halved
from its peak.
F
IGURE
1.
U.S.
C
ASE
L
AW
C
ITATIONS TO
O
RDINARY
M
EANING
,
P
LAIN
M
EANING
,
AND
L
EGISLATIVE
H
ISTORY
14
These patterns provide a rough impression of interpretive trends.
More robust empirical work supports the same conclusion, particularly in
high-profile Supreme Court cases. A recent study of the Supreme Court’s
use of interpretive tools found that between 2005 and 2017, the Roberts
Court relied on “text” and “plain meaning” in 41% of all opinions and
50% of majority opinions.
15
The Court relied on text more than intent,
13. E.g., Tara Leigh Grove, Which Textualism?, 134 Harv. L. Rev. 265 (2020); Anita S.
Krishnakumar, MetaRules for Ordinary Meaning, 134 Harv. L. Rev. Forum 167 (2021)
[hereinafter Krishnakumar, MetaRules]; Thomas R. Lee & Stephen C. Mouritsen, Judging
Ordinary Meaning, 127 Yale L.J. 788 (2018); James A. Macleod, Finding Original Public
Meaning, 56 Ga. L. Rev. (forthcoming 2021), https://ssrn.com/abstract=3729005 [https://
perma.cc/8DCR-EFK6] [hereinafter Macleod, Finding Original Public Meaning]; Slocum,
Ordinary Meaning, supra note 3; Lawrence M. Solan & Tammy Gales, Finding Ordinary
Meaning in Law: The Judge, the Dictionary, or the Corpus?, 1 Int’l J. Legal Discourse 253
(2016); Kevin P. Tobia, Testing Ordinary Meaning, 134 Harv. L. Rev. 726 (2020)
[hereinafter Tobia, Testing Ordinary Meaning]; Kevin Tobia & John Mikhail, Two Types of
Empirical Textualism, 86 Brook. L. Rev. 461 (2021).
14. Caselaw Access Project, Harv. L. Sch. (2018) (retrieved Nov. 2, 2021).
15. Anita S. Krishnakumar, Cracking the Whole Code Rule, 96 N.Y.U. L. Rev. 76, 97
(2021).
218 COLUMBIA LAW REVIEW [Vol. 122:213
purpose, or legislative history.
16
The Court has recently gained three new
textualists, as lower federal courts welcome a new cohort of exceptionally
young judges, similarly committed to textualism.
17
So how do courts determine a statute’s “ordinary meaning”? Some-
times the debate centers on the meaning of individual terms,
18
with judges
increasingly relying on tools like dictionaries.
19
Dictionaries provide evi-
dence about how individual terms are used in nonlegal communications.
20
But statutes contain complex expressions, with terms embedded in specific
contexts.
21
This complexity raises dicult questions about the relationship
between the conventional meaning of a term and its context.
Often, contextual patterns are so frequently repeated that they are
taken to trigger regular assumptions about “ordinary meaning.” Take the
well-known case of McBoyle v. United States, which required the Court to
determine whether an airplane is a “vehicle” under the National Motor
Vehicle Theft Act.
22
This Act punishes those who knowingly transport a
stolen “automobile, automobile truck, automobile wagon, motor cycle, or
16. See id.
17. See John Gramlich, How Trump Compares With Other Recent Presidents in
Appointing Federal Judges, Pew Rsch. Ctr. (Jan. 13, 2021), https://www.pewresearch.
org/fact-tank/2021/01/13/how-trump-compares-with-other-recent-presidents-in-
appointing-federal-judges/ [https://perma.cc/R7L9-4D8P]; Moiz Syed, Charting the Long-
Term Impact of Trump’s Judicial Appointments, ProPublica (Oct. 30, 2020), https://
projects.propublica.org/trump-young-judges/ [https://perma.cc/W3AX-YRR3] (explaining
that President Trump appointed a record number of federal judges and that his appointees
to the Supreme Court and appeals courts are younger than appointees by presidents going
back to President Nixon by about four years on average); see also Jason Zengerle, How the
Trump Administration Is Remaking the Courts, N.Y. Times Mag. (Aug. 22, 2018), https://
www.nytimes.com/2018/08/22/magazine/trump-remaking-courts-judiciary.html (on file
with the Columbia Law Review) (noting President Trump’s “commit[ment] to . . .
nominating and appointing judges that are committed originalists and textualists” (internal
quotation marks omitted) (quoting Donald McGahn, White House counsel to President
Trump)).
18. See Victoria Nourse, Misreading Law, Misreading Democracy 18 (2016)
[hereinafter Nourse, Misreading Law] (arguing that there are almost always two apparent
meanings for key terms).
19. See, e.g., James J. Brudney & Lawrence Baum, Oasis or Mirage: The Supreme
Court’s Thirst for Dictionaries in the Rehnquist and Roberts Eras, 55 Wm. & Mary L. Rev.
483, 493 (2013) (arguing that dictionaries have been “overused and abused by the Court”).
20. Although dictionaries can provide general information about word meanings, the
judicial practice of relying on dictionaries to define statutory terms is fraught with problems.
See Ellen P. Aprill, The Law of the Word: Dictionary Shopping in the Supreme Court, 30
Ariz. St. L.J. 275, 297–30 (1998) (stating that the level of “linguistic analysis” performed by
courts rarely rises above “dictionary shopping”).
21. See generally Peter M. Tiersma, Some Myths About Legal Language, 2 Law,
Culture & Humanities 29 (2005) [hereinafter Tiersma, Myths] (explaining that the way
legal texts are drafted adds to their complexity).
22. 283 U.S. 25, 25–26 (1931).
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 219
any other self-propelled vehicle not designed for running on rails.”
23
Jus-
tice Oliver Wendell Holmes Jr., writing for the Court, found that the stat-
ute did not apply to an aircraft: An airplane is not a vehicle.
24
If one focuses on the term “vehicle,” the Court’s conclusion might
seem puzzling. Isn’t an airplane a vehicle?
25
But any puzzlement lessens
when we consider the ordinary meaning of “vehicle” in context. The
general words, “any other . . . vehicle,” come after a long list of more spe-
cific terms: automobile, automobile truck, automobile wagon, and motor-
cycle.
26
Perhaps, based on this context, an ordinary reader would under-
stand the statutory rule to be more specific: “Vehicle” refers to
automobiles, motorcycles, and similar entities, like buses, that are
designed for traveling on land. But vehicles of a very dierent nature (e.g.,
canoes or airplanes) are not “vehicles” in this context.
27
“Vehicle” thus
communicates something dierent when it is placed at the end of a list in
a rule. The ejusdem generis canon captures this intuition: When general
words follow an enumerated class of things, the general words should be
construed to apply to things of the same general nature.
28
Thus, a statute
referring just to “vehicles” may include airplanes as vehicles, but a statute
that includes “vehicles” at the end of a list of specific examples might con-
vey a dierent, narrower meaning.
Judges rely heavily on dozens of interpretive principles like ejusdem
generis.
29
These principles are so long standing and frequently applied that
23. See id.
24. See id. at 26.
25. Some have questioned whether the ordinary meaning of “vehicle” includes air-
planes. See Lee & Mouritsen, supra note 13, at 840. Nevertheless, even if some doubt exists,
the specific context in McBoyle significantly bolstered the Court’s claim that an airplane was
not a vehicle. See McBoyle, 283 U.S. at 26.
26. McBoyle, 283 U.S. at 26.
27. For Justice Brett Kavanaugh, even the question whether a baby stroller is a vehicle
in this context may be dicult. See Bostock v. Clayton County, 140 S. Ct. 1731, 1825 (2020)
(Kavanaugh, J., dissenting) (asserting that a “statutory ban on ‘vehicles in the park’ would
literally encompass a baby stroller” but that “the word ‘vehicle,’ in its ordinary meaning,
does not encompass baby strollers”).
28. See Larry Alexander, Bad Beginnings, 145 U. Pa. L. Rev. 57, 65 (1996) (“When
general words follow specific words in a statute, the general words are to be given a ‘sense
analogous to that of the particular words.’” (quoting Scott Brewer, Exemplary Reasoning:
Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy, 109 Harv. L.
Rev. 923, 937 (1996))); see also infra section I.C.
29. See William N. Eskridge, Jr., Philip P. Frickey, Elizabeth Garrett & James J.
Brudney, Cases and Materials on Legislation and Regulation: Statutes and the Creation of
Public Policy 1195–215 (5th ed. 2014) [hereinafter Eskridge et al., Cases and Materials
2014] (identifying at least 161 dierent interpretive canons).
220 COLUMBIA LAW REVIEW [Vol. 122:213
they are referred to as “canons” of interpretation.
30
In fact, judges cite in-
terpretive canons more frequently now than in the past.
31
Yet, some courts
and commentators also criticize canons as unjustified.
32
Debates about canons’ justification center on two very dierent em-
pirical questions. One concerns whether legislative authors contemplate
the canon when drafting.
33
The other concerns whether the canon reflects
how ordinary people reading the statute would understand the language.
34
William Eskridge and Victoria Nourse have described these justifications
as grounded in the “production” versus the “consumer” economies of
statutory interpretation.
35
The production economy emphasizes the stat-
ute’s authors; the consumer economy emphasizes its readers.
36
The empirical claim that canons reflect the meanings of the statute’s
producers or authors motivated Abbe Gluck and Lisa Bressman’s seminal
work: Statutory Interpretation from the Inside.
37
In 2013, Gluck and Bressman
published a survey of 137 congressional staers from both chambers of
30. See id. at 1195.
31. See Anita S. Krishnakumar & Victoria F. Nourse, The Canon Wars, 97 Tex. L. Rev.
163, 167 (2018) (arguing that recent Supreme Court cases have focused extensively on the
canons of construction); Nina A. Mendelson, Change, Creation, and Unpredictability in
Statutory Interpretation: Interpretive Canon Use in the Roberts Court’s First Decade, 117
Mich. L. Rev. 71, 73 (2018) (“The lion’s share of Roberts Court majority opinions engages
at least one interpretive canon in resolving a question of statutory meaning.”).
32. See, e.g., Jesse M. Cross, When Courts Should Ignore Statutory Text, 26 Geo.
Mason L. Rev. 453, 459–60 (2018) (arguing that many canons of construction must be
modified or discarded because they are inaccurate).
33. See, e.g., Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation From
the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons:
Part I, 65 Stan. L. Rev. 901, 906–07 (2013) [hereinafter Gluck & Bressman, Statutory
Interpretation Part I] (surveying congressional sta and finding that many either ignore or
reject certain canons).
34. Cf. William N. Eskridge Jr. & Victoria F. Nourse, Textual Gerrymandering: The
Eclipse of Republican Government in an Era of Statutory Populism, N.Y.U. L. Rev.
(forthcoming 2021) (manuscript at 4), https://ssrn.com/abstract=3809925 [https://
perma.cc/SE3M-CGP4] (noting some scholars’ concern that canons may be manipulated
to “create an arbitrary façade of plain meaning”). These explanations of the justifications
are slightly oversimplified. In each case, it is possible that a canon might be justified even if
the authors or audience could not themselves name the canon. For example, even if
legislative drafters are unfamiliar with the term “ejusdem generis,” it might be that applying
the rule nevertheless helpfully captures features of intended meaning. Similarly, most non-
lawyers would be unfamiliar with the term “ejusdem generis.” But it might be that the rule
nevertheless helps explain how ordinary people understand statutory language. In each
case, the key empirical question is about whether applying the canon brings interpreters
closer to meaning—intended or ordinary.
35. See id. at 2.
36. See id.
37. Gluck & Bressman, Statutory Interpretation Part I, supra note 33, at 905.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 221
Congress on topics relating to statutory interpretation, including the staf-
fers’ knowledge and use of interpretive canons.
38
The survey, designed to
explore the role the realities of legislative drafting should play in the the-
ories and doctrines of statutory interpretation, revealed that there are
some canons the drafters know and use, some the drafters reject in favor
of other considerations, and some the drafters do not know as rules but
that seem to accurately reflect how Congress drafts.
39
Critics of Gluck and Bressman, however, maintain that “insiders’”
views on canons are not the relevant measure; such studies simply seek to
unearth an unfathomable congressional mind.
40
Rather than focus on the
producers of statutes, they urge focus on the consumers of statutes, the
ordinary reader. As Justice Samuel Alito just urged in the 2020–2021 Term,
canons are only useful if they reflect ordinary meaning.
41
That is, a canon’s
validity comes from ordinary people’s linguistic practices. The key ques-
tion would be: Is the canon a guide to how ordinary people would under-
stand the language in the statute? For example, when considering the stat-
ute at issue in McBoyle, would an ordinary person implicitly understand
that the scope of “any other . . . vehicle” is partly restricted—meaning not
literally any vehicle but only those suciently similar to the enumerated
38. See Lisa Schultz Bressman & Abbe R. Gluck, Statutory Interpretation From the
Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II,
66 Stan. L. Rev. 725, 728 (2014) [hereinafter Bressman & Gluck, Statutory Interpretation
Part II]; Gluck & Bressman, Statutory Interpretation Part I, supra note 33, at 905–06. Judges
have cited the Gluck and Bressman studies for the proposition that canons should not be
used in interpretation since they are not deployed by drafters. See, e.g., James v. Heinrich,
960 N.W.2d. 350, 380 (Wis. 2021) (Dallett, J., dissenting). Our study focuses on a dierent
population, ordinary readers, and suggests that ordinary readers understand law
consistently with many (but not all) linguistic canons.
39. See Bressman & Gluck, Statutory Interpretation Part II, supra note 38, at 732–33.
In 2002, Victoria Nourse and Jane Schacter published the first case study of legislative
drafting by Senate Judiciary Committee staers, assuming that, of all congressional staers,
these were the “most likely to be schooled in the rules of clarity, canons of construction, and
statutory interpretation.” Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative
Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 582 (2002). The authors found
that canons were not a “central part” of the drafting process. Id. at 614. As one staer
explained, “[W]e are conscious of . . . what a court will do, but not at the level of expressio
unius.” Id. at 601. In future work, we hope to ask congressional staers the same questions
we have posed to ordinary readers in this study.
40. John F. Manning, Without the Pretense of Legislative Intent, 130 Harv. L. Rev.
2397, 2430–31 (2017); see also Amy Coney Barrett, Congressional Insiders and Outsiders,
84 U. Chi. L. Rev. 2193, 2200–01 (2017) (arguing that Gluck and Bressman take the position
of the “hypothetical insider who knows how Congress works” whereas the textualist insists
that the “relevant user of language be ordinary”); John F. Manning, Inside Congress’s Mind,
115 Colum. L. Rev. 1911, 1941 (2015) [hereinafter Manning, Inside Congress’s Mind]
(arguing that the Gluck and Bressman studies support skepticism about looking for answers
in Congress’s mind).
41. See Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1175 (2021) (Alito, J., concurring).
For the theoretical importance of ordinary meaning, see Slocum, Ordinary Meaning, supra
note 3, at 1–3.
222 COLUMBIA LAW REVIEW [Vol. 122:213
ones? If yes, this would support an empirically based justification for
ejusdem generis, grounded not in legislative intent or practice but in ordi-
nary meaning.
42
The Supreme Court increasingly relies on text and ordinary meaning
to resolve interpretive disputes, as do lower courts.
43
This calls for a com-
plement to Gluck and Bressman’s groundbreaking empirical work, namely
a new analysis of statutory interpretation from the outside. Recently, Chief
Justice John Roberts alluded to this intriguing possibility in oral argument:
[If] our objective is to settle upon the most natural meaning of
the statutory language to an ordinary speaker of English . . . the
most probably useful way of settling all these questions would be
to take a poll of 100 ordinary . . . speakers of English and ask
them what [the statute] means, right?
44
Such an approach was once considered beyond legal academics’ ca-
pacity,
45
but no more. There is a rich and growing literature in psychology,
linguistics, and cognitive science concerning people’s understanding of
language.
46
In law, the new field of “experimental jurisprudence” has
already demonstrated that scholars can conduct experiments to better
understand the ordinary cognition of law.
47
Thus far, those studies have
42. It would also suggest that “any vehicle” does not always mean literally any vehicle.
We propose a new ordinary meaning canon, the “quantifier domain restriction canon,” that
reflects this possibility. See infra section I.C.
43. See supra notes 6–17 and accompanying text (noting courts’ increasing reliance
on text and ordinary meaning).
44. Transcript of Oral Argument at 51–52, Facebook, Inc., 141 S. Ct. 1163 (No. 19-511),
https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/19-
511_l537.pdf [https://perma.cc/XEP7-QBE5].
45. See Adrian Vermeule, Interpretation, Empiricism, and the Closure Problem, 66 U.
Chi. L. Rev. 698, 701 (1999) (“Many of the empirical questions relevant to the choice of
interpretive doctrines are . . . unanswerable, at least at an acceptable level of cost or within
a useful period of time.”).
46. See, e.g., Dirk Geeraerts, Theories of Lexical Semantics 230 (2010) (“[N]ew word
senses emerge in the context of actual language use.”).
47. The field builds on work in experimental philosophy. See, e.g., Joshua Knobe &
Shaun Nichols, An Experimental Philosophy Manifesto, in Experimental Philosophy 3
(Joshua Knobe & Shaun Nichols eds., 2008); Stephen Stich & Kevin P. Tobia, Experimental
Philosophy and the Philosophical Tradition, in A Companion to Experimental Philosophy
5 (Justin Sytsma & Wesley Buckwalter eds., 2016). For an empirical study assessing the
replicability of experimental philosophy studies, see Florian Cova, Brent Strickland, Angela
Abatista, Aurélien Allard, James Andow, Mario Attie, James Beebe, Renatas Berniūnas,
Jordane Boudesseul, Matteo Colombo, Fiery Cushman, Rodrigo Diaz, Noah N’Djaye,
Nikolai van Dongen, Vilius Dranseika, Brian D. Earp, Antonio Gaitán Torres, Ivar
Hannikainen, José V. Hernández-Conde, Wenjia Hu, François Jaquet, Kareem Khalifa,
Hanna Kim, Markus Kneer, Joshua Knobe, Miklos Kurthy, Anthony Lantian, Shen-yi Liao,
Edouard Machery, Tania Moerenhout, Christian Mott, Mark Phelan, Jonathan Phillips,
Navin Rambharose, Kevin Reuter, Felipe Romero, Paulo Sousa, Jan Sprenger, Emile
Thalabard, Kevin Tobia, Hugo Viciana, Daniel Wilkenfeld & Xiang Zhou, Estimating the
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 223
focused on central legal concepts, such as causation,
48
consent,
49
intent,
50
reasonableness,
51
law itself,
52
and many others.
53
Other studies have
focused on how ordinary people understand word meanings or how they
would resolve specific interpretive disputes.
54
But, as the McBoyle case
suggests, the ordinary meaning of statutes does not arise solely from
individual word meanings, and commonly occurring types of context and
inferences are also important topics of study. Statutes are written in
sentences, which must be interpreted in light of relevant context in order
to understand the rules expressed. An important legal-interpretive
question concerns how ordinary people tend to understand this kind of
language.
This Essay takes a first step in this new direction: the empirical study
of interpretive canons from an ordinary meaning perspective. Surveying
ordinary people might seem straightforward, but designing useful experi-
ments requires very careful theory. In Part I, we develop a framework for
empirically testing interpretive canons. We describe the three relevant el-
ements of interpretive canons (triggering, application, and cancellation)
Reproducibility of Experimental Philosophy, 12 Rev. Phil. & Psych. 9 (2021). See generally
The Cambridge Handbook of Experimental Jurisprudence (Kevin Tobia ed., forthcoming).
48. See Joshua Knobe & Scott Shapiro, Proximate Cause Explained: An Essay in
Experimental Jurisprudence, 88 U. Chi. L. Rev. 165 (2021); James A. Macleod, Ordinary
Causation: A Study in Experimental Statutory Interpretation, 94 Ind. L.J. 957 (2019).
49. See Roseanna Sommers, Commonsense Consent, 129 Yale L.J. 2232 (2020).
50. See Markus Kneer & Sacha Bourgeois-Gironde, Mens Rea Ascription, Expertise
and Outcome Eects: Professional Judges Surveyed, 169 Cognition 139 (2017); Sydney
Levine, John Mikhail & Alan M. Leslie, Presumed Innocent? How Tacit Assumptions of
Intentional Structure Shape Moral Judgment, 147 J. Experimental Psych.: Gen. 1728 (2018).
51. See Christopher Brett Jaeger, The Empirical Reasonable Person, 72 Ala. L. Rev.
887 (2021); Kevin P. Tobia, How People Judge What Is Reasonable, 70 Ala. L. Rev. 293
(2018) [hereinafter Tobia, How People Judge What Is Reasonable].
52. E.g., Brian Flanagan & Ivar R. Hannikainen, The Folk Concept of Law: Law Is
Intrinsically Moral, Australasian J. Phil. (2020); Ivar R. Hannikainen, Kevin P. Tobia,
Guilherme da F. C. F. de Almeida, Ra Donelson, Vilius Dranseika, Markus Kneer, Niek
Strohmaier, Piotr Bystranowski, Kristina Dolinina, Bartosz Janik, Sothie Keo, Eglė
Lauraitytė, Alice Liefgreen, Maciej Próchnicki, Alejandro Rosas & Noel Struchiner, Are
There Cross-Cultural Legal Principles? Modal Reasoning Uncovers Procedural Constraints
on Law, Cognitive Sci., Aug. 2021, at 1.
53. Kevin P. Tobia, Law and the Cognitive Science of Ordinary Concepts, in Law and
Mind: A Survey of Law and the Cognitive Sciences 86 (2021) (examining the relationship
between folk psychology (laypeople’s commonsense understandings) and the law); Kevin P.
Tobia, Experimental Jurisprudence, 89 U. Chi. L. Rev. (forthcoming 2022),
https://ssrn.com/abstract=3680107 [https://perma.cc/XJW9-SYJV] [hereinafter Tobia,
Experimental Jurisprudence] (debunking myths about experimental jurisprudence and
arguing that it is a form of traditional jurisprudence rather than a social scientific
replacement of jurisprudence).
54. See, e.g., Omri Ben-Shahar & Lior Jacob Strahilevitz, Interpreting Contracts via
Surveys and Experiments, 92 N.Y.U. L. Rev. 1753, 1765 (2017); Shlomo Klapper, Soren
Schmidt & Tor Tarantola, Ordinary Meaning From Ordinary People (unpublished
manuscript) (on file with the Columbia Law Review).
224 COLUMBIA LAW REVIEW [Vol. 122:213
and explain that the triggering element is our focus. A canon’s “trigger”
is the linguistic condition making the canon applicable, such as a comma
or a certain word or type of phrase.
55
This focus, we argue, is necessary to
determine whether ordinary people implicitly apply an interpretive canon
in accordance with its definition. In addition, focusing on canon triggers
has the potential to help resolve longstanding interpretive problems that
have plagued courts, such as poorly defined canons and conflicts between
canons.
In Parts II and III, we implement our framework through a survey of
4,500 demographically representative people recruited from the United
States, as well as a sample of over one-hundred first-year U.S. law students.
The survey tested over a dozen interpretive canons.
56
Our study provides
crucial evidence for textualists and others committed to ordinary mean-
ing. Currently, judges and scholars assume that certain canons reflect or-
dinary meaning on the basis of intuition or tradition. The survey directly
addresses this fundamental empirical question about ordinary meaning:
Which (if any) of the interpretive canons actually reflect how ordinary peo-
ple understand language?
57
Part IV considers three broader implications of our work for statutory
interpretation theory. First, the results support a new approach toward “or-
dinary meaning” itself. There is great debate concerning whether that doc-
trine refers to the ordinary meaning of (1) “legal language” or (2) “ordi-
nary language.” We find that people intuitively apply canons across both
legal and ordinary rules. That is, surprisingly little turns on whether people
understand language as ordinary or legal, so long as it is language in a rule.
We suggest that the legal/ordinary language dichotomy obscures a more
fundamental aspect of the ordinary meaning doctrine: It is a doctrine
about ordinary understanding of language in rules. The canons do not nec-
essarily apply wherever there is “ordinary language” or “legal language”;
rather, they apply to interpretation of rules. A judge who fails to appreciate
the significance of “rule-like” contextual features may misinterpret
55. See infra section I.A.
56. The canons tested include what we term “Category One” canons, which have
relatively straightforward triggering conditions, as well as “Category Two” canons, which
have more complex triggering conditions. For a list of the canons and their definitions, see
infra Part II.
57. The survey posed hypothetical scenarios, corresponding to each canon’s triggering
conditions, to determine whether ordinary people implicitly invoke the canons when
interpreting both legal and nonlegal rules. To preview our findings: Many existing
interpretive canons reflect how ordinary people understand rules, but some popular canons
do not. For instance, ordinary people interpret rules in ways that correspond with various
longstanding canons such as ejusdem generis and noscitur a sociis but not in accordance with
the popular but frequently criticized canon expressio unius est exclusio alterius. In addition,
ordinary people implicitly resolve the conflict between the series-qualifier canon and the
rule of the last antecedent by interpreting modifiers consistently with the series-qualifier
canon.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 225
ordinary meaning from “the outside.” For example, dictionary definitions
that are not based on rule-like contexts may not reflect the understanding
of “ordinary readers.”
Second, we argue that our results suggest the importance of anti-liter-
alism in assessing ordinary meaning. Our study reveals that ordinary peo-
ple often interpret rules nonliterally. This bears on recent debates at the
heart of textualist theory.
58
Our findings support rejecting ordinary mean-
ing as being synonymous with literal meaning. Specifically, several of the
canons implicitly applied by ordinary people result in nonliteral mean-
ings.
59
Perhaps most importantly, such a commitment to nonliteralism
challenges modern textualist practices and may have the salutary eect of
decreasing judicial reliance on dictionary definitions and increasing judi-
cial sensitivity to context.
Third, we argue that interpretive canons should be understood as an
open set, despite conventional assumptions that the traditional canons cap-
ture all relevant language generalizations. Our study provides evidence in
support of two new ordinary meaning canons—ones not traditionally rec-
ognized by law, but that can be justified on the basis of ordinary meaning.
One we term the “nonbinary gender canon.”
60
The other we term the
“quantifier domain restriction canon.”
61
Courts committed to ordinary
meaning have no less reason to rely on newly discovered canons than tra-
ditional ones assumed to reflect ordinary meaning. More broadly, this the-
ory of ordinary meaning canons as an “open set” invites empirical discov-
ery of new language canons, allowing a much more dynamic statutory
interpretation based on linguistic dynamism. This dynamism is not only
consistent with textualists’ ordinary meaning commitments; it is justified
by them.
62
We conclude by arguing for a new empirical research agenda in law
and language. This project is ambitious and forward-looking, testing fun-
damental empirical assumptions underpinning interpretive canons, dis-
covering entirely new canons, reconceptualizing the ordinary meaning
doctrine as one concerned with rules, proposing an anti-literalist view of
some interpretive canons, and articulating a program for future research.
We see our study as a first step in this new direction. We hope future stud-
ies uncover further evidence about the triggering conditions of certain
58. See infra section IV.B.1 (discussing literal interpretations).
59. See infra section IV.B.2 (discussing examples including gender canons, number
canons, ejusdem generis, and noscitur a sociis).
60. This canon holds that masculine and plural pronouns like “he/his” and “they”
also include the feminine (e.g., “her”) and nonbinary (e.g., “they”). See infra section II.B.1.
61. This canon holds that the scope of quantifiers (e.g., “any”) is typically implicitly
restricted by context, which is a linguistic fact the Supreme Court has long struggled to
recognize. See infra section II.C.4.
62. See infra section IV.C.
226 COLUMBIA LAW REVIEW [Vol. 122:213
canons, discover additional “hidden” ordinary meaning canons, and test
how canons are cancelled or whether they are applied consistently.
I.
A FRAMEWORK FOR TESTING INTERPRETIVE PRINCIPLES
This Part provides a theoretical framework necessary for testing which
interpretive principles reflect ordinary people’s understanding of lan-
guage. It explains that every interpretive canon has three essential compo-
nents to its definition: (1) triggering, (2) application, and (3) cancellation.
Identifying the trigger for an interpretive canon is essential to testing
whether ordinary people intuitively apply the canon. The basic issue of
interpretive canon triggering is thus the critical focus of our empirical in-
quiries, as opposed to the more involved questions of how canons are or-
dered or applied in complex legal scenarios.
63
In focusing on this basic
issue, we divide potential ordinary meaning canons into two categories
that correspond to dierent ways in which context interacts with language
generalities. The first category—often called “semantic” or “syntactic”
canons—includes those triggered by specific linguistic phenomena, such
as the presence of a specific word or comma. The second category includes
canons triggered by certain kinds of linguistic formulations or contexts,
rather than by specific language. For example, the ejusdem generis canon is
triggered by the linguistic formulation of general words preceding or
following a list of more specific things.
A. Testing How Canons Are Triggered
The most basic issue regarding the testing of interpretive canons con-
cerns the tension between the generality of language rules and the in-
tensely contextual nature of legal interpretation. An ordinary meaning de-
termination must cut across contexts unconnected to any particular
Congress, subject matter, or statute.
64
Ordinary meaning interpretive can-
ons thus depend on general presumptions about language usage, but
courts assume that contextual evidence pointing to a dierent interpre-
tation might outweigh these presumptions.
65
In that sense, presumptions
63. See James J. Brudney, Canon Shortfalls and the Virtues of Political Branch
Interpretive Assets, 98 Calif. L. Rev. 1199, 1202 (2010) (“The Court has never developed
rules for harmonizing or prioritizing among the scores of existing canons, many of which
the Court has created in recent decades.”); Krishnakumar & Nourse, supra note 31, at 167
(“[P]recedent and legislative history should take precedence over rules like noscitur a
sociis.”).
64. See Brian G. Slocum & Jarrod Wong, The Vienna Convention and the Ordinary
Meaning of International Law, 46 Yale J. Int’l L. 191, 195 (2021) (noting the transsubstantive
nature of ordinary meaning).
65. See John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2465 n.285
(2003) [hereinafter Manning, The Absurdity Doctrine] (noting that textual canons “serve
only as rules of thumb . . . that help users of legal language discern meaning”).
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 227
about ordinary language usage are defeasible; they may be overridden by
the specific context of the statute or by other canons.
66
To analyze the interpretive process, we consider three essential issues:
(1) the facts that trigger the canon, (2) the circumstances relevant to ap-
plying the canon, and (3) the circumstances relevant to cancelling the lan-
guage presumption.
67
Our empirical research question focuses on whether
ordinary people, as a general matter, implicitly invoke a given interpretive
canon when interpreting language (which is issue #1). As such, it is neces-
sary to neutralize circumstances relating to issues #2 and #3, which include
other potentially applicable interpretive canons along with facts and infor-
mation not related to how the canon is triggered.
To illustrate this point, consider ejusdem generis.
68
That canon is trig-
gered by a catchall following a list of terms.
69
When one sees a statute that
lists “cars, buses, motorcycles, and all other vehicles,” the recognition that
there is a list concluding with a general term triggers the canon.
70
The fact
that ejusdem generis is “triggered” does not tell us everything there is to
know about how it ultimately applies, however. The canon predicts that
“all other vehicles” would not be understood to apply to literally any vehi-
cle. But to apply the canon, the interpreter must consider what common
generalization the list describes. In the example above, the interpreter
could consider (at least) two dierent generalizations: all vehicles with
engines (covering lawn mowers) or all wheeled vehicles (covering
wheelbarrows). Applying the canon—deploying one or another gener-
alization—is dierent from knowing that the canon has been triggered
(i.e., that “any other vehicle” is restricted in some way from its literal mean-
ing).
66. See, e.g., Lockhart v. United States, 577 U.S. 347, 355 (2016) (“This Court has long
acknowledged that structural or contextual evidence may ‘rebut the last antecedent
inference.’” (quoting Jama v. Immigr. & Customs Enf’t, 543 U.S. 335, 344 n.4 (2005)));
Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 569 (2012) (“[T]he word ‘interpreter’ can
encompass persons who translate documents, but because that is not the ordinary meaning
of the word, it does not control unless the context in which the word appears indicates that
it does.”).
67. Commentators have at times conflated these separate issues. Most famously, Karl
Llewellyn purported to show that every canon can be countered by an equal and opposite
countercanon, which he argued deprives canons of any probative force in the interpretive
process. See Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules
or Canons About How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 401–06 (1950). As
various scholars have noted, however, “[t]he large majority of Llewellyn’s competing
canonical couplets are presumptions about language and extrinsic sources, followed by
qualifications to the presumptions.” William N. Eskridge, Jr., Norms, Empiricism, and
Canons in Statutory Interpretation, 66 U. Chi. L. Rev. 671, 679 (1999).
68. See supra notes 22–29 and accompanying text.
69. See supra notes 22–29 and accompanying text.
70. For a more detailed explanation of this canon, see infra section I.C.
228 COLUMBIA LAW REVIEW [Vol. 122:213
Similarly, a canon’s trigger diers from considerations that might can-
cel the application of the canon. So, in the vehicle example, one might
understand that the canon is triggered, consider the possible general-
ization the list describes, and come to an initial conclusion about the stat-
ute’s meaning. Perhaps one may intuitively take “cars, buses, motor-
cycles, and all other vehicles” to exclude canoes. But the same interpreter
might abandon that initial conclusion after learning, for example, that the
statute provides a broad definition of the term “vehicle” elsewhere.
71
Sim-
ilarly, an interpreter might determine that the provision’s purpose
strongly indicates that the catchall should be given a broader meaning.
72
1. Context and Interpretation. — The distinction between triggering and
application or cancellation mirrors the longstanding legal understanding
of interpretation as involving both language generalities and the context
that shapes and modifies those language generalities. Justice Holmes
famously posited that the interpreter’s role is to determine “what th[e]
words [of the legal text] would mean in the mouth of a normal speaker of
English, using them in the circumstances in which they were used.”
73
As
such, the interpreter must consider the general and the specific and
choose an interpretation based on: (1) the language assumptions created
by the interpreter’s general knowledge of language usage, as shaped by
(2) inferences about what the language means in its specific context.
74
This
interpretive inquiry, as conceived by Justice Holmes, was necessarily objec-
tified and not empirical. At the time, no mechanisms existed for testing
language conventions or determining how actual ordinary people might
interpret a given legal text.
75
In determining a statute’s meaning, the interpreter must therefore
consider both facts based on language generalizations and facts about the
specific context of the statute.
76
When an interpretive canon is implicated,
71. See Tanzin v. Tanvir, 141 S. Ct. 486, 490 (2020) (explaining that statutory
definitions supplant “ordinary meaning”). In this case, the interpreter would have to
reconcile two dierent statutory definitions.
72. See Scalia & Garner, supra note 3, at 209–10 (discussing examples of catchall
language that would have no eect if limited only to the class of enumerated items, and
concluding that in such cases, the inclusion of the catchall demonstrates an intent by
drafters to broaden the meaning of the provision beyond the enumerated class).
73. Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417,
417–18 (1899).
74. See Eskridge, Interpreting Law, supra note 3, at 3–11 (discussing the importance
of context to interpretation).
75. Even if aspects of the interpretive process are capable of being empirically based,
such as empirical validation of interpretive canons, we argue that the ultimate statutory
interpretation is not a matter of empiricism. Instead, it is based on a combination of various,
often conflicting sources of meaning, making necessary a resort to some sort of objectified
interpreter.
76. Interpreters must consider both language generalizations and specific context
regardless of whether language canons are all valid.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 229
the interpreter must understand the facts that trigger the canon as well as
the circumstances relevant to applying the canon or cancelling its pre-
sumption. This is a synergistic model of meaning, in which general
assumptions about language exist along with specific inferences from con-
text. In fact, ordinary people routinely use contextual evidence to make
communication more ecient. Often, relying on the interpreter to exploit
contextual elements to discern the correct meaning is more ecient than
the author taking the time necessary to make the linguistic meaning
clear.
77
Thus, ecient communication frequently involves recognition of
nonliteral and implied meanings triggered by contextual evidence.
78
Still,
the consideration of context can make the interpretive process more
dicult and uncertain, such as when a language generalization is in
tension with aspects of context or other applicable linguistic conven-
tions.
79
2. The Categories of Interpretive Canons. — Even though context is an
essential aspect of interpretation, an interpreter cannot make sense of a
text without making assumptions about its linguistic meaning.
80
These lan-
guage generalizations frequently involve basic issues regarding conven-
tional word meanings and punctuation rules but may also include more
77. See Brendan Juba, Adam Tauman Kalai, Sanjeev Khanna & Madhu Sudan,
Compression Without a Common Prior: An Information-Theoretic Justification for
Ambiguity in Language, Innovations Comput. Sci., 2011, at 79, 79, https://conference.
iiis.tsinghua.edu.cn/ICS2011/content/paper/23.pdf [https://perma.cc/CY76-LN5M] (“[I]t
is easy to justify ambiguity to anyone who is familiar with information theory.”); Hannah
Rohde, Scott Seyfarth, Brady Clark, Gerhard Jaeger & Stefan Kaufmann, Communicating
With Cost-Based Implicature: A Game-Theoretic Approach to Ambiguity, in Proceedings of
SemDíal 2012 (SeíneDíal) 107, 108 (Sarah Brown-Schmidt, Jonathan Ginzburg & Staan
Larsson eds., 2012), http://semdial.org/anthology/Z12-Rohde_semdial_0015.pdf [https:
//perma.cc/S6Y6-TD9T] (“Rather than avoiding ambiguity, speakers show behavior that is
in keeping with theories of communicative eciency that posit that speakers make rational
decisions about redundancy and reduction.”).
78. See Steven T. Piantadosi, Harry Tily & Edward Gibson, The Communicative
Function of Ambiguity in Language, 122 Cognition 280, 281 (2012) (“[W]here context is
informative about meaning, unambiguous language is partly redundant with the context
and therefore inecient . . . .”).
79. The Supreme Court’s controversial decision in King v. Burwell, 135 S. Ct. 2480
(2015), is one notable example where the ordinary meaning of the statutory language was
in tension with relevant context. In interpreting one of the Aordable Care Act’s key
provisions referring only to “State” as including both federal and state governments, the
Court reasoned that a literal interpretation would “make little sense,” and thus that “when
read in context,” the relevant provisions were “properly viewed as ambiguous.” Id. at 2490–
92. As Justice Scalia argued in dissent, the semantic meaning of the relevant language was
clear. See id. at 2497 (Scalia, J., dissenting) (“It is hard to come up with a clearer way to limit
tax credits to state Exchanges than to use the words ‘established by the State.’”).
80. See Eskridge et al., The Meaning of Sex, supra note 5, at 1517 (“From a linguistic
perspective, considerations of context and purpose are ineliminable aspects of the ordinary
meaning determination. . . . For example, in determining whether a ‘no vehicles’ law
prohibits bicycles from the park, the interpreter . . . might consider the perceived purpose
of the law . . . .”).
230 COLUMBIA LAW REVIEW [Vol. 122:213
subtle generalizations involving the interaction between linguistic mean-
ing and context.
81
To best assess these language generalizations, empirical
studies should present narrow scenarios to test whether a canon is trig-
gered in accordance with its definition. Thus, broader scenarios should be
avoided that simultaneously raise issues relating to canon application or
cancellation, or the ordering of canons in cases where they conflict.
82
For
example, in testing the triggering conditions of ejusdem generis, it is more
helpful (for our purposes) to study how ordinary people understand a list
concluding with a general term than to study how ordinary people would
decide the McBoyle case. The former approach isolates only the material
relevant to canon triggering. Results using the latter approach might also
reflect application or cancellation or competing canons, as well as
participants’ views about the specific facts of McBoyle or their intuitions
about which interpretation is fairer to the parties.
In focusing on canon triggering, we divide potential ordinary mean-
ing canons into two categories to highlight the dierent ways in which con-
text interacts with language generalities.
83
The two categories address so-
called “textual canons,” which are varied presumptions about meaning
“that are usually drawn from the drafter’s choice of words, their grammat-
ical placement in sentences, and their relationship to other parts of the
‘whole’ statute.”
84
The presumptions typically are said to be based on gen-
eral principles of language usage rather than legal concerns.
85
81. A “generalization” concerns a linguistic regularity in a repeated context. See
Florent Perek & Adele E. Goldberg, Linguistic Generalization on the Basis of Function and
Constraints on the Basis of Statistical Preemption, 168 Cognition 276, 277 (2017) (explain-
ing that in an artificial language experiment, a factor that plays a role in determining
whether speakers are willing to generalize the way a verb is used is whether other verbs have
already been witnessed being generalized).
82. See infra Part II; see also Tobia, Experimental Jurisprudence, supra note 53, at 3–
9 (describing the dierent methodological approaches of experimental jurisprudence and
legal psychology that aim to model jury decisionmaking).
83. Scholars have proposed various ontologies that account for the dierences among
interpretive canons, but the basic distinction is between “substantive” and “textual” canons.
See, e.g., Gluck & Bressman, Statutory Interpretation Part I, supra note 33, at 924–25
(distinguishing between “textual canons” and “substantive canons”). We divide interpretive
canons into categories solely to oer a framework that will assist in the empirical evaluation
of the canons.
84. William N. Eskridge Jr. & Philip P. Frickey, Cases and Materials on Legislation:
Statutes and the Creation of Public Policy 634 (2d ed. 1995).
85. See William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L.
Rev. 1079, 1121 (2017) (“Linguistic canons . . . are just attempts to read whatever the
authors wrote, according to the appropriate theory of reading . . . .”); Abbe R. Gluck &
Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on
the Federal Courts of Appeals, 131 Harv. L. Rev. 1298, 1330 (2018) (distinguishing between
“‘linguistic’ or ‘textual’ canons, which are presumptions about how language is used,” and
“substantive” or “policy” canons, which are normative presumptions).
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 231
The first category covers canons triggered by specific linguistic phe-
nomena and minimal context. Some of these canons broaden the literal
meaning
86
of a provision.
87
The second category includes so-called “con-
textual canons,”
88
triggered by linguistic phenomena but requiring con-
sideration of the broad context of a statute for their application.
89
These
so-called “contextual canons” are each triggered by a certain kind of lin-
guistic formulation or context,
90
rather than by precise language, and each
requires that the interpreter evaluate context when applying the canon.
Typically, these contextual canons narrow the literal meaning of a provi-
sion. With respect to canons in either category, we argue that an interpre-
tive principle should be considered an “ordinary meaning canon” if ordi-
nary people would implicitly apply its interpretive presumption when
interpreting rules.
91
This is so regardless of whether ordinary people are
aware of such usage or could even identify the canon by name.
86. The term “literal meaning” is used throughout this Essay and is meant to refer to
the linguistic meaning of the relevant sentence that is conventional and context
independent. See C. J. L. Talmage, Literal Meaning, Conventional Meaning and First
Meaning, 40 Erkenntnis 213, 213 (1994). Essentially, then, literal meaning is based on the
conventional meaning of language, which is primarily tied to the semantic meanings of the
words. See François Récanati, Literal Meaning 3 (2004); Lawrence B. Solum, Commu-
nicative Content and Legal Content, 89 Notre Dame L. Rev. 479, 487 (2013) [hereinafter
Solum, Communicative Content] (“In law, we refer to semantic content as ‘literal meaning.’
This phrase is rarely theorized when it is used, and it may be ambiguous, but when lawyers
refer to the literal meaning of a legal text, it seems likely that they are referring to its
semantic meaning.”).
87. See infra section IV.A.2 (describing how these canons can broaden literal
meaning).
88. Scalia & Garner, supra note 3, at xiii–xiv.
89. We include the expressio unius est exclusio alterius canon in the category, which Scalia
& Garner label as a “semantic canon.” Id. at xii. Although nothing in our project turns on
this categorization, the expressio unius canon does not help determine the semantic meaning
of any explicit language but, rather, provides for a completeness inference (at least in some
circumstances). See infra notes 153–156 and accompanying text.
90. The expressio unius canon likely depends on context for its application but, when
applied, forbids the expansion of the literal meaning of a provision. See infra notes 153–
156 and accompanying text.
91. In labeling an interpretive canon an “ordinary meaning canon,” we refer to
“ordinary meaning” in a general way that corresponds to the interpretive practices of
ordinary people and do not choose among possible technical definitions of “ordinary
meaning.” We also do not select among the various possible tests for designating an inter-
pretive principle as a “canon.” It has been suggested, for instance, that “canonical status”
may require some showing of “historical pedigree, longevity, regularity of use,” or other
indication of longstanding usage. See Krishnakumar & Nourse, supra note 31, at 164. We
refer to the interpretive rules applied by ordinary people as “ordinary meaning canons” and
argue that the existing set of interpretive canons is incomplete, but we do not join the debate
regarding when the term “canon” should be used when referring to an interpretive
principle.
232 COLUMBIA LAW REVIEW [Vol. 122:213
B. Category One Canons
The first category of interpretive canons includes those triggered by
specific linguistic phenomena and minimal context. These interpretive
principles are often referred to as “semantic canons” or “syntactic can-
ons,” among other terms.
92
Thus, for instance, a grammatical rule may be
triggered by the presence (or absence) of a comma.
93
Consider the
“Oxford comma rule,” one of the interpretive principles we tested.
94
The
term refers to a comma used after the penultimate item in a list of three
or more items, the presence of which can create an additional distinct item
or category.
95
The presence (or absence) of such a comma can therefore
have interpretive significance. Thus, if the Oxford comma rule is followed,
(1) Joe went to the store with his parents, Mike, and Michelle.
has a dierent meaning than does
(2) Joe went to the store with his parents, Mike and Michelle.
The presence of a second comma in (1) is the only linguistic dier-
ence between (1) and (2), but, arguably, this dierence changes the mean-
ing of (1) compared to (2). In (1), “Mike” and “Michelle” are not Joe’s
parents, but in (2), they are his parents.
The Oxford comma rule is a relatively straightforward interpretive
canon. Its trigger is a comma after the penultimate item in a list of three
or more items; additional context is not necessary for the rule’s applica-
tion. The Oxford comma rule, if valid, helps determine the literal meaning
of a provision, even if it is defeasible. For example, a judge may consider
the canon applicable but find that the broad context of a provision indi-
cates that applying it would be inconsistent with other statutory provisions
or undermine the purpose of the provision in some way.
96
The Oxford comma rule could also, of course, apply in legal contexts.
Consider two statutes that provide exemptions from overtime wages. One
statute provides as follows:
(3) The canning, processing, preserving, freezing, drying,
marketing, storing, packing for shipment or distribution of:
(1) Agricultural produce;
(2) Meat and fish products; and
92. See Scalia & Garner, supra note 3, at xii–xiii (describing and defending eleven
“semantic canons” and seven “syntactic canons”).
93. See Lance Phillip Timbreza, Note, The Elusive Comma: The Proper Role of
Punctuation in Statutory Interpretation, 24 Quinnipiac L. Rev. 63, 67 (2005) (explaining
the Supreme Court’s creation of “Punctuation Doctrines” for statutory interpretation).
94. See John Inazu, Unlawful Assembly as Social Control, 64 UCLA L. Rev. 2, 13–14
(2017) (discussing problems created by the absence of an Oxford comma).
95. See Oxford Comma, Dictionary.com, https://www.dictionary.com/browse/
oxford-comma [https://perma.cc/SGY5-QQ8M] (last visited Sept. 1, 2021).
96. See infra section I.D (describing the defeasibility of interpretive canons).
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 233
(3) Perishable foods.
97
The following hypothetical statute is the same except for the addition of a
comma after “shipment”:
(4) The canning, processing, preserving, freezing, drying,
marketing, storing, packing for shipment, or distribution of:
(1) Agricultural produce;
(2) Meat and fish products; and
(3) Perishable foods.
The first statute was an actual Maine statute, and the U.S. Court of
Appeals for the First Circuit held that delivery drivers did not fall within
the exemption’s scope, explaining that the provision was “ambiguous”
after considering the “relevant interpretive aids,” including the “absent
comma.”
98
Would the interpretive dispute have been decided dierently
if the Maine statute contained the additional comma, as in (4)?
99
If ordi-
nary people would interpret (4) more broadly than (3), i.e., as containing
an additional category, that would provide some intuitive support for the
Oxford comma rule.
100
Other canons based on punctuation rules are similar to the Oxford
comma rule, but Category One is not limited to punctuation rules. Below
are the interpretive canons we tested in the first category:
97. Me. Rev. Stat. Ann. tit. 26, § 664(3)(F) (2017).
98. O’Connor v. Oakhurst Dairy, 851 F.3d 69, 72 (1st Cir. 2017). The statutory
provision at issue in this case, see supra note 97 and accompanying text, was amended in
late 2017 to replace the commas with semicolons and add a semicolon between “shipment”
and “or distributing of.” The revised provision stated, “The canning; processing; preserving;
freezing; drying; marketing; storing; packing for shipment; or distributing of: (1)
Agricultural produce; (2) Meat and fish products; and (3) Perishable foods.” Me. Rev. Stat.
Ann. tit. 26, § 664(3)(F) (eective Nov. 1, 2017).
99. The validity of the Oxford comma rule does not depend on such a showing. Other
interpretive evidence (such as from legislative history or other text) could still outweigh the
probabilistic force of the Oxford comma rule. In fact, the court did consider the law’s
purpose and legislative history. See Oakhurst Dairy, 851 F.3d at 77–78.
100. Namely, that support would come if ordinary people made this judgment without
consideration of the other contextual evidence that was also addressed by the First Circuit
(e.g., legislative history). The other contextual evidence is not related to whether a
grammatical rule is triggered but rather whether any grammatical rule is cancelled by the
other evidence.
234 COLUMBIA LAW REVIEW [Vol. 122:213
TABLE 1. CATEGORY ONE CANONS
Gender and Number Canons
In the absence of a contrary indication,
the masculine includes the feminine
(and vice versa), and the singular in-
cludes the plural (and vice versa).
101
“And” vs. “Or”
(Conjunctive/Disjunctive
Canon)
“And” joins a conjunctive list; “or” a
disjunctive list.
102
“May” vs. “Shall”
Mandatory words, such as “shall,”
impose a duty while permissible words,
such as “may,” grant discretion.
103
Oxford Comma
A comma used after the penultimate
item in a list of three or more items, the
presence of which can create an
additional distinct item or category.
104
Presumption of Nonexclusive
“Include”
The verb “to include” introduces
examples, not an exhaustive list.
105
Series-Qualifier Canon
When there is a straightforward paral-
lel construction that involves all nouns
or verbs in a series, a prepositive or
postpositive modifier normally applies
to the entire series.
106
Rule of the Last Antecedent
(1) A pronoun, relative pronoun, or
demonstrative adjective generally
refers to the nearest reasonable ante-
cedent.
(2) When a modifier is set o from a
series of antecedents by a comma, the
modifier should be interpreted to ap-
ply to all of the antecedents.
107
101. See Scalia & Garner, supra note 3, at 129.
102. See id. at 116.
103. See id. at 112.
104. See supra notes 93–100 and accompanying text (describing the Oxford comma
rule).
105. See Scalia & Garner, supra note 3, at 132.
106. See id. at 147.
107. See id. at 144.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 235
Some of these interpretive canons may be more easily cancellable
than others. That is an issue beyond the scope of our project. In each case,
however, these interpretive canons are triggered by specific linguistic phe-
nomenon and minimal context. Our empirical study assesses those trig-
gering conditions.
C. Category Two Canons
The second category of interpretive canons includes those textual
canons triggered by a certain kind of linguistic formulation or context,
rather than by precise language. Each of these canons interacts with the
literal meaning of a provision in some way, typically by narrowing it, on the
basis of inferences from context. Although these canons are triggered by
specific kinds of language, there are no limits on the contextual evidence
that can be considered in applying the canons, allowing judges to consider
broad evidence about legislative purpose when applying the canons.
108
The unlimited recourse to contextual evidence may make the application
of these “contextual canons” discretionary and unpredictable, but we
focus only on whether the canons have discrete and consistent triggers.
109
Below are the four canons in this category that we test:
108. See Anita S. Krishnakumar, Backdoor Purposivism, 69 Duke L.J. 1275, 1304–05
(2020) [hereinafter Krishnakumar, Backdoor Purposivism] (explaining that textualist
Justices have engaged in purposive analysis when applying contextual canons); see also
Eskridge & Nourse, supra note 35, at 7 (arguing that theorists have not fully analyzed the
concept of context).
109. See Krishnakumar, Backdoor Purposivism, supra note 108, at 1291 (arguing that
some judges use textual canons in broad, purposivist ways that serve as “launch pads for
assuming or constructing legislative purpose and intent” (emphasis omitted)).
236 COLUMBIA LAW REVIEW [Vol. 122:213
TABLE 2. CATEGORY TWO CANONS
Noscitur a sociis
The meaning of words placed together in a
statute should be determined in light of the
words with which they are associated.
110
Ejusdem generis
When general words in a statute precede or
follow a list of specific things, the general
words should be construed to include only
objects similar in nature to the specific
words.
111
Expressio unius est
exclusio alterius
When a statute expresses something explicitly
(usually in a list), anything not expressed
explicitly does not fall within the statute.
112
Quantifier Domain
Restriction
The scope of a universal quantifier (i.e., “all,”
“any,” etc.) is typically restricted in some way
by context.
113
The ejusdem generis canon, discussed above, illustrates the theme of
this group of textual canons.
114
Ejusdem generis provides that “if a series of
more than two items ends with a catch-all term that is broader than the
category into which the proceeding items fall but which those items do not
exhaust, the catch-all term is presumably intended to be no broader than
that category.”
115
The motivation for the ejusdem generis canon is straight-
forward and intuitive.
116
Lists are pervasive in legal texts, and legislatures
often use a general term at the end of a list of specifics to ensure that the
provision has a broad scope (but not too broad).
117
Intuitively, the general,
110. See Scalia & Garner, supra note 3, at 195.
111. See id. at 199.
112. See id. at 107.
113. See infra section I.D.1.
114. See supra notes 22–32, 68–72.
115. Reed Dickerson, The Interpretation and Application of Statutes 234 (1975).
116. See Slocum, Ordinary Meaning, supra note 3, at 186–87 (explaining the language-
production rationale for the ejusdem generis canon).
117. See Peter M. Tiersma, Categorical Lists in the Law, in Vagueness in Normative
Texts 109, 109–10, 122 (Vijay K. Bhatia, Jan Engberg, Maurizio Gotti & Dorothee Heller
eds., 2005).
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 237
catchall term must be narrower in meaning than its literal meaning would
indicate.
118
For example, a law concerning the regulation of
(5) gin, bourbon, vodka, rum, and other beverages
would not likely (absent some unusual context) be interpreted as includ-
ing orange juice, even though it is a “beverage.”
119
By applying ejusdem gen-
eris to narrow the meaning of “other beverages,” a court would be relying
on a generality of language usage rather than the literal meaning of the
textual language.
120
The ejusdem generis canon is not without its detractors. Some critics
claim it does not accurately reflect language usage.
121
Others question the
validity of the ejusdem generis canon based on its application, arguing that
it is inherently indeterminate due to the multiple ways in which the gen-
eral catchall term (usually an “other” phrase) can be given a limited mean-
ing.
122
Such indeterminacy may influence judges to downplay its signifi-
cance and indicate that it is just one “factor” to consider, among many
others.
123
Ejusdem generis is nevertheless an ordinary meaning canon if it
reflects how ordinary people interpret catchalls at the end of lists.
124
Estab-
lishing its status as “a canon” is thus dependent on the validity of its trig-
gering element rather than its application or cancellation.
Establishing the validity of a contextual canon’s triggering element
requires that it be accurately identified. Sometimes the triggering ele-
ments of a canon are conflated with the circumstances of its application or
cancellation. Consider, for instance, whether a finding of “ambiguity” is a
necessary component of the trigger for the ejusdem generis canon, as well
as other “contextual canons.”
125
Justice Elena Kagan, dissenting in Yates v.
118. Catchall phrases are often not meant to be given their literal meanings and thus
are restricted in scope in some way but not necessarily in the way alleged in a particular
interpretive dispute.
119. See Slocum, Ordinary Meaning, supra note 3, at 187.
120. See id. at 188–98 (arguing that ejusdem generis is based on a regularity of language
usage that narrows the literal meaning of a catchall).
121. See, e.g., Dickerson, supra note 115, at 234 (questioning whether the ejusdem
generis canon is “lexicographically accurate”).
122. See Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118,
2161 (2016) (book review) (arguing that he “would consider tossing the ejusdem generis
canon into the pile of fancy-sounding canons that warrant little weight in modern statutory
interpretation” because of the canon’s indeterminacy).
123. See Scalia & Garner, supra note 3, at 213 (“Ejusdem generis is one of the factors to
be considered, along with context and textually apparent purpose, in determining the
scope” and “does not always predominate, but neither is it a mere tie-breaker.”).
124. See generally Brian G. Slocum, Conversational Implicatures and Legal Texts, 29
Ratio Juris. 23 (2016) (explaining how the ejusdem generis canon is an aspect of a rational
system of drafting).
125. See, e.g., Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 156 (2013) (indicating
that a canon of interpretation “is ‘no more than [a] rul[e] of thumb’ that can tip the scales
238 COLUMBIA LAW REVIEW [Vol. 122:213
United States, argued that the Court should not have applied noscitur a sociis
and ejusdem generis because those canons “resolve ambiguity” rather than
help determine the linguistic meaning of a provision.
126
It is common for
courts and scholars to refer to contextual canons as being applicable when
a term is “ambiguous.”
127
Nevertheless, Justice Kagan’s concerns go to the
proper application of the canons rather than to whether they were trig-
gered by the statutory language.
One problem with the “ambiguity-is-required” position is that a canon
that restricts the literal meaning of language does not resolve “ambigu-
ity.”
128
The ejusdem generis canon does not help a court select between com-
peting lexical meanings but, rather, restricts a catchall to some subset of
its literal meaning.
129
The function of the canon is therefore to select some
subset of the term’s literal meaning rather than choose between compe-
ting meanings of an ambiguous term. Thus, in (5) above, ejusdem generis
does not resolve some ambiguity about the meaning of “beverages”
because it is quite clear that orange juice is a beverage as a general
matter.
130
Rather, the question is whether the list of four beverages that
precedes the “other beverages” catchall indicates that only some subset of
“beverages” is targeted, such as those that contain alcohol.
More importantly, the ambiguity-is-required position (thereby mak-
ing the trigger: list of items + catchall + ambiguity) oers a plausible concep-
tion of the trigger for ejusdem generis only if a broader trigger that would
exclude ambiguity (list of items + catchall) does not in fact trigger the canon
for ordinary people.
131
The better way to view Justice Kagan’s position is
when a statute could be read in multiple ways” (quoting Conn. Nat’l Bank v. Germain, 503
U.S. 249, 253 (1992))).
126. 574 U.S. 528, 564 (2015) (Kagan, J., dissenting).
127. See, e.g., United States v. Stevens, 559 U.S. 460, 474 (2010) (referring to the
noscitur a sociis canon as applying to an “ambiguous term”); see also Gluck & Bressman,
Statutory Interpretation Part I, supra note 33, at 930 (describing noscitur a sociis as requiring
judges to “construe ambiguous terms in a list in reference to other terms on the list”); Anita
S. Krishnakumar, Longstanding Agency Interpretations, 83 Fordham L. Rev. 1823, 1868
(2015) (stating that “language canons” are “supposed to be invoked only when a statute’s
meaning is ambiguous or uncertain”).
128. Considering its function, a judicial finding of ambiguity is thus not necessary to
trigger the canon, although the often broad scope of the judicial conception of “ambiguity”
would allow a provision to be labeled as “ambiguous” whenever the canon is used (giving
Justice Kagan a basis for her claim about the requirement of ambiguity). See Brian G.
Slocum, Rethinking the Canon of Constitutional Avoidance, 23 U. Pa. J. Const. L. 593, 616–
23 (2021) [hereinafter Slocum, Rethinking] (arguing that the finding of ambiguity is
subjective rather than being based on neutral linguistic principles).
129. See supra notes 114–124 and accompanying text.
130. See, e.g., Orange Juice, https://en.wikipedia.org/wiki/Orange_juice [https://
perma.cc/A2Z7-LR3U] (last visited Aug. 1, 2021).
131. Furthermore, a requirement of ambiguity would significantly undermine ejusdem
generis as an interpretive principle based on a generalization of language usage because it
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 239
that the argument about “ambiguity” is not really about the canon’s
trigger but rather a consideration important to its application
/cancellation. Justice Kagan argued in Yates that the catchall should not
be narrowed because of the purpose of the provision.
132
If the purpose of
the provision is consistent with the literal meaning of the catchall, ejusdem
generis should not be used to narrow that meaning. Rather, the canon
should be applied only if there is at least some uncertainty about whether
the literal meaning of the catchall is too broad. Thus, in (5) above, a court
should not narrow the meaning of the catchall, “other beverages,” if the
available evidence indicates that the literal meaning of the catchall better
supports statutory purpose than would some narrowed meaning.
133
D. Empirical Study of Interpretive Canons
Using experimental methods to confirm or disconfirm the ordinary
meaning status of existing legal interpretive canons is novel and
important. As the previous section suggests, empirical evidence may pro-
vide other equally important insights.
134
Empirical evidence may show that
the current set of interpretive canons is incomplete or that individual can-
ons are defined inaccurately, and it may even help resolve conflicts
between canons. In fact, this Essay argues that currently unrecognized tex-
tual canons are waiting to be discovered by the legal system. Furthermore,
this Essay suggests that some currently well-accepted canons are defined
poorly or are in conflict with other canons.
1. Interpretive Canons as an Incomplete Set. — If textual canons reflect
ordinary language usage, there is no reason to assume that judicial tradi-
tion has identified the complete set of canons.
135
Scholars often argue that
a canon’s language generalization is inaccurate, but they rarely advocate
for the recognition of new textual canons.
136
Legal tradition, not linguistic
would make the trigger subjective and unpredictable. See Slocum, Rethinking, supra note
128, at 616–23 (describing the subjective nature of judicial determinations of ambiguity).
132. Yates v. United States, 574 U.S. 528, 556–58 (2015) (Kagan, J., dissenting) (making
arguments based on legislative history, purpose, and the structure of the statute).
133. See Krishnakumar, Backdoor Purposivism, supra note 108, at 1304–05 (explaining
that judges heavily rely on statutory purpose when applying contextual canons like ejusdem
generis).
134. See supra section I.C.
135. There is no ocial list of textual canons, and thus dierent lists contain dierent
canons. Compare, e.g., Eskridge et al., Cases and Materials 2014, supra note 29, at 1195–
215, with Scalia & Garner, supra note 3, at xii–xvii.
136. There are some exceptions. See, e.g., Ethan J. Leib & James J. Brudney, The Belt-
and-Suspenders Canon, 105 Iowa L. Rev. 735, 736 (2020) (arguing for the creation of a belt-
and-suspenders canon presuming that Congress drafts in ways that are “deliberatively
duplicative, redundant, and/or reinforcing rather than perfectly parsimonious”). In con-
trast to textual canons, substantive canons are not triggered by explicit linguistic phenom-
ena, making it easier to advocate in favor of new substantive canons. See infra notes 321–
326 and accompanying text (describing proposed substantive canons).
240 COLUMBIA LAW REVIEW [Vol. 122:213
usage, has defined the canons. Empirical study of ordinary language users
can thus help determine whether the traditional canons represent the only
relevant language generalizations available.
137
Consider a potential textual canon that we refer to as the “quantifier
domain restriction canon.” When interpreting the statement
(6) Everybody went to Paris.
literalism holds that universal quantifier words such as “any,” “everybody,”
and “most” quantify over everything.
138
Therefore, without some
restriction, the meaning of (6) is that every existing person went to Paris.
But even with little contextual evidence, the literal meaning of (6) is dif-
ferent from that which even “untutored conversational participants”
would ascribe to it.
139
Linguists treat terms such as “everybody” as a
restricted quantifier, creating situations where there is a gap between
intuitive meaning and literal meaning.
140
Courts have struggled with quantifiers and their domains. The
Supreme Court has decided several cases involving quantifier scope. The
default view of the Court seems to be that the “natural” meaning of quan-
tifiers is the literal meaning and that courts should look for explicit textual
language to limit the scope of universal quantifiers.
141
Thus, in United States
v. Gonzales, the Court sought explicit language in a federal sentencing stat-
ute to restrict “any other term of imprisonment” to federal sentences.
142
In
interpreting the provision as including state sentences, the Court empha-
sized the “naturally . . . expansive meaning” of “any” and refused to con-
sider legislative history due to the “straightforward statutory command.”
143
137. In fact, in theory at least, textual canons should be added, modified, and elimi-
nated as language usage changes over time. See generally Jean Aitchison, Language Change:
Progress or Decay? 153–54 (4th ed. 2013) (explaining that “sociolinguistic causes of
language change” involve the altering of language as “the needs of its users alter”).
138. See Isidora Stojanovic, The Scope and Subtleties of the Contextualism-Literalism-
Relativism Debate, 2 Language & Linguistics Compass 1171, 1172 (2008).
139. See Récanati, supra note 86, at 10–11. Consider the example, “You are not going
to die.” Récanati writes:
Kent Bach, to whom [the example] is due, imagines a child crying because
of a minor cut and her mother uttering . . . [“you are not going to die”]
in response. What is meant is: “You’re not going to die from that cut.” But
literally the utterance expresses the propositions that the kid will not die
tout court—as if he or she were immortal. The extra element contextually
provided (the implicit reference to the cut) does not correspond to
anything in the sentence itself; nor is it an unarticulated constituent
whose contextual provision is necessary to make the utterance fully
propositional.
Id. at 8–9.
140. See id. at 10.
141. See Slocum, Ordinary Meaning, supra note 3, at 154.
142. 520 U.S. 1, 5 (1997).
143. Id. at 5–6.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 241
In some cases, however, the Court has restricted the domain of the
relevant quantifier, based on competing canons or legal principles. For
instance, in Small v. United States, the Court restricted the scope of the
phrase “convicted in any court” to include only domestic, and not foreign,
convictions.
144
The restriction, though, was motivated by the interpretive
presumption against extraterritorial application of legislation.
145
Similarly,
in Nixon v. Missouri Municipal League,
146
the Court interpreted a statute au-
thorizing federal preemption of state and local laws prohibiting the ability
of “any entity” to provide telecommunications services as not including a
state’s own subdivisions.
147
States were thus allowed to prohibit local mu-
nicipalities from providing telecommunications services.
148
The quantifier
domain restriction, though, was at least partly motivated by federalism con-
cerns requiring that Congress be clear when it intends to constrain a state’s
traditional authority to order its government.
149
As the above discussion illustrates, there is no existing canon restrict-
ing the scope of universal quantifiers. Instead, the most common judicial
assumption is that universal quantifiers are unlimited in scope.
150
This
assumption is contrary to the evidence provided by linguists and philoso-
phers that the domains of universal quantifiers are restricted by ordinary
people even when very little context is provided.
151
Potentially, then, the
“quantifier domain restriction canon” fits the profile of an “ordinary
meaning canon”: A language generalization (universal quantifiers are
limited in scope by context) is triggered by a linguistic phenomenon (a
universal quantifier), and the restriction is determined on the basis of
context and thus can be cancelled on the basis of context.
2. Poorly Defined Triggers. — In addition to their potential incomplete-
ness, the currently identified canons may represent either entirely
inaccurate language generalizations
152
or, less alarmingly, poorly defined
ones. One type of inaccuracy occurs when an interpretive canon sets forth
an accurate language generalization but has a too broadly defined trigger.
For example, the expressio unius est exclusio alterius canon provides that
when a statute expresses something explicitly (usually in a list), anything
144. 544 U.S. 385, 387 (2005).
145. Id. at 388–89.
146. 541 U.S. 125 (2004).
147. See id. at 128–29.
148. See id. at 140 (“[F]ederal legislation threatening to trench on the States’
arrangements for conducting their own governments should be treated with great skepti-
cism, and read in a way that preserves a State’s chosen disposition of its own power, in the
absence of the plain statement.”).
149. See id. at 140–41.
150. See supra notes 141–143 and accompanying text.
151. See Slocum, Ordinary Meaning, supra note 3, at 153.
152. The inaccuracy may be subtle, such as “ambiguity” being a component of the
trigger. See supra notes 125–133 and accompanying text.
242 COLUMBIA LAW REVIEW [Vol. 122:213
not expressed explicitly falls outside the statute.
153
If the canon were trig-
gered by the mere expression of any term, it would apply in a whole host
of circumstances where its negative inference may be unwarranted. Critics
of the canon have therefore argued that the trigger must require some-
thing more.
154
For example, if Mother tells Sally, “You may have a cookie
and a scoop of ice cream,” it seems quite clear (to parents and neutral
observers, at least) that candy bars are excluded. Yet, the negative infer-
ence may not be warranted in other situations. If Mother tells Sally not to
“hit, kick, or bite” her brother, the exclusion of other harmful acts—like
pinching—might not follow.
155
This example illustrates that the canon
trigger depends on an explicit expression but also some additional ele-
ment that is yet to be identified by courts or scholars. In their book, Read-
ing Law, Justice Antonin Scalia and Bryan Garner do not suggest any such
additional element but caution that the canon should be “applied with
great caution” and “common sense.”
156
Noscitur a sociis raises similar definitional concerns. Its generality of
language usage—“the meaning of words should be determined in light of
the words with which they are associated”—is so obvious and broad a lin-
guistic proposition that one wonders whether it should qualify as a
canon.
157
Under one theory, the noscitur a sociis canon could be narrowed
by focusing on lists: When a word or phrase in a list is unclear (usually by
being potentially broader in meaning than the other words), its meaning
“should be determined by the words immediately surrounding it.”
158
The
trigger then for the canon would be a word in a list that potentially diers
in meaning in some important way from the other words in the list. This
understanding would usually include the least controversial applications
of the canon (what some would call “common sense”), which involve the
153. Some scholars have defended the canon as being consistent with linguistic
principles. See, e.g., M.B.W. Sinclair, Law and Language: The Role of Pragmatics in
Statutory Interpretation, 46 U. Pitt. L. Rev. 373, 416 (1985) (arguing that expressio unius is
consistent with Gricean principles of communication).
154. See Peter M. Tiersma, A Message in a Bottle: Text, Autonomy, and Statutory
Interpretation, 76 Tul. L. Rev. 431, 459 (2001) (“[E]ven though expressio unius has at least
some linguistic justification, courts apply it in what seems to be a rather haphazard
fashion.”).
155. William N. Eskridge Jr., Abbe R. Gluck & Victoria F. Nourse, Statutes, Regulation,
and Interpretation: Legislation and Administration in the Republic of Statutes 457 (2014).
156. See Scalia & Garner, supra note 3, at 107. It is questionable whether this
characterization would represent a language generalization. It is more of a tautology: When
a judge is convinced that everything is included, everything is included.
157. The basic concept, that context can help select the correct word meaning, is an
uncontroversial truism of linguistics. See Nicholas Asher & Alex Lascarides, Lexical
Disambiguation in a Discourse Context, 12 J. Semantics 69, 103 (1995).
158. See Krishnakumar, Backdoor Purposivism, supra note 108, at 1305; see also Dolan
v. U.S. Postal Serv., 546 U.S. 481, 494 (2006) (“Words grouped in a list should be given
related meaning.” (internal quotation marks omitted) (quoting Dole v. United Steelworkers
of Am., 494 U.S. 26, 36 (1990))).
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 243
selection of the correct meaning when a word has more than one conven-
tional meaning. Thus, in a list involving financial institutions, “bank”
would designate a financial institution rather than the side of a river.
159
The broad definition of noscitur a sociis also does not indicate when
the canon is especially appropriate: for example, when the single meaning
of a word should be limited to some subset of the category designated. For
instance, in Yates v. United States, the interpretive question was whether the
phrase “any record, document, or tangible object” included undersized
red grouper and thus criminalized actions to cover up undersized fish-
ing.
160
The Court, relying in part on the noscitur a sociis canon, determined
that “tangible object” should include only those things “used to record or
preserve information.”
161
It is debatable that a common meaning of “tan-
gible object” is something “used to record or preserve information,” if one
seeks a meaning representing the concept’s full parameters.
162
Rather, the
“used to record or preserve information” meaning represents a subset of
the “tangible object” category, selected in part on the basis of the other
two items in the list, “record” and “document.” Part IV argues that these
situations involve nonliteral interpretations consistent with the nonliteral
interpretations directed by other canons.
3. Uncertain Categorization and Conflicting Canons. — Some existing
canons may raise other issues undermining their value to judges. Uncer-
tainty about a canon’s trigger may lead to uncertainty about its proper cat-
egorization and application. In turn, this uncertainty makes it more di-
cult to resolve conflicts among canons. Both issues suggest the potential
benefits of empirical testing of canons.
Consider the series-qualifier canon. Under one simple definition, the
series-qualifier canon presumes that “a modifier at the end of the list nor-
mally applies to the entire series.”
163
Alternatively, according to Scalia and
Garner, a modifier at the end of a list normally applies to the entire series
“[w]hen there is a straightforward, parallel construction that involves all
159. See infra section II.C.1 (explaining that ordinary people were able to use sentential
context in order to select the correct meaning of “bank”).
160. 574 U.S. 528, 531–35 (2015).
161. Id. at 549. Another similar canon, ejusdem generis, was also mentioned by the Court.
See id. at 545 (referring to it as a “canon related to noscitur a sociis”).
162. That is, no one would claim that as a general matter the ordinary meaning of
“tangible object” is something used to record or preserve information. Rather, the question
is whether the sentential and broader context indicated that a narrower meaning was inten-
ded that would capture only a subset of objects that might otherwise fall under “tangible
object.”
163. Shon Hopwood, Restoring the Historical Rule of Lenity as a Canon, 95 N.Y.U. L.
Rev. 918, 948 (2020) (internal quotation marks omitted) (quoting Lockhart v. United
States, 577 U.S. 347, 364 (2016) (Kagan, J., dissenting)).
244 COLUMBIA LAW REVIEW [Vol. 122:213
nouns or verbs in [the] series.”
164
Scalia and Garner categorize the series-
qualifier canon as a “syntactic canon” (which we include in Category
One), rather than a “contextual canon” (which we include in Category
Two).
165
This second, alternative definition of the canon enlarges the rel-
evant context. It may be that whether the modifying clause applies to the
entire series should be determined only after consideration of the broad
context of a statute and its purpose, in the same way that so-called contex-
tual canons require such consideration.
166
If so, the series-qualifier canon
is actually a Category Two rather than a Category One canon.
Category One vs. Category Two classification carries no legal con-
sequences, and categorization disputes are inevitable. But imprecise defi-
nitions pose problems when there is a definitional conflict between two
canons.
167
Consider the conflict between the rule of the last antecedent,
which provides that a modifier generally refers to the nearest reasonable
antecedent in the absence of a comma before the modifier, and the series-
qualifier canon.
168
At least some of the two canons’ definitions show that
they provide opposite instructions about how modification works. As Judge
Richard Posner has asserted, “the ‘series-qualifier’ canon[] contradicts the
‘last-antecedent’ canon,”
169
and the Supreme Court in Lockhart v. United
States described the series-qualifier canon as a “countervailing grammatical
mandate” to the rule of the last antecedent.
170
While various solutions to
the conflict are theoretically possible, as the next Part explains, our
empirical evidence indicates that the series-qualifier canon, and not the
rule of the last antecedent, is implicitly applied by ordinary people when
the two conflict. Further empirical testing may reveal nuances that can
164. See Scalia & Garner, supra note 3, at 147 (emphasis added); see also Lockhart, 577
U.S. at 355 (describing the “series-qualifier principle” as requiring “a modifier to apply to
all items in a series when such an application would represent a natural construction”).
165. See Scalia & Garner, supra note 3, at xiii.
166. See Lockhart, 577 U.S. at 355–56 (indicating that application of the series-qualifier
canon and the rule of the last antecedent “are fundamentally contextual questions”).
167. A definitional conflict occurs when the definitions of two canons are explicitly in
conflict. In comparison, a situational conflict occurs when a case involves multiple linguistic
issues and one canon directs that one of the linguistic issues be resolved in favor of Inter-
pretation A, while another canon directs that a separate linguistic issue be resolved in favor
of Interpretation B. See William N. Eskridge, Jr., The New Textualism and Normative
Canons, 113 Colum. L. Rev. 531, 545 (2013) [hereinafter Eskridge, The New Textualism
and Normative Canons] (reviewing Scalia & Garner, supra note 3) (explaining situational
conflicts where there are “a dozen or more canons that are applicable to the issue and . . .
will push the interpreter in cross-cutting ways”).
168. See supra Table 1. See generally Terri LeClercq, Doctrine of the Last Antecedent:
The Mystifying Morass of Ambiguous Modifiers, 40 Tex. J. Bus. L. 199, 204–05 (2004)
(describing Jabez Sutherland’s creation of the rule of the last antecedent).
169. United States v. Laraneta, 700 F.3d 983, 989 (7th Cir. 2012).
170. Lockhart, 577 U.S. at 355.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 245
help refine the two canons’ triggers and lessen or eliminate the conflict,
or indicate that the rule of the last antecedent should be discarded.
II.
EXPERIMENTAL STUDY OF INTERPRETIVE CANONS
In this Part, we present two original experimental studies, designed to
evaluate statutory interpretation “from the outside.” We study whether
ordinary people evaluate language in ways predicted by the triggering con-
ditions of major interpretive canons. Study 1 recruits a large sample of
4,500 Americans, presenting them with a series of questions to assess intu-
itive canon application. Study 2 samples law students who we treat as
“highly sophisticated ordinary people”—these are students enrolled in
Legislation, surveyed just as they begin the course. The results from these
law students largely replicate Study 1’s findings.
171
Before turning to the study, we first explain our experimental
approach. If the goal of the ordinary meaning doctrine is to capture the
interpretation an ordinary person would give a provision, it might seem
that experimental surveys should focus on the interpretations ordinary
people give to actual provisions in their full contexts. For example, to
assess ejusdem generis, we could provide participants with the full statute at
issue in McBoyle and ask them to apply it to a specific situation (e.g.,
whether an “airplane” is a “vehicle”).
172
This approach seems to address
the most important question (the ultimate interpretation of a provision in
its full context), but the results of that type of “mock-judging” survey are
not particularly useful for our purposes. Mock-judging surveys provide
information about a statute’s meaning as applied to specific interpretive
disputes, but the results may not be generalizable to the interpretation of
other statutes or even to disputes not presented to the survey participants.
Most importantly, for our purposes, mock-judging surveys muddy the
distinction between a canon’s trigger and its application and/or cancella-
tion, especially between the relatively low competence involved in recog-
nizing the triggering of a canon versus the much higher level required to
apply the canon in light of the full context of a statute. Statutory interpre-
tation is often a multilayered process that involves normative decisions,
specialized legal competence, and inferences from context.
173
Survey par-
ticipants may be able to competently invoke language generalizations
171. The research involving human subjects was approved by Georgetown University
IRB Protocol 00002711.
172. See supra notes 22–28 and accompanying text (discussing the Supreme Court’s
decision in McBoyle v. United States, 283 U.S. 25 (1931)).
173. See supra notes 73–75 and accompanying text (describing Justice Holmes’s view of
statutory interpretation); see also Eskridge, Interpreting Law, supra note 3, at 9–10
(discussing aspects of statutory interpretation that may require legal training, such as
determining whether there is binding judicial precedent or administrative practice that is
relevant to the statutory issue).
246 COLUMBIA LAW REVIEW [Vol. 122:213
when interpreting relatively decontextualized language but may not be
able to apply the full range of interpretive sources in a sophisticated
manner when engaging in a much more challenging mock-judging
experiment. For this reason, to assess the canons’ “triggering conditions,”
we present participants with relatively thin selections of language. This
design choice helps reduce the impact of other contextual features, which
may lead to canon application and cancellation eects.
A. A Description of the Study
Our first experiment tests whether ordinary people intuitively invoke
canons of interpretation. Participants evaluated scenarios designed to test
the triggering conditions of fourteen major canons of interpretation. Each
participant received scenarios in one of three formats: a legal context
(concerning laws), an ordinary context (concerning a company’s rule for
its employees), or a null context (using abstract language and fictional
terms to minimize irrelevant contextual eects). The vignettes, questions,
hypotheses, and analyses were preregistered at Open Science.
174
We recruited a sample of 4,500 participants from Lucid, a large survey
platform.
175
Lucid recruits participants based on nationally representative
quotas. This enables us to study a balanced sample of U.S. persons, with
respect to age, gender, ethnicity, and political aliation. The Appendix
174. See Kevin Tobia, Statutory Interpretation From the Outside, Open Science
Framework, https://osf.io/9tuw4/ (last updated May 24, 2021). For the experimental
design and sample questions, see infra Table 3 and the Appendix.
175. Lucid screens every participant with attention checks and open-ended questions,
using machine learning to screen out participants that do not respond with care. Profiling
Guide, Lucid (Sept. 15, 2021), https://support.lucidhq.com/s/article/Profiling-Guide (on
file with the Columbia Law Review). Lucid also uses technology including Google
reCAPTCHA to block bots. Researchers in psychology and cognitive science often use
platforms like Lucid and Mechanical Turk to recruit lay participants. See Adam J. Berinsky,
Gregory A. Huber & Gabriel S. Lenz, Evaluating Online Labor Markets for Experimental
Research: Amazon.com’s Mechanical Turk, 20 Pol. Analysis 351, 366 (2012) (“[Mechanical
Turk] potentially provides an important way to overcome the barrier to conducting research
raised by subject recruitment costs and diculties by providing easy and inexpensive access
to nonstudent adult subjects.”); Michael Buhrmester, Tracy Kwang & Samuel D. Gosling,
Amazon’s Mechanical Turk: A New Source of Inexpensive, Yet High-Quality Data?, 6 Persps.
on Psych. Sci. 3, 5 (2011); Alexander Coppock & Oliver A. McClellan, Validating the
Demographic, Political, Psychological, and Experimental Results Obtained From a New
Source of Online Survey Respondents, Rsch. & Pol., Jan.–Mar. 2019, at 1 (replicating the
research done by Berinksy, Huber & Lenz using the Lucid survey platform); Gabriele
Paolacci, Jesse Chandler & Panagiotis G. Ipeirotis, Running Experiments on Amazon
Mechanical Turk, 5 Judgment & Decision Making 411, 417 (2010). There are, of course,
some criticisms. See, e.g., Richard N. Landers & Tara S. Behrend, An Inconvenient Truth:
Arbitrary Distinctions Between Organizational, Mechanical Turk, and Other Convenience
Samples, 8 Indus. & Organizational Psych. 142, 152–53 (2015). This Essay uses Lucid to
provide a sample of competent users of the English language. The plausibility of this
assumption is strengthened when noting the striking similarity in judgments among the
Lucid sample (Study 1) and law students (Study 2).
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 247
contains a table with the full demographic information for the 4,500 par-
ticipants recruited and the 4,430 participants who passed the comprehen-
sion check and CAPTCHA questions and were thus included in the anal-
yses.
In each condition, participants received a consent form, followed by
a comprehension check question.
176
Participants were randomly divided
into one of three conditions (ordinary, legal, or null) and presented with
the appropriate introductory text, followed by an explanation of confi-
dence ratings (see Table 3).
T
ABLE 3. EXPERIMENTAL DESIGN
Ordinary Legal Null
Number of
questions
22 22
16 (excluding
questions that
cannot be tested in
the null context)
Introductory
text
In the following
screens, you will
see 22 short
questions about
dierent
fictional rules.
In the following
screens, you will
see 22 short
questions about
dierent
fictional laws.
In the following
screens, you will see
16 short questions
about dierent
fictional rules.
These rules contain
some English terms
and some fake
terms. The fake
terms will appear in
italics. For example,
you might read
about a rule
involving a pinol,
rabax, or vinut.
Confidence
text (same
for all)
Please pick the answer that you think is best, even if you
are unsure. After each question you can rate your
confidence in your answer. Please keep in mind that you
are not rating your own performance. Rather, you are
expressing your level of confidence that the answer you
chose is the correct one, based on the information
provided.
Example
q
uestion:
Imagine that a
com
p
an
y
has a
Imagine that
there is a law.
Imagine that there
is a rule. Part of that
176. Participants who failed the check question were not notified that they failed, were
able to continue taking the study, and were compensated fully for completing the study.
248 COLUMBIA LAW REVIEW [Vol. 122:213
singular
includes
plural
rule for its
employees. Part
of that rule
states that “It is
prohibited for
any person to
set o a rocket
on company
property.” Does
this part of the
rule mean:
• It is
prohibited for
any person to
set o one
rocket on
company
property
• It is
prohibited for
any person to
set o one or
more rockets
on company
property
Part of that law
states that “It is
prohibited for
any person to set
o a rocket
within the city
limits.” Does this
part of the law
mean:
• It is prohibited
for any person to
set o one
rocket within the
city limits
• It is prohibited
for any person to
set o one or
more rockets
within the city
limits
rule states that “It is
prohibited for any
person to puwets a
mokah.” Does this
part of the rule
mean:
• It is prohibited for
any person to puwets
one mokah
• It is prohibited for
any person to puwets
one or more mokahs
Confidence
question
(same for
all)
How confident are you in the above answer?
0 = not at all confident, to 10 = extremely confident
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 249
Participants assessed twenty-two questions in the legal and ordinary
conditions. The full list of legal, ordinary, and null condition questions is
available in the Appendix.
177
We have reproduced the prompts and answer
choices for the legal condition below.
Participants were randomly assigned to one condition (ordinary,
legal, or null). Each participant received questions in a random order. It
is possible that the order of questions might aect participants’ responses.
Perhaps, for example, contemplating a gender canon question might
aect one’s response to a later number canon question. To sidestep these
complications, in our preregistration we specified that our primary ana-
lyses would consider only the first question answered by each participant.
This process allows us to assess participants’ evaluation of each canon with-
out the potential influence on participants of reading or answering any
other canon question. In other words, for these analyses, each participant
is assigned to just one canon (the first question that they receive) in one
of three conditions (ordinary, legal, or null).
Below we present the results for each canon. The questions are from
the legal condition.
178
The ordinary context involved nearly identical lan-
guage that described a company’s rule rather than “a law.” The null con-
text always began, “Imagine that there is a rule. Part of that rule
describes . . . .”
179
The discussion below also indicates which answer we
preregistered as the answer that constitutes implicitly “invoking” or
“endorsing” the canon. That label was not included in the survey itself or
visible to participants. Answer choices were always displayed in a random
and counterbalanced order, as were the questions themselves. In consi-
deration of space, the details of statistical analyses are not presented here
in the main text but can be found in the Appendix.
B. Testing Category One Canons
Recall that the first category of canons includes interpretive principles
triggered by specific linguistic phenomena and requiring little context for
application.
180
These interpretive principles are typically relevant to the
177. In the null context, variable spaces were randomly filled with italicized five letter
nonce words, beginning and ending with a consonant. If the space filled from the ordinary
and legal context includes a prefix or sux, so did the new nonce term, and the full term
would be italicized. In the null context condition, participants received fewer questions.
Because noscitur a sociis and ejusdem generis cannot be tested with the null context paradigm,
questions 13a, 13b, 13c, and 14 were excluded. Moreover, in the null context version,
question 9a and 10a were equivalent, as were 9b and 10b. As such, only one version of those
questions was presented.
178. For the most detailed presentation and statistical analyses supporting these
conclusions, see infra Appendix.
179. For a full list of questions, see infra Appendix.
180. See supra section I.B.
250 COLUMBIA LAW REVIEW [Vol. 122:213
literal meaning of a provision and are often referred to as “semantic can-
ons” or “syntactic canons,” among other terms.
181
1. Gender Canons. — Although courts do not explicitly refer to a “gen-
der canon,”
182
there is a longstanding interpretive principle that the mas-
culine includes the feminine.
183
For instance, the Constitution refers fre-
quently to “he” and “his,” but there is little dispute today that those
pronouns include women.
184
The judicially created gender canon has
been codified by Congress and some states.
185
Courts have similarly indi-
cated that the feminine includes the masculine, although the judicial pre-
sumption may not be as strong.
186
The current gender canon may not cover all situations where a pro-
noun’s ordinary meaning is broader than its literal meaning.
187
Pronouns
are now a widely discussed component of the LGBTQ movement.
188
Historically, English lacked a standard gender-neutral singular third-
person personal pronoun, as “they” was thought to be ungrammatical in
such situations because it is a plural pronoun.
189
Recent nonlegal empirical
studies have indicated that “they” is now interpreted as gender-neutral,
including nonbinary/gender-nonconforming referents, and can be used
grammatically to reference a singular individual.
190
Our study included three possible gender canons, testing whether (a)
masculine, (b) feminine, and (c) plural (e.g., “they”) terms are inter-
preted narrowly or inclusively. In each question, participants could choose
181. See Scalia & Garner, supra note 3, at xii–xiii (listing and defining eleven “semantic
canons” and seven “syntactic canons”).
182. A search of Westlaw revealed no judicial references to a “gender canon,” although
the principle that the masculine includes the feminine is well established.
183. See Scalia & Garner, supra note 3, at 129 (noting that grammarians and
lexicographers have traditionally held that the masculine includes the feminine and that in
the Constitution, the male pronouns used to refer to the President are widely understood
to refer to a President of either sex); see also Curtis v. State, 645 S.E.2d 705, 709 (Ga. Ct.
App. 2007), overruled on other grounds by McClure v. State, 834 S.E.2d (Ga. 2019) (holding
that a statute that included masculine pronouns included the “feminine gender”).
184. See Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham
L. Rev. 453, 509–10 (2013) (describing the masculine pronouns in the Constitution).
185. See Linda D. Jellum & David Charles Hricik, Modern Statutory Interpretation:
Problems, Theories, and Lawyering Strategies 144 (2d ed. 2009).
186. See, e.g., In re Compensation of Williams, 635 P.2d 384, 386 (Or. Ct. App. 1981)
(“The word ‘woman’ is clear and merits no interpretation.”), a’d, 653 P.2d 970 (Or. 1982).
187. See supra section I.D.1 (explaining that the current set of interpretive canons may
be incomplete or inaccurate).
188. See Evan D. Bradley, Julia Salkind, Ally Moore & Sofi Teitsort, Singular ‘They’ and
Novel Pronouns: Gender-Neutral, Nonbinary, or Both?, 4 Proc. Linguistic Soc’y Am. 1, 1
(2019).
189. See id. at 1.
190. See id. at 4.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 251
from three possible meanings: The term includes all genders, the term
includes only men, or the term includes only women.
S
TUDY QUESTION 3A. GENDER CANON: HIS (LEGAL VERSION)
191
Imagine that there is a law. Part of that law describes that certain
benefits will be given to “Whoever files his form before May 1.” Does
this part of the law mean:
• Any person (male, female, or non-binary) who files before May
1 [endorsing]
• Only any man who files before May 1
• Only any woman who files before May 1
STUDY QUESTION 3B. GENDER CANON: HER (LEGAL VERSION)
Imagine that there is a law. Part of that law describes that certain
benefits will be given to “Whoever files her form before May 1.” Does
this part of the law mean:
• Any person (male, female, or non-binary) who files before May
1 [endorsing]
• Only any man who files before May 1
• Only any woman who files before May 1
STUDY QUESTION 3C. GENDER CANON: THEIR (LEGAL VERSION)
Imagine that there is a law. Part of that law describes that certain
benefits will be given to “Whoever files their form before May 1.” Does
this part of the law mean:
• Any person (male, female, or non-binary) that files before May
1 [endorsing]
• Only any man who files before May 1
• Only any woman who files before May 1
We found strong support that “his” and “their” are gender-inclusive.
Lay participants were more divided concerning whether “her” is gender-
inclusive. These results were consistent across contexts. The law student
sample (legal context only) interpreted all three more gender-inclusively.
191. The “[endorsing]” marker indicates which answer was preregistered as the answer
that constitutes implicitly “invoking” or “endorsing” the canon. That label was not included
in the survey itself or visible to participants. Otherwise, survey questions are reproduced
here exactly as they were presented to participants in the study.
252 COLUMBIA LAW REVIEW [Vol. 122:213
2. Number Canons. — The number canon provides that the singular
includes the plural (and vice versa).
192
Congress has codified the number
canon as it has the masculine gender canon.
193
Because “singular” and
“plural” are often contrasting concepts, some might understand this
canon as not an ordinary meaning canon because it selects a nonliteral
meaning for the singular (or plural) term.
194
According to Scalia and Gar-
ner, the proposition that the plural includes the singular is “not as logically
inevitable as the proposition that one includes multiple ones.”
195
We pre-
sented two questions to assess the two dierent number canons.
S
TUDY QUESTION 4A. NUMBER CANON: SINGULAR (LEGAL VERSION)
Imagine that there is a law. Part of that law states that “It is a
misdemeanor for any person to set o a rocket within the city limits.”
Does this part of the law mean:
• It is a misdemeanor for any person to set o one rocket within
the city limits
• It is a misdemeanor for any person to set o one or more rockets
within the city limits [endorsing]
STUDY QUESTION 4B. NUMBER CANON: PLURAL (LEGAL VERSION)
Imagine that there is a law. Part of that law states that “It is a
misdemeanor for any person to set o rockets within the city limits.”
Does this part of the law mean:
• It is a misdemeanor for any person to set o one or more rockets
within the city limits [endorsing]
• It is a misdemeanor for any person to set o two or more rockets
within the city limits
We found strong support for both canons in the ordinary and legal
conditions. There was support for the plural canon in the null context,
while results for the singular canon in the null context were mixed.
3. Conjunctive and Disjunctive Canons. — The conjunctive and disjunc-
tive canons provide that “and” combines items while “or” creates alterna-
tives.
196
Scalia and Garner argue that “[c]ompetent users of the language
192. See Scalia & Garner, supra note 3, at 129–30.
193. See id.
194. See supra note 91 and accompanying text (describing what we refer to as an
“ordinary meaning canon”).
195. See Scalia & Garner, supra note 3, at 130.
196. See id. at 116.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 253
rarely hesitate over their meaning.”
197
We included questions to test this
possibility.
S
TUDY QUESTION 1. CONJUNCTIVE CANON (LEGAL VERSION)
Imagine that there is a law. Part of that law describes “property and
buildings.” Does this part of the law mean:
• Both property and buildings [endorsing]
• Either property or buildings, or both
• Either property or buildings, but not both
STUDY QUESTION 2. DISJUNCTIVE CANON (LEGAL VERSION)
Imagine that there is a law. Part of that law describes “property or
buildings.” Does this part of the law mean:
• Both property and buildings
• Either property or buildings, or both [endorsing]
• Either property or buildings, but not both
There was strong support for the conjunctive canon in all three con-
texts. Results for the disjunctive canon, however, were more mixed, with
many participants choosing both the “and” option and the exclusive “or”
option (“or . . . but not both”). We take these results to suggest a more
complicated picture than Scalia and Garner’s prediction, confirming that
“and” and “or” are sensitive to grammatical context.
198
In some contexts,
“or” actually expresses “and” and vice versa.
199
4. Mandatory and Permissive Canons. — The mandatory/permissive
canon provides that mandatory words, such as “shall,” impose a duty while
permissible words, such as “may,” grant discretion.
200
Scalia and Garner
argue that “[t]he text of this canon is entirely clear, and its content so
obvious as to be hardly worth the saying.”
201
Our results strongly support
these claims. Unsurprisingly, people understood “may” permissively and
“shall” mandatorily.
197. Id.
198. See Ira P. Robbins, “And/Or” and the Proper Use of Legal Language, 77 Md. L.
Rev. 311, 317–18 (2018).
199. See Kenneth A. Adams & Alan S. Kaye, Revisiting the Ambiguity of “And” and “Or”
in Legal Drafting, 80 St. John’s L. Rev. 1167, 1172–91, 1195 (2006) (providing an in-depth
analysis of the ambiguities that can arise when using “and” and “or”).
200. See Scalia & Garner, supra note 3, at 112.
201. Id. (“The trouble comes in identifying which words are mandatory and which
permissive.”).
254 COLUMBIA LAW REVIEW [Vol. 122:213
STUDY QUESTION 5. MAY CANON (LEGAL VERSION)
Imagine that there is a law. Part of that law states that “Employees may
provide written notice.” Does this part of the law mean:
• Employees are permitted, but not required, to provide written
notice [endorsing]
• Employees are required to provide written notice
STUDY QUESTION 6. SHALL CANON (LEGAL VERSION)
Imagine that there is a law. Part of that law states that “Employees shall
provide written notice.” Does this part of the law mean:
• Employees are permitted, but not required, to provide written
notice
• Employees are required to provide written notice [endorsing]
5. Oxford Comma. — As discussed earlier, the “Oxford comma” rule
refers to a comma used after the penultimate item in a list of three or more
items, the presence of which can create an additional distinct item or cat-
egory.
202
S
TUDY QUESTION 7A. OXFORD COMMA (NO COMMA) (LEGAL VERSION)
Imagine that there is a law. Part of that law states that “Eligible work
includes: The canning, processing, preserving, storing, packing for
shipment or distribution of: (1) vegetables; (2) fruits; and (3) fish.”
Does this part of the law mean:
• Eligible work includes the canning, processing, preserving,
storing, packing for shipment, and packing for distribution of
1–3. [endorsing]
• Eligible work includes the canning, processing, preserving,
storing, packing for shipment, and distribution of 1–3.
Question 7b included a comma after the word “shipment” but was
otherwise identical.
203
Selecting the second option for question 7b was pre-
registered as endorsing the Oxford comma rule.
There was a significant dierence from chance for the Oxford “no
comma” question in the null condition, but not in the ordinary or legal
contexts; for the Oxford comma question, there were dierences in the
202. See supra notes 94–100 and accompanying text.
203. For a full list of the study questions (including question 7b and other questions not
listed in full here), see infra Appendix.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 255
ordinary and null, but not legal, contexts. In both cases (for questions 7a
and 7b), the dierences reflected endorsement of the second option. That
is, in the null context, participants tended toward the second option, even
for question 7a.
We also preregistered a comparison between questions 7a and 7b to
assess the eect of adding a comma. There were no significant dierences
from chance in the legal, ordinary, or null contexts. Section III.B presents
results from a law student sample. Overall, the results were very similar
across lay participant and law student samples, but here there was a small
dierence. Most law students chose the first option for question 7a but the
second option for question 7b. Thus, the law students were more sensitive
to the addition of the comma, and their responses were more consistent
with the predictions of the Oxford comma rule.
Overall, the results for the Oxford comma examples were fairly
mixed. Lay participants were divided between the two options, and the
addition of the comma did not make a significant dierence. These results
suggest that laypeople may not have a general intuitive interpretation for
Oxford comma examples. In other words, these results suggest that
whether the Oxford comma rule characterizes an ordinary interpretation
may depend especially heavily on context.
6. Presumption of Nonexclusive “Include”. — The presumption of non-
exclusive “include” provides that the word does not introduce an
exhaustive list.
204
S
TUDY QUESTION 8. PRESUMPTION OF NONEXCLUSIVE “INCLUDE” (LEGAL
VERSION)
Imagine that there is a law. Part of that law states that “The term ‘motor
vehicle’ shall include an automobile, automobile truck, automobile
wagon, or motor cycle.” Does this part of the law mean:
• The term ‘motor vehicle’ includes only automobiles, auto-
mobile trucks, automobile wagons, and motor cycles.
• The term ‘motor vehicle’ includes automobiles, automobile
trucks, automobile wagons, motor cycles, and some other
entities. [endorsing].
There was a significant dierence from chance for the nonexclusive
“include” question in the legal and null contexts. However, the pattern of
legal results was contrary to the canon’s application. Overall, the pattern
of results is mixed and supports the conclusion that there is neither strong
intuitive support for a nonexclusive “include” nor for an “exclusive” one.
204. See Scalia & Garner, supra note 3, at 132.
256 COLUMBIA LAW REVIEW [Vol. 122:213
7. Series-Qualifier Canon and Rule of the Last Antecedent. — Recall the
potential conflict between the rule of the last antecedent and the series-
qualifier canon, two canons created by lawyers—not linguists.
205
The for-
mer provides that a modifier generally refers to the nearest reasonable
antecedent,
206
but the latter provides that when there is a straightforward
parallel construction that involves all nouns or verbs in a series, a preposi-
tive or postpositive modifier normally applies to the entire series.
207
When
a modifier is set o from a series of antecedents by a comma, however, the
two canons agree on the proper interpretation.
208
The survey included four questions. To assess the impact of the
comma, the “9” versions include a comma, while the “10” do not. We also
considered the hypothesis that dissimilarity between the nearest anteced-
ent and other antecedents might increase the triggering of the rule of the
last antecedent. The question “b” versions replace “trucks” with “food
trucks,” with the hypothesis that the latter would be seen as more dissimi-
lar to the other antecedents.
S
TUDY QUESTION 9A. SERIES-QUALIFIER / LAST ANTECEDENT (COMMA,
RELATED) (LEGAL VERSION)
Imagine that there is a law. Part of that law states that “In parking area
A, people may park cars, mopeds, and trucks, on weekends.” Does this
part of the law mean:
• In parking area A, people may park cars on any day, mopeds on
any day, and trucks on only weekends.
• In parking area A, people may park cars on only weekends,
mopeds on only weekends, and trucks on only weekends.
[endorsing]
205. See supra notes 163–170 and accompanying text; see also Baude & Sachs, supra
note 85, at 1126–27 (“[N]obody proposed [the series-qualifier canon] as a canon until
Justice Scalia ‘pioneered it.’” (quoting Asher Steinberg, The Government Jumps o a Cli
in Lockhart v. U.S., and Why All Textualism Is (Constructive) Intentionalism, Narrowest
Grounds (Oct. 22, 2015), http://narrowestgrounds.blogspot.com/2015/10/the-government-
jumps-o-cli-in.html [https://perma.cc/R83H-BRRH])); LeClercq, supra note 168, at
204–07 (describing how the rule of the last antecedent was created by an attorney).
206. See supra Table 1.
207. See supra Table 1.
208. In such a case, the modifier would apply to all of the antecedents.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 257
STUDY QUESTION 10A. SERIES-QUALIFIER / LAST ANTECEDENT (NO COMMA,
RELATED) (LEGAL VERSION)
Imagine that there is a law. Part of that law states that “In parking area
A, people may park cars, mopeds, and trucks on weekends.” Does this
part of the law mean:
• In parking area A, people may park cars on any day, mopeds on
any day, and trucks on only weekends.
• In parking area A, people may park cars on only weekends,
mopeds on only weekends, and trucks on only weekends.
[endorsing]
There were significant dierences from chance in the ordinary con-
text for all four versions (9a, 9b, 10a, and 10b) and in the legal context for
all four versions. There were no significant dierences from chance in the
null context versions. In the ordinary and legal contexts, participants
tended to endorse the series-qualifier canon (i.e., choose the second
option). In the no-comma versions (10a and 10b), this endorsement is a
failure to invoke the rule of the last antecedent.
We also preregistered specific comparisons to assess the eect of the
comma (9a vs. 10a; 9b vs. 10b) and whether the relatedness of the last and
prior antecedents aects judgments (9a vs. 9b; 10a vs. 10b). Comparing
responses within each of the ordinary and legal conditions, we found no
significant dierences.
These results present a complex picture. The most straightforward
finding is that there is little evidence from this study that relatedness of
the antecedents matters; “truck” versus “food truck” made little dier-
ence. The comma also did not aect participants’ responses. Most
importantly, even without the comma (versions 10a, 10b), most laypeople
chose option two, consistent with the series-qualifier canon and flatly incon-
sistent with the rule of the last antecedent. Overall, the results provide
more support for the series-qualifier canon.
C. Testing Category Two Canons
Recall that the second category of interpretive canons includes those
textual canons triggered by a certain kind of linguistic formulation or con-
text, rather than by precise language.
209
Each of these canons interacts with
the literal meaning of a provision in some way, typically by narrowing it,
on the basis of inferences from context.
210
While these canons are trig-
gered by specific kinds of language, their application requires consid-
209. See supra notes 88–90 and accompanying text; supra section I.C.
210. See supra notes 108–109 and accompanying text.
258 COLUMBIA LAW REVIEW [Vol. 122:213
eration of the context of the communication. We focus though not on the
application or cancellation of these canons but rather seek to determine
whether ordinary people invoke these canons in accordance with their
triggers, even when little contextual evidence is provided.
1. Noscitur a Sociis. — The noscitur a sociis canon provides that the
meaning of words placed together in a statute should be determined in
light of the words with which they are associated.
211
As noted above, some
define the canon more narrowly as requiring ambiguity: When a word or
phrase in a list is ambiguous, its meaning “should be determined by the
words immediately surrounding it.”
212
We presented three scenarios test-
ing noscitur a sociis: one involving just surrounding words, one involving
some additional context, and one involving homonyms.
S
TUDY QUESTION 13A. NOSCITUR A SOCIIS: SURROUNDING WORDS (LEGAL
VERSION)
Imagine that there is a law. Part of that law describes “records,
documents, or tangible objects.” Does this part of the law mean:
• Records, documents, and tangible objects that are similar to
records or documents [endorsing]
• Records, documents, and all tangible objects (including, for
example, a fish)
Question 13b stated that “[p]art of that law describes erasing writing
from ‘records, documents, or tangible objects’” and was otherwise identi-
cal.
S
TUDY QUESTION 13C. NOSCITUR A SOCIIS: HOMONYMS (LEGAL VERSION)
Imagine that there is a law. Part of that law describes “a bank; a financial
institution; or a savings and loan association.” Does this part of the law
mean:
• terrain alongside the bed of a river (commonly known as a
“bank”); a financial institution; or a savings and loan association
• an institution for receiving, lending, exchanging and safe-
guarding money (commonly known as a “bank”); a financial
institution; or a savings and loan association [endorsing]
• terrain alongside the bed of a river (commonly known as a
“bank”); an institution for receiving, lending, exchanging and
safeguarding money (commonly known as a “bank”); a
financial institution; or a savings and loan association
211. See Scalia & Garner, supra note 3, at 195.
212. See Krishnakumar, Backdoor Purposivism, supra note 108, at 1305 (quoting
Noscitur a sociis, Black’s Law Dictionary (10th ed. 2014)).
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 259
Overall, there was strong evidence in favor of the intuitive applica-
tion of noscitur a sociis. There were significant dierences from chance for
all three questions in the legal context, in the predicted direction (62%
endorsing for 13a, 78% endorsing for 13b, and 88% endorsing for 13c).
There were significant dierences from chance in the ordinary condition
for 13b and 13c (83% and 77%, respectively), but there was no statistically
significant dierence for 13a (63% endorsing).
2. Ejusdem Generis. — The ejusdem generis canon provides that when
general words in a statute precede or follow a list of specific things, the
general words should be construed to include only objects similar in
nature to the specific words.
213
The ejusdem generis canon has been criti-
cized by some scholars as based on faulty linguistic premises.
214
Yet Gluck
and Bressman report that legislative staers are aware of and rely on
ejusdem generis, along with other Category Two canons.
215
Others have
defended the canon.
216
S
TUDY QUESTION 14. EJUSDEM GENERIS (LEGAL VERSION)
Imagine that there is a law. Part of that law refers to “gin, bourbon,
vodka, rum, and other beverages.” Does this part of the law mean:
• Gin, bourbon, vodka, rum, and other alcoholic beverages
[endorsing]
• Gin, bourbon, vodka, rum, and other alcoholic and non-
alcoholic beverages (including, for example, orange juice)
213. See Scalia & Garner, supra note 3, at 199. There is a dispute about whether the
canon is properly applied to cases where the generalization precedes rather than follows a
list. See Gregory R. Englert, The Other Side of Ejusdem Generis, 11 Scribes J. Legal Writing
51, 52–53 (2007) (noting that whether a court applies the canon may rest on which
secondary source a court relies on for its definition of ejusdem generis).
214. See Dickerson, supra note 115, at 234 (questioning whether ejusdem generis is
lexicographically accurate).
215. See Manning, Inside Congress’s Mind, supra note 40, at 1937 n.152 (“While not
able to identify these canons by their Latin names, most of the staers surveyed knew of and
embraced the concepts behind the negative implication canon (expressio unius) and the
word association canons (noscitur a sociis and ejusdem generis).” (citing Gluck & Bressman,
Statutory Interpretation Part I, supra note 33, at 932–33)). Gluck and Bressman report on
noscitur a sociis, ejusdem generis, the rule against superfluities, expressio unius, in pari materia,
the whole act rule, and the whole code rule. Gluck & Bressman, Statutory Interpretation
Part I, supra note 33, at 932–33.
216. See, e.g., Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv.
L. Rev. 405, 455 (1989) (“[E]jusdem generis . . . derives from an understanding that the
general words are probably not meant to include matters entirely far afield from the specific
enumeration. If understood to be truly general, the general words would make the specific
enumeration redundant.”).
260 COLUMBIA LAW REVIEW [Vol. 122:213
Overall, there was support for the canon. Participants intuitively
applied the canon at rates significantly greater than chance in the legal
condition (70%), but not the ordinary condition (62%).
3. Expressio Unius Est Exclusio Alterius. — Recall that the expressio unius
est exclusio alterius canon provides that when a statute expresses something
explicitly (usually in a list), anything not expressed explicitly does not fall
within the statute.
217
The trigger for the canon—the explicit expression of
one thing + an argument that some implicit term is also included—is
obviously too broad to serve as a generalization about language usage.
218
As a result, the canon has been widely criticized.
219
Nevertheless, some
have suggested that the canon may guide legislative drafters.
220
It remains
possible that the canon could be defined more narrowly so that it more
precisely captures a language generalization, such as applying only to lists
or series of terms under certain circumstances.
221
217. See supra note 112 and accompanying text. Some scholars have defended the
canon as being consistent with linguistic principles. See, e.g., Sinclair, supra note 153, at
414–20.
218. See supra notes 153–156 and accompanying text.
219. See William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 Duke L.J. 1215,
1250 (2001) (“Law professors consider [the expressio unius] canon unreliable or even
bogus.”).
220. See William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court, 1993 Term—
Foreword: Law as Equilibrium, 108 Harv. L. Rev. 26, 67 (1994) (noting that, even if the
empirical assumptions underlying the expressio unius canon are suspect, the canon remains
valuable as a signal to legislative drafters “if it is usually respected, as it is by the current
Court”).
221. See Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 81 (2002) (“The [expressio unius]
canon depends on identifying a series of two or more terms or things that should be
understood to go hand in hand, which is abridged in circumstances supporting a sensible
inference that the term left out must have been meant to be excluded.”); see also, e.g.,
Eskridge & Ferejohn, supra note 219, at 1250 (“[F]or super-statutes, inclusio unius applies
only when the new item on a list would derogate from the principle or policy that is the
baseline for that statute.”); Sunstein, supra note 216, at 456 (arguing that the canon is
“helpful . . . [w]hen it is plausible to assume that Congress has considered all the
alternatives”).
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 261
STUDY QUESTION 11. EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS (LEGAL
VERSION)
Imagine that there is a law. Part of that law states that “No one may enter
restaurants with dogs or cats.” Jim enters a restaurant with a pet rabbit.
Does this part of the law mean:
• No one may enter restaurants with dogs, no one may enter
restaurants with cats, and no one may enter restaurants with
some other entities (such as a pet rabbit).
• No one may enter restaurants with dogs, no one may enter
restaurants with cats, and there is no other prohibition on
entering restaurants with anything. [endorsing]
The results for expressio unius indicated a lack of support for the
canon. In the ordinary condition, participants did not implicitly invoke the
canon (only 36% endorsing). In the legal condition, participants were di-
vided (52% endorsing).
4. Quantifier Domain Restriction Canon. — A potential quantifier
domain restriction canon would provide that the scope of a universal
quantifier (e.g., “all,” “any”) is typically restricted by context.
222
Currently,
the typical judicial assumption is that universal quantifiers are unlimited
in scope. Linguists and philosophers, however, have argued that ordinary
people restrict the domains of universal quantifiers even when very little
context is provided.
223
We included one possibility to assess understanding
of universal quantifiers in rules.
STUDY QUESTION 12. QUANTIFIER DOMAIN RESTRICTION (LEGAL VERSION)
Imagine that there is a law. Part of that law describes “any law
enforcement ocer.” Does this part of the law mean:
• All law enforcement ocers, anywhere in the world
• Some law enforcement ocers, anywhere in the world
[endorsing]
• All law enforcement ocers, in the country in which the law was
passed [endorsing]
• Some law enforcement ocers, in the country in which the law
was passed [endorsing]
222. See supra notes 138–151 and accompanying text.
223. See supra note 151 and accompanying text.
262 COLUMBIA LAW REVIEW [Vol. 122:213
Most participants, in the ordinary and legal contexts, chose the third
option, restricting the scope of “any.” In the null context, there was a dra-
matic dierence, with more participants selecting the first option. This
result is sensible. Participants had very little context; they evaluated “a
rule” about a nonce term like “any volips.” Most understand that rule to
include any “volip” in the world. What is more striking is that with just a
tiny amount of context (see, e.g., the legal version above), participants
restrict the scope of “any.”
III.
DO THE CANONS REFLECT ORDINARY MEANING?
Part II describes our experimental study of ordinary people and the
results for each canon. Part III uses these results to illustrate some broader
implications. As explained below, the overall pattern of results is notable.
Although most ordinary people have not been taught these legal canons,
their judgments of meaning intuitively reflect many of the canons. The
results were largely consistent across the ordinary and legal contexts. This
Part first describes some of the connections between the canons, such as
whether there was a positive or negative relationship between the in-
vocation of dierent canons. It also describes our second study, which
recruited a sample of U.S. law students to answer the legal condition ques-
tions. The results largely track those of the first study, with the law students
generally implicitly invoking the canons more often than ordinary people.
Finally, to make the results as accessible as possible, this Part includes a
chart that classifies each canon roughly by its invocation level. These
categorizations are very rough, but we hope that this exercise nevertheless
provides more clarity about the broad support for many of the canons
across both the legal and ordinary conditions.
A. Broader Empirical Findings
1. Overall Pattern of Canon Endorsement. — Figure 2 reports the per-
centage of participants implicitly invoking each canon, across all three
contexts. The results are presented including only the participant’s first
question (“First Question”) and including a participant’s answer to every
question (“All Questions”). Blue circles reflect agreement with the canon,
while orange circles reflect disagreement. Darker colors reflect stronger
agreement/disagreement.
As Figure 2 indicates, the results were largely consistent across all
three contexts, especially the ordinary and legal contexts. The results also
do not vary dramatically when comparing participants’ first-question
responses to data that reflects participants’ responses to every question.
We also analyzed the results statistically, in line with our pre-
registration, evaluating whether the percentage of implicit application of
each canon diered from chance, across each of the three conditions. As
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 263
explained above (and as preregistered), we only considered each partic-
ipant’s first canon question. For example, in the ordinary condition, sixty-
four participants saw the “gender: his” question first. Of those, fifty-four
(84.4%) chose that the rule means any person (men, women, or non-
binary); seven (10.9%) chose that the rule means only any man; and three
(4.7%) chose that the rule means only any woman. This distribution diers
significantly from chance (i.e., a 33.3%, 33.3%, 33.3% distribution), X
2
=
76.2, p < .0001.
224
The full results of these comparisons are reported in the
Appendix.
224. A chi-square test assesses whether there is a statistically significant dierence
between the expected frequencies and the observed frequencies in a contingency table.
264 COLUMBIA LAW REVIEW [Vol. 122:213
FIGURE 2. PERCENTAGE IMPLICITLY INVOKING THE CANONS
225
2. Confidence Ratings. — After each question, participants reported
their confidence on a scale from zero to ten. Mean overall confidence
ratings diered significantly across contexts. They were highest in the
225. In Figure 2, “SQ” refers to the series-qualifier and rule of the last antecedent
examples. We tested four versions of that scenario (with or without a comma; with related
or unrelated terms in the series) in two contexts (ordinary and legal) and two versions in
the null context.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 265
ordinary context, intermediate in the legal context, and substantially lower
in the null context.
226
The relative confidence ratings for each question
were similar across contexts. Finally, across all contexts, participants were
comparatively more confident about many of the same questions (e.g.,
gender: their, number: plural) and comparatively less confident about
many of the others (e.g., expressio unius, Oxford comma).
227
3. Relationships Among the Implicit Applications of Dierent Canons. — We
were also interested in assessing the (positive or negative) relationship
between invocation of dierent canons. For example, is someone who
(implicitly) invokes noscitur a sociis more likely to (implicitly) invoke
ejusdem generis? To assess this question, we computed tetrachoric corre-
lations across all canons, comparing invocation to non-invocation. Figure
3 displays these correlation coecients, where darker blue indicates
stronger positive associations, white indicates no association, and darker
orange indicates stronger negative associations.
As the figure indicates, implicit invocation of many canons was posi-
tively associated with implicit invocation of certain others. Some of these
are unsurprising. For example, implicit invocation of the series-qualifier
canon in one version was positively associated with implicit invo-
cation of that canon in the other three versions.
There was a correlation between the implicit invocation of canons
that are (seemingly) unrelated. For example, interpreting “their” or “his”
as including female or nonbinary persons was associated with interpreting
singulars as inclusive of plurals and plurals as inclusive of singulars. That
result might suggest that some participants were inclined to generalize
when interpreting rules: The same participant that interprets “his”
broadly also interprets singular terms broadly.
That idea, however—that (many) participants were “broad inter-
preters”—does not adequately explain other relationships. For example,
there was an association between invoking the gender and number can-
ons, and also with invoking noscitur a sociis. In the experimental materials,
invoking the noscitur canon narrows the meaning of a term in a list, in light
of the surrounding words and/or context. An alternative interpretation of
the striking correlations among canon applications is that many involve a
226. Across all sixteen shared questions, the estimated marginal mean confidence
rating was 8.57 (95% Confidence Interval (CI): 8.47, 8.66) in the ordinary context; 8.32
(95% CI: 8.22, 8.41) in the legal context; and 7.06 (95% CI: 6.96, 7.16) in the null context.
A generalized linear model found a significant eect of the null context on confidence
ratings, Odds Ratio (OR) = .286 (95% CI: .249, .329), p < .00001, and a significant eect of
the ordinary context, OR = 1.283 (95% CI: 1.116, 1.474), p < .00001.
227. No mean ratings were below 5.00. The null context participants did not receive two
series-qualifier questions, the noscitur a sociis questions, or the ejusdem generis questions; as
such, there are no confidence ratings for those questions.
266 COLUMBIA LAW REVIEW [Vol. 122:213
type of nonliteral interpretation. What we mean by “nonliteral” is that read-
ers expand or contract meaning according to context. This idea could
unify many of the canons: from Category One canons, like the gender and
number canons, to Category Two canons, like noscitur a sociis. This Essay
develops this idea in Part IV.
F
IGURE 3. CORRELATIONS AMONG IMPLICIT INVOCATION OF CANONS
Each cell indicates the correlation between endorsing two canons.
Darker blue indicates larger positive correlation and darker orange indi-
cates larger negative correlation. For example, endorsing “gender: his”
(i.e., “his” takes a gender-inclusive meaning) is positively correlated (.54)
with endorsing “gender: her” (i.e., “her” takes a gender-inclusive mean-
ing).
B. Extending the Study With a Law Student Sample
Some might have concerns about Study 1’s online convenience sam-
ple of laypeople. Scholars have defended the use of these research plat-
forms in law and psychology research.
228
But some readers might still worry
228. Krin Irvine, David A. Homan & Tess Wilkinson-Ryan, Law and Psychology Grows
Up, Goes Online, and Replicates, 15 J. Empirical Legal Stud. 320, 322–23 (2018) (arguing
that cheap, online research, done properly, can be perfectly eective).
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 267
about online convenience samples. Perhaps, some might argue, those par-
ticipants are not suciently attentive or representative of “ordi-
nary people.”
Concerning attention, we used several attention/comprehension
checks and also relied upon a survey platform that prescreens participants
for attentiveness. Moreover, the results do not support the contention that
participants were answering randomly. If participants were answering ran-
domly, one would expect canon invocation to be no dierent from chance
(50% implicit application of most canons). We found, however, that partic-
ipants invoked certain answers at rates greater than chance (see Figure 2).
Additionally, the answers invoked were not just arbitrary; rather, they were
the answers consistent with the canons’ triggering hypotheses.
Concerning representativeness, insofar as ordinary meaning interpre-
tation is concerned with how (all) people would understand legal texts, we
think that to rely on our lay sample is certainly better than to rely on the
intuition of one judge (or commentator). Our sample is demo-
graphically diverse in terms of gender, race, political orientation, income,
and U.S. geography (see Appendix). Still, our sample is not a perfect
reflection of all aspects of the population. Some features of our population
are not shared by every American: To take the survey, all of our online
participants must speak English and have access to a mobile phone or com-
puter. As such, there are other members of the public that our survey may
not adequately reflect, including Americans whose primary language is not
English. Future work on “ordinary” and “public” meaning should take
seriously the potential impact of neglecting those members of the public
in its theory or research.
229
Our second study provides a further empirical response to concerns
about Study 1’s sample.
230
We recruited a sample of U.S. law students from
four legislation classes at two U.S. law schools. The students were recruited
before or during the first week of class. This Essay thus does not concep-
tualize this population as one of “legal experts.” Rather, we recruited U.S.
law students who have not yet taken legislation or administrative law in an
eort to recruit a population that should be understood by our readers as
“suciently sophisticated ordinary people.” These are participants that
have not yet learned the interpretive canons in a legislation course, but
they are highly educated and likely attentive in survey taking.
229. For one article grappling with diverse linguistic communities, see generally
Christina Mulligan, Michael Douma, Hans Lind & Brian Quinn, Founding-Era Translations
of the U.S. Constitution, 31 Const. Comment. 1 (2016).
230. See Irvine et al., supra note 228, at 322 (demonstrating that for some projects in
law and psychology, online convenience sample studies replicate in-person studies).
268 COLUMBIA LAW REVIEW [Vol. 122:213
Participants evaluated twenty-two scenarios designed to test the can-
ons’ triggering conditions.
231
These were the same twenty-two scenarios
presented in the legal context to the lay participants. Each participant
received the scenarios in the legal context (concerning laws).
232
The find-
ings are remarkably consistent with those of Study 1.
The law student sample implicitly invoked nearly all of the canons that
the lay sample implicitly invoked.
233
In many cases, a greater proportion of
the law students invoked the canon’s answer. The law student sample also
supported some canons whose statuses were more unclear in the lay sam-
ple, such as the “gender: hers” canon. Both samples failed to implicitly
invoke the rule of the last antecedent, which predicts the opposite of the
series-qualifier canon in our series-qualifier cases.
There were five small dierences. First, where the lay sample was
divided about “gender: hers,” the law student sample was more inclined
to evaluate “hers” inclusively, in line with the proposed canon. Second,
where the lay sample tended to not adhere to the presumption of a non-
exclusive “include,” the law sample was divided (i.e., did not reject it).
Third, the law sample accepted expressio unius. Fourth, the law and lay sam-
ples diered on the conjunctive canon. Finally, the law students were more
sensitive to the addition of the Oxford comma.
231. One hundred and thirty-three participants began taking the study. Ten did not
proceed far into the study (and entered no demographic information), and one failed the
comprehension check question. Following our preregistration, we analyzed results for the
remaining 122 students.
232. The full vignettes, questions, hypotheses, and proposed analyses were all
preregistered at Open Science (osf.io).
233. The law student sample was 60.7% female, 37.7% male, and 0.8% transgender,
while 0.8% of students preferred not to respond. The mean age was 26.5 (Standard
Deviation (SD) = 6.1). Nearly all who reported their year of law school were in their first
year (98.5%). Regarding political views, 66.9% self-identified as liberal, 15.1% as “middle of
the road,” and 17.9% as conservative.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 269
FIGURE 4. PERCENTAGE OF LAW STUDENTS (N = 122) AND LAYPEOPLE (N =
1478) INVOKING THE CANONS, IN THE LEGAL CONTEXT
234
270 COLUMBIA LAW REVIEW [Vol. 122:213
C. General Conclusions From the Experimental Studies
This section provides some broader insights into the key takeaways of
our two studies in a more general and accessible way. We classify each
canon roughly by its invocation level. These categorizations are very rough,
but we hope that this exercise nevertheless provides more clarity about
what one might plausibly conclude from this study.
Table 4 categorizes each canon from “strongly invoked” to “not
invoked,” based on the results of Study 1. The table criteria are as follows:
• If both the ordinary and legal context results diered significantly
from chance in the predicted direction (i.e., consistently with the
canon’s application), the canon is categorized as “strongly
invoked.”
235
• If the results in only one context diered significantly from chance
in the predicted direction, the canon is categorized as “invoked.”
• If the results in one or more contexts diered significantly from
chance in a nonpredicted direction (i.e., inconsistently with the
canon’s prediction), the canon is categorized as “not invoked.”
• If multiple of the conditions above are met, or if none is met, the
canon is categorized as “unclear.”
Our primary focus in Table 4 is Study 1’s lay sample, a demograph-
ically representative sample of U.S. persons. The results from the law stu-
dents (Study 2) are reflected in the annotations “*” and “–”. If the law
student sample invoked a canon at rates greater than chance, a “*” mark
appears. If the law students failed to invoke the canon, a “–” mark appears.
234. In Figure 4, “SQ” refers to the series-qualifier and rule of the last antecedent
examples. We tested four versions (with or without a comma, with related or unrelated terms
in the series).
235. Here we focus on the ordinary and legal context for two reasons. For one, the
“null” results were reported with less confidence, and we take those more cautiously. Two,
some canons were not possible to present at all in the null context (e.g., noscitur a sociis).
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 271
TABLE 4. SUMMARY OF CANON IMPLICIT INVOCATION
Strongly Invoked
- Conjunction –
- Gender: his *
- Gender: their *
- Singular includes plural *
- Plural includes singular *
- May *
- Shall *
- Noscitur a sociis (words and context) *
- Noscitur a sociis (homonyms) *
- Series-qualifier *
Invoked
- Oxford comma *
- Noscitur a sociis (surrounding words) *
- Ejusdem generis *
- Quantifier domain restriction *
Unclear
- Oxford “no comma”
- Gender: hers *
Not Invoked
- Disjunction *
- Expressio unius
- Nonexclusive “include”
- Rule of the last antecedent
* indicates law student invocation
– indicates law student rejection
no annotation indicates unclear results among law students
The overall pattern of results is notable. Although most ordinary peo-
ple have not been specifically taught these legal canons—such as noscitur
a sociis or ejusdem generis—their judgments of meaning intuitively reflect
these rules.
There are some exceptions. For example, participants’ judgments
strongly conflicted with the guidance of the rule of the last antecedent
(which makes the opposite prediction from the series-qualifier canon in
the cases we tested). For other canons, categorized as “unclear,” the results
were less straightforward. For example, lay participants were very divided
about whether rules about “her” include only women or include men,
women, and nonbinary persons. Law student participants, however, largely
judged “her” as gender inclusive.
272 COLUMBIA LAW REVIEW [Vol. 122:213
Before turning to the next Part, we address some possible objections
to our study. One (inevitable) limitation of our design is the finite number
of examples for each canon. For example, we include four hypothetical
variations designed to assess the series-qualifier and last antecedent canons
(across multiple “contexts”), resulting in ten questions. For other canons
(like ejusdem generis) we only have two examples. One possible objection is
that our conclusions about a “canon” would be more convincing if we
tested five, or twenty, or one hundred examples. We agree. Our confi-
dence in our conclusions would increase upon evidence that the results
extend to additional examples, and our confidence would decrease upon
evidence to the contrary. In other words, we see this objection as broadly
in agreement with our view about the debate: The future of legal inquiry
into “ordinary meaning” should continue to rely on empirical evidence.
Our project is a first step in this new direction; we claim to contribute to
these debates, not to definitively resolve them.
There is a stronger possible version of this objection, which is that our
studies are so small that one should not take the results to have any signifi-
cance. With this we disagree. We recognize the (inevitable) issue raised by
testing a finite number of examples for each canon. But this, we contend,
does not render the study “meaningless.” We tested a large number of
canons, with a large number of participants, with both layperson and law
student samples, in three dierent modes of presentation (contexts).
236
In particular, the variance in the modes of presentation supports our
claims. For example, in the ordinary and legal contexts, the question test-
ing the “plural-includes-singular” canon involves rockets. Perhaps there is
something special about sentences involving rockets that drives our results.
The null context helps address this worry by replacing such potentially
influential terms (e.g., rockets) with nonce terms:
Imagine that there is a rule. Part of that rule states that “It is prohib-
ited for any person to jiman patols.” Does this part of the rule mean:
• It is prohibited for any person to jiman two or more patols.
• It is prohibited for any person to jiman one or more patols.
[endorsing]
We hope the null context findings reinforce confidence that the results
are not the product of irrelevant or unimportant features of the ordinary
or legal examples (e.g., something special about firing rockets).
A second worry is that some results may appear “obvious.” We do not
find all of our results obvious; the study helps inform contentious debates
about conflicting canons (rule of the last antecedent versus series-
qualifier) and also provides evidence of entirely new canons. More
broadly, although some may have claimed or hypothesized that certain can-
ons reflect ordinary meaning, we see our study as providing evidence about
236. See supra Figures 1 and 2.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 273
those claims. To those who claim that a certain canon is “obviously” a
reflection of ordinary meaning, we oer our study as evidence upon which
they can now rely.
Our study is the first in the legal literature to use experimental meth-
ods to assess these legal questions about ordinary meaning. To be sure,
there is highly relevant work in experimental psycholinguistics, semantics,
and philosophy of language.
237
We believe ordinary meaning theories of
legal interpretation should look to empirical evidence from these fields.
238
This study, however, is designed with specific legal questions in mind. We
see it as oering particularly useful and novel evidence to legal debates.
General experimental linguistic studies do not usually consider dier-
ences between ordinary and legal cognition. Here we focus directly on that
possibility. Moreover, although some extant linguistic studies provide
insight into how legal interpretive canons might apply, our study takes a
step forward by articulating and testing legal canons’ precise triggering
conditions.
The way in which we understand the relationship between our exper-
imental study and existing work in theoretical linguistics (and legal the-
ory) can be illustrated by an analogy to linguistics. Before the rise of
experimental linguistics, theoretical linguists made a number of empirical
claims about language. As one example, theoretical linguistics often
claimed that certain sentences were “acceptable,” while others were not.
239
These were typically oered as “intuitions,” assumed to be shared across
(all) people within a linguistic community, but often tested informally
among just a handful of colleagues.
240
A seminal experimental study set
out to test whether those claims actually reflected how people understood
237. See generally Michael Devitt, Whither Experimental Semantics?, 27 Theoria 5
(2012) (proposing a methodology to better use experiments to test linguistic usage); Teenie
Matlock & Bodo Winter, Experimental Semantics, in The Oxford Handbook of Linguistic
Analysis 771 (Bernd Heine & Heiko Narrog eds., 2d ed. 2015) (providing an overview of
experimental semantics and discussing multiple methods and studies in this field). As one
example, consider research in experimental linguistics on recency and attachment. See,
e.g., Edward Gibson, Neal Pearlmutter, Enriqueta Canseco-Gonzalez & Gregory Hickok,
Recency Preference in the Human Sentence Processing Mechanism, 59 Cognition 23
(1996) [hereinafter Gibson et al., Recency Preference]. Research suggests that laypeople
(often) prefer recent attachment. For example, consider the sentence “John said Bill died
yesterday.” People attach “yesterday” to “died” (the more recently processed phrase),
rather than to “said.” Edward Gibson, Neal J. Pearlmutter & Vicenc Torrens, Recency and
Lexical Preferences in Spanish, 27 Memory & Cognition 603, 603 (1999). There are,
however, other notable exceptions to recency preference. Gibson et al., Recency Preference,
supra, at 41–42 (suggesting “Predicate Proximity” as an alternate factor in human sentence
processing).
238. See infra Part IV.
239. See, e.g., Jon Sprouse, A Validation of Amazon Mechanical Turk for the Collection
of Acceptability Judgments in Linguistic Theory, 43 Behav. Rsch. Methods 155, 155 (2011).
240. See, e.g., id.; see also Acceptability in Language (Sidney Greenbaum ed., 1977).
274 COLUMBIA LAW REVIEW [Vol. 122:213
language.
241
Researchers conducted a large experiment, asking laypeople
to assess a random sample of acceptability cases taken from judgments
made by theorists in an influential journal of linguistic theory. As it hap-
pens, the experimental results overwhelmingly confirmed the theo-
rists’ intuitive assumptions.
242
We see our experimental study similarly. We are building on tremen-
dously important linguistic and legal scholarship related to law’s interpre-
tive canons.
243
Our study might have supported that some canons reflect
ordinary meaning—or not. The key point is that, whatever our study found,
we now have empirical data to assess prior claims. As Part IV discusses, this
experimental approach does not close the door on more theoretical work.
To the contrary, it invites it.
244
Of course, thoughtful readers might still
worry that there are other idiosyncratic elements of our vignettes (shared
by even the null context version) and that these features explain our
results. For example, perhaps ordinary people intuitively judge that the
plural includes the singular only in prohibitory rules but not in permissive
rules. We welcome those empirically testable hypotheses. It is impossible
to assess every such hypothesis in this Essay, but we hope and expect that
further empirical research will help refine the triggering conditions of can-
ons, as well as the circumstances of their application and cancellation.
IV.
RETHINKING ORDINARY MEANING AND INTERPRETIVE CANONS
Textual canons are often assumed to reflect ordinary meaning, but
whether they do is an empirical question. Thus far, we have developed a
theory and framework for empirically testing legal interpretive canons and
conducted the first experimental study of whether ordinary people implic-
itly invoke canons.
245
Parts II and III elaborate on the experiments’ impli-
cations for the canons. The evidence suggests that ordinary people inter-
pret rules consistently with many longstanding canons but inconsistently
with others. The results also reveal that people interpret rules in line with
two new canons.
246
This evidence is crucial to interpretive theories (e.g.,
textualism) that justify interpretive canons as reflections of ordinary
meaning. Beyond relying on tradition, interpreters can now look to actual
241. See Jon Sprouse, Carson T. Shütze & Diogo Almeida, A Comparison of Informal
and Formal Acceptability Judgments Using a Random Sample From Linguistic Inquiry 2001–
2010, 134 Lingua 219, 219–20 (2013).
242. See id. at 236.
243. See, e.g., Eskridge, Interpreting Law, supra note 3; Scalia & Garner, supra note 3;
Slocum, Ordinary Meaning, supra note 3; Solan, supra note 3.
244. See infra Part IV.
245. More specifically, we tested whether ordinary people implicitly invoke the canons
in accordance with the circumstances that trigger their applicability. See supra Parts I–III.
246. These are canons that have never before been acknowledged as canons, but that
equally guide ordinary interpretation of rules. See supra Part II.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 275
evidence about the canons. We see our results as providing some crucial
data to that project but recognize that future empirical work may consider
other canons or variations on our research questions. Here, we consider
our findings as a springboard for a future research plan.
This Part turns to the broader implications of our empirical work,
concerning more fundamental issues of legal interpretation. The broadest
implication concerns the ordinary meaning doctrine itself.
247
Courts tend
to treat ordinary meaning as a question about nonlegal ordinary language,
but some critics view the doctrine as wholly inaccurate: Statutes contain
legal language, not ordinary language. Our empirical findings suggest that
this debate may need to be refocused. Our findings are consistent with the
idea that ordinary people understand many types of ordinary and legal
rules similarly. This finding suggests a dierent way forward. Theorists
should consider whether the ordinary meaning doctrine should focus not
on the meaning of “ordinary language” or “legal language,” but rather on
the meaning of language within rules.
A second broad implication builds on this reconceptualization of
ordinary meaning.
248
Some scholars have suggested that the interpretive
canons generally function to narrow meaning, leading to jurisprudentially
conservative results.
249
Our results point toward a dierent unifying aspect
of linguistic canons. We find that across a range of cases, people interpret
rules with an intuitive anti-literalism: Singular terms also include plurals,
masculine pronouns also include feminine ones, the literal meanings of
terms are restricted by the surrounding words and context, quantifiers like
“any” are understood with a restricted scope, and so on. Anti-literalism
does not always lead to narrower interpretations. This is a particularly sig-
nificant finding, given that in recent Terms, Supreme Court Justices have
taken to jousting with each other, indicting certain forms of textual-
ism as false “literalism.”
250
Finally, building on these insights, we propose a new empirical
research agenda at the intersection of law and language.
251
A key feature
of this agenda is dynamism. Insofar as ordinary meaning provides reasons
to apply an interpretive canon, the set of interpretive canons should be
understood as dynamic rather than static. Canons are most often identified
247. See infra section IV.A.
248. See infra section IV.B.
249. See infra notes 309–310 and accompanying text (describing David Shapiro’s theory
of the canons).
250. See, e.g., Niz-Chavez v. Garland, 141 S. Ct. 1474, 1491–92 (2021) (Kavanaugh, J.,
dissenting) (chiding the majority for relying on the literal meaning of the word “a”);
Bostock v. Clayton County, 140 S. Ct. 1731, 1824–25 (2020) (Kavanaugh, J., dissenting)
(declining to apply the majority’s “literalist” reading).
251. See infra section IV.C.
276 COLUMBIA LAW REVIEW [Vol. 122:213
simply by tradition.
252
This Essay is the first to contemplate and demon-
strate the possibility of discovering further canons via ordinary meaning.
We discover two—the “nonbinary gender canon” and the “quantifier
domain restriction canon.” But we see this as just the start of a much larger
research program. Our experiments raise other questions for future work,
including whether all ordinary people understand rules in precisely the
same way, and how the canons—once triggered—are intuitively applied
and cancelled.
The arguments in this Part can all be seen not only as refinements to
ordinary meaning theory but also as challenges to certain common textu-
alist beliefs or practices. Insofar as ordinary meaning is justified by rule of
law values (e.g., publicity, fair notice), our results support the conclusion
that interpreters should be much more attentive to context. This includes
the “rule-like” contextual features of language implicated in legal
interpretive disputes. Moreover, interpreters should recognize and grap-
ple with the intuitive anti-literalism that characterizes ordinary people’s
understanding of rules. Finally, interpreters should acknowledge that
ordinary meaning canons are an open set; not all of the relevant ordinary
linguistic practices have been identified by judicial intuition or legal tradi-
tion. If textualist theory is committed to an accurate understanding of
language and ordinary meaning, it must not ignore empirical realities
about how ordinary people understand language.
253
A common thread runs through this Part’s arguments: As legal
interpreters increasingly rely on ordinary meaning, they should do so not
merely by intuition or tradition but with reference to actual facts about
how people understand language. As Parts II and III illustrate, empirical
studies can help uncover which canons are actually supported by ordinary
meaning. As this Part demonstrates, empirical study can also help make
progress on longstanding debates about deeper and more fundamental
questions in interpretation theory.
252. Cf. Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W.
Rsrv. L. Rev. 581, 583 (1990) (“Once [canons] have been long indulged, they acquire a sort
of prescriptive validity, since the legislature presumably has them in mind when it chooses
its language—as would be the case, for example, if the Supreme Court were to announce . . .
that ‘is’ shall be interpreted to mean ‘is not.’”). For the seminal works in dynamic inter-
pretation, see William N. Eskridge, Jr., Dynamic Statutory Interpretation (1994); William N.
Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. Pa. L. Rev. 1479 (1987). We see our
study of the canons as complementary to such a dynamic approach, clarifying a way in which
the generalizations explaining ordinary people’s understanding of legal rules may evolve
over time.
253. Currently, there is a debate within textualism about whether “flexible textualism”
or “formalistic textualism” is superior. See Grove, supra note 13, at 266–67. While it is not
entirely clear which one, if either, would treat empirical evidence about ordinary meaning
seriously, an ordinary meaning doctrine that emphasizes consideration of context and
nonliteral meanings would challenge both.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 277
A. Reframing Ordinary Meaning: The Meaning of Rules
First, our results suggest a reorientation of the ordinary meaning doc-
trine as one focused on the ordinary interpretation of rules, as opposed to
one focused on nonlegal language more generally. Courts have long
accepted that “ordinary meaning” stands for the proposition that legal
and nonlegal language coincides.
254
But some prominent critics have
argued that the doctrine is a pernicious fiction. These critics argue that
“ordinary meaning” is a misnomer and should be described as something
like the “ordinary legal meaning” concept.
255
Relatedly, critics such as Rich-
ard Fallon reject the “premise that statutes have linguistic meanings that
we can reliably ascertain in roughly the same way we determine the mean-
ing of utterances in ordinary conversation.”
256
Courts could solve the prob-
lem by not focusing on determining linguistic meaning,
257
or they could
seek to determine, in a very general sense, how ordinary people want stat-
utes to be interpreted.
258
The debate about the meaning of ordinary meaning has thus been
dichotomous: (1) legal and nonlegal language correspond versus (2) “or-
dinary meaning” is a fiction that needs correction. Critics are right that
nonlegal language is distinct in important ways from statutory texts. The
lexical and structural features that make statutory language dierent from
nonlegal language have been well documented.
259
The notion that statutes
254. See Brian G. Slocum, The Ordinary Meaning Doctrine and the Problem of Actual
Intentionalism, in Problems of Normativity, Rules and Rule-Following 295, 296 (Michaeł
Araszkiewicz, Paweł Banaś, Tomasz Gizbert-Studnicki & Krysztof Płeszka eds., 2015)
(“[A]bsent some reason for deviation, such as words with technical or special legal
meanings, the language used in legal texts should be viewed as corresponding with that used
in non-legal communications.” (citation omitted)).
255. See David A. Strauss, Why Plain Meaning?, 72 Notre Dame L. Rev. 1565, 1568
(1997) (“Terms like ‘witness,’ ‘zoning,’ and even ‘speed limit,’ when used in a legal context,
can mean something quite dierent from what they might mean when used in other
contexts.”); see also John O. McGinnis & Michael B. Rappaport, The Constitution and the
Language of the Law, 59 Wm. & Mary L. Rev. 1321, 1325 (2017) (arguing that the
Constitution is written in a distinctive legal language).
256. Richard H. Fallon, Jr., The Statutory Interpretation Muddle, 114 Nw. U. L. Rev.
269, 271 (2019) [hereinafter Fallon, Statutory Interpretation Muddle]; see also Paul E.
McGreal, Slighting Context: On the Illogic of Ordinary Speech in Statutory Interpretation,
52 U. Kan. L. Rev. 325, 327–28 (2004) (arguing that “ordinary conversation is a poor model
for understanding statutes”).
257. See Fallon, Statutory Interpretation Muddle, supra note 256, at 282 (“[J]udges’
guiding aspiration should be to resolve cases in the most morally and politically legitimate
way.”).
258. See William D. Popkin, Statutes in Court: The History and Theory of Statutory
Interpretation 181 (1999) (“The proper question to ask, if we are to insist on a link to
ordinary language usage, is not what do words ordinarily mean, but how would ordinary
people want language to be interpreted in specialized settings?”).
259. See, e.g., David Mellinko, The Language of the Law 11–17 (1963) (describing
how legal texts often use Latin words and phrases, terms of art, and Old French and Anglo-
278 COLUMBIA LAW REVIEW [Vol. 122:213
constitute an entirely sui generis form of communication, though, is mis-
taken. In fact, the interpretation of statutes may be similar in important
ways to the interpretation of rules generally. Our experiments suggest that,
at least with respect to the application of canons, ordinary people evaluate
legal rules and ordinary rules in strikingly similar ways, and that this may
dier from how ordinary people understand language in other nonrule
contexts. These findings suggest that the ordinary meaning doctrine
should not be construed as one concerned with “ordinary language” or
“legal language” generally; instead, the doctrine should focus on ordinary
understanding of the language of rules.
1. Empirical Research and the Significance of Rules. — Consider the ordi-
nary meaning issue within the context of empirical research. When we set
out to design this Essay’s experiments, we were immediately confronted
with a hard question. When studying “ordinary meaning,” should the
study’s participants be told to evaluate “a law,” or should they instead be
asked to interpret ordinary language, such as language about an ordinary
“rule”? We chose to do both. In our legal condition, participants were pre-
sented with language from “a law.”
260
Our ordinary condition took the
opposite approach, providing participants with a company’s rule.
261
The
position that legal language is sui generis would assume that there would
be little commonality between these modes of presentation. Legal lan-
guage certainly diers from ordinary language. Our experimental study,
however, suggests that this distinction may not always be so significant.
Although there were some minor dierences between the “legal” and
“ordinary” rule results, overall, they were extremely similar.
262
The empirical evidence suggests that some words are generalized
when they appear within rules.
263
Consider some of the canons that were
strongly supported across all three contexts (ordinary, legal, and null),
such as the nonbinary gender canon. Participants were inclined to judge
that “[w]hoever files his form” refers to “[a]ny person who files” in a rule.
But that canon may not reflect how “his” is generally understood. In
many—perhaps most—contexts, “his” is understood to refer to a man, not
a person of any gender:
A. Who is your father, and what is his birthday?
B. His singing wasn’t very good.
C. His car is over there.
This contrast between rules and nonrule contexts clarifies a deeper
implication about the gender canon and when it is triggered. The gender
Norman words); Tiersma, Myths, supra note 21, at 44–45 (describing the unique linguistic
features of legal language).
260. See supra Part II.
261. See supra Part II.
262. See supra Part II.
263. As the next section argues, the same canons also support nonliteral interpretations.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 279
canon applies to legal rules—and, as the experiment reveals, also to ordi-
nary rules. But it does not apply to “ordinary language” as a general mat-
ter.
264
The presence of the trigger (a term like “his”) does not imply that
there is a general gender-inclusive ordinary meaning.
265
In examples A, B,
and C above, ordinary people would not intuitively apply the canon. There
is something special about meaning within the context of rules.
One might think that this provides support for critics of ordinary
meaning. Perhaps the study shows that it is legal language, not ordinary
language, that is relevant in interpretation. But consider that the gender
canon does not apply to “legal language,” understood broadly. There are
many legal propositions that seemingly involve the trigger (e.g., “his”) but
do not reflect a gender-inclusive meaning. Imagine this statement from a
defense attorney to his client:
D. The prosecutor is tough; don’t be rattled by his hard ques-
tioning.
Or a witness on the stand:
E. I couldn’t see exactly who it was, but I did see his gun.
The canon would be triggered in most legal texts. But we propose that this
is because those texts contain rules, not because they contain legal lan-
guage. Suppose (E) was written as a response to an interrogatory. The gen-
der canon still does not apply, even if the writing is language that should
be understood as “legal.”
The same insight about the generalization of some terms in the con-
text of rules applies to other canons. For example, consider the num-
ber canon, which provides that the singular includes the plural (and vice
versa).
266
We found evidence that ordinary people intuitively apply that
canon within the context of legal rules.
267
But it is not obvious that the
singular includes the plural as a general matter, in either “ordinary lan-
guage” or “legal language.” When someone describes “a rocket” or “a
law,” the person most often would be understood as describing just one
rocket or law. Like the gender canon, the number canon operates within
the context of rules, but it may not be applicable in many nonrule con-
texts.
2. The Ordinary Meaning of Rules. — Our results thus suggest that some-
thing is missing from the modern debate about ordinary meaning. That
264. Consider rules arising in nonlegal contexts, such as interpretation of the Bible.
Perhaps here, too, most would understand rules nonliterally and gender-inclusively. For
example, prohibitions against desiring a “neighbor’s wife” or “his field” might be most
commonly understood as ones against desiring a neighbor’s partner and against desiring
his, her, or their field.
265. See Kevin Tobia, The Corpus and the Courts, U. Chi. L. Rev. Online *1, *15–16
(2021) [hereinafter Tobia, The Corpus and the Courts].
266. See Scalia & Garner, supra note 3, at 130.
267. See supra Part II.
280 COLUMBIA LAW REVIEW [Vol. 122:213
missing piece is a focus on rules. Within the context of rules, there may be
significant similarities between ordinary and legal language that are not
replicated in other contexts. So beyond debating whether legal texts con-
tain “ordinary” or “legal” language, progress might be made by contem-
plating the nature of language within rules. Interpreters invested in dis-
covering how ordinary people understand law should therefore con-
sider focusing on ordinary cognition of rules (legal or ordinary). Some
experimentalists have begun to take this approach, using empirical meth-
ods to study how ordinary people understand rules.
268
We hope that our
project helps initiate a larger new empirical research program in inter-
pretation, one that studies the nature of legal rules.
We do not here oer a full theory of the “ordinary meaning of rules.”
Nevertheless, a few aspects of such a focus are worth highlighting. First,
(some) legal language canons, such as the gender and number canons,
are triggered even in some nonlegal contexts. The possibility that interpre-
tive canons identified by courts to address legal interpretation might also
apply more generally is sometimes overlooked. Second, while some inter-
pretive principles may apply specially in the context of rules, many other
nonrule language conventions may still apply. We suspect the inter-
pretation of legal texts is not sui generis, and neither is the interpretation
of rules.
269
Third, and perhaps most importantly, some principles that ap-
ply within the context of the interpretation of rules may not apply gener-
ally. Our theory calls attention to the ordinary cognition of rules; perhaps
there are some interpretive practices that equally guide ordinary under-
standing of rules that courts have not yet recognized.
270
This third point may help scholars focus on what is or is not unique
about the interpretation of legal texts. For instance, some interpretive can-
ons when applied result in a narrowing of statutory meaning.
271
This nar-
rowing, but not broadening, of meaning based on interpretive con-
ventions and context is consistent with a general theory of how language
works. As the linguist Jason Stanley explains, “If context could aect the
interpretation of words in such a manner that” would render them incon-
sistent “with their context-independent meaning, that would threaten the
systematic nature of interpretation.”
272
Thus, “extra-linguistic context” is
“never called upon to expand” the meaning of a term.
273
Yet the inter-
pretation of rules may present a special kind of context. As we have seen
268. See Noel Struchiner, Ivar R. Hannikainen & Guilherme da F.C.F. de Almeida, An
Experimental Guide to Vehicles in the Park, 15 Judgment & Decision Making 312, 315–27
(2020); Tobia, Testing Ordinary Meaning, supra note 13, at app.
269. For an illustration of this point in the context of nonliteral interpretations, see
infra section IV.B.
270. See infra section IV.C.
271. See supra section I.C (describing Category Two canons).
272. Jason Stanley, Language in Context: Selected Essays 18 (2007).
273. Id.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 281
with the gender and number canons, the special context of rules may
cause ordinary people to broaden the meanings of some words.
A focus on the uniqueness of rules adds a critical new dimension to
the longstanding debate about the meaning of ordinary meaning and its
coherence as a doctrine of statutory interpretation. Critics claim that the
interpretation of statutes is distinct from interpretation in ordinary con-
versation, but whether that assertion is true should not determine the
validity of the ordinary meaning doctrine. Rather, the question should be
whether statutes contain rules that “we can reliably ascertain in roughly
the same way we determine the meanings” of rules in nonlegal situa-
tions.
274
If so, the linguistic principles and conventions relevant to how
ordinary people interpret nonlegal rules should be at least relevant to the
interpretation of statutes. In further work, we hope to identify the “rule-
specific” interpretive principles that ordinary readers deploy. Identifying
these interpretive principles may be essential to accurately assessing the
ordinary meanings of statutes.
B. The Interpretive Canons’ Anti-Literalism
Our second broader conclusion concerns the theory of interpretive
canons. The empirical results suggest that many canons represent an intu-
itive anti-literalism. Basic concepts of linguistics provide that the interpre-
tation of communications requires consideration of context, which often
supports nonliteral meanings.
275
The empirical results suggest the same is
true for statutory interpretation. Broadly speaking, an empirically
grounded ordinary meaning doctrine would dier in important respects
from a purely literal approach to interpretation. That is, ordinary meaning
sometimes mandates nonliteral statutory interpretations. This important
insight should influence how textualists develop their stated commitment
to nonliteralist interpretation. More broadly, we propose anti-literalism as
a new unifying theory of many of the canons and suggest that future
canons are likely to share this fundamental feature.
1. Current Debates About Literalism in Statutory Interpretation. — The lit-
eralism debate in statutory interpretation was sharpened by the Supreme
Court’s recent decision in Bostock v. Clayton County, where the Court held
that Title VII protects lesbians, gay men, transgender persons, and other
sex and gender minorities against workplace discrimination.
276
Apart from
the landmark civil rights achievement for LGBTQ persons, the decision
made waves within legal theory for its dueling textualist opinions that came
274. Fallon, Statutory Interpretation Muddle, supra note 256, at 278–79. Fallon’s
argument about ordinary meaning is an overstatement even without focusing on the inter-
pretation of rules rather than ordinary speech, but developing an eective rebuttal is
beyond the scope of this Essay.
275. See Récanati, supra note 86, at 5–10.
276. 140 S. Ct. 1731, 1737 (2020).
282 COLUMBIA LAW REVIEW [Vol. 122:213
to radically dierent conclusions about how Title VII should be inter-
preted.
277
The opinions were unified in their commitment to “ordinary”
meaning—and in their opposition to “literalism.”
As Justice Neil Gorsuch put it: “[W]e must be attuned to the possibi-
lity that a statutory phrase ordinarily bears a dierent meaning than the
terms do when viewed individually or literally.”
278
Justice Brett Kavanaugh
agreed: “[C]ourts must follow ordinary meaning, not literal meaning. And
courts must adhere to the ordinary meaning of phrases, not just the mean-
ing of the words in a phrase.”
279
Yet, the two (self-proclaimed) anti-literalist
Justices came to conflicting verdicts about what ordinary meaning and
nonliteralism entailed. Scholars have proposed thoughtful analyses of the
Bostock opinions but have not oered theories of what the decision means
for textualism as it relates to nonliteral interpretation.
280
Most textualists agree with Justice Kavanaugh’s basic claim: Textual-
ism is not literalism.
281
Yet, nonliteralism is undertheorized. This section
explores a new suggestion to resolve some of the dispute: Textualists
should embrace empirically grounded ordinary meaning canons, which
often support nonliteral interpretations. This should be seen as a friendly
suggestion to textualism. Many textualists articulate normative justifica-
tions for the ordinary meaning doctrine—such as fair notice, reliance, and
democratic values—that are tied to facts about how ordinary people
actually understand language.
282
Textualists have further suggested that a
commitment to ordinary people can extend to anti-literalism in
interpretation. Ordinary people do not understand legal texts in sim-
plistic, literal terms. As Justice Kavanaugh puts it:
A literalist approach to interpreting phrases disrespects ordinary
meaning and deprives the citizenry of fair notice of what the law
is . . . . For phrases as well as terms, the linchpin of statutory
interpretation is ordinary meaning, for that is going to be most
accessible to the citizenry desirous of following the law . . . . Bot-
tom line: Statutory Interpretation 101 instructs courts to follow
ordinary meaning, not literal meaning.
283
277. See Eskridge et al., The Meaning of Sex, supra note 5, at 1519–22.
278. Bostock, 140 S. Ct. at 1750.
279. Id. at 1825 (Kavanaugh, J., dissenting).
280. See, e.g., Anuj C. Desai, Text Is Not Enough, 93 U. Colo. L. Rev. (forthcoming
2021) (manuscript at 2–3) (arguing that Bostock had nothing to do with textualism); Grove,
supra note 13; Macleod, Finding Original Public Meaning, supra note 13; Tobia & Mikhail,
supra note 13, at 5–15.
281. See, e.g., Solum, Communicative Content, supra note 86, at 487.
282. See, e.g., Bostock, 140 S. Ct. at 1828 (Kavanaugh, J., dissenting).
283. Id. at 1828 (Kavanaugh, J., dissenting) (citing Eskridge, Interpreting Law, supra
note 3, at 81; Scalia & Garner, supra note 3, at 17).
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 283
A key question remains virtually unanswered: What makes interpreta-
tion problematically literalist?
284
In other words, if textualism seeks to
interpret texts in line with their actual ordinary meanings—closely con-
nected to facts about how ordinary people actually understand lan-
guage—how should such nonliteralist interpretation proceed? A starting
point, and one about which textualists agree, concerns the importance of
statutory context. As Justice Kavanaugh argued:
In the words of Learned Hand: ‘a sterile literalism . . . loses sight
of the forest for the trees.’ The full body of a text contains impli-
cations that can alter the literal meaning of individual words. . . .
Put another way, “the meaning of a sentence may be more than
that of the separate words, as a melody is more than the notes.”
285
The reference to the “full body of a text” reflects a key aspect of non-
literalism. In an important article, Fallon lists six dierent types of “legal
meaning,” including “semantic or literal meaning” and “contextual mean-
ing as framed by the shared presuppositions of speakers and listeners,
including shared presuppositions about application and nonappli-
cation.”
286
Call this latter option “contextual meaning” for shorthand. Our
empirical study can be seen as providing evidence about how the con-
textual meanings of (legal) rules diers from their literal meanings.
A full theory of nonliteral interpretation is beyond the scope of this
Essay, but we argue that any such theory should be based, at least in part,
on empirical realities and the interpretive canons that reflect those reali-
ties. Although (at least some) textualists purport to embrace non-
literalism, doing so may change current textualist interpretive practices.
While textualists now of course emphasize the importance of context,
287
284. Justice Kavanaugh’s dissent in Bostock emphasized several anti-literalist themes and
mentioned a few canons, including the rule against surplusage, see id. at 1830, and the
absurdity doctrine, see id. at 1827 n.4, but did not oer a theory of how canons often counsel
in favor of nonliteral interpretations. Furthermore, some of his themes were ill-conceived,
such as viewing the choice between ordinary meaning and scientific meaning as a question
of literalism. See id. at 1825 (discussing Nix v. Hedden, 149 U.S. 304 (1893)). In addition,
one of Justice Kavanaugh’s arguments, made using the meaning of “vehicle,” was that
dictionary definitions are often too broad to constitute ordinary meaning (which is true),
but he did not connect the observation to the debate between literal and ordinary meaning.
See id. at 1825. Justice Kavanaugh asserted that the meaning of “vehicle” “would literally
encompass a baby stroller” but the ordinary meaning of “vehicle” in the context of a no-
vehicles-in-the-park statute would not. See id. Justice Kavanaugh though did not explain
how he (or any other judge) knows either assertion to be true and did not point to any inter-
pretive canon that would support such an interpretation.
285. Id. (first quoting Scalia & Garner, supra note 33, at 356 (footnote omitted)
(internal quotation marks omitted); and then quoting Helvering v. Gregory, 69 F.2d 809,
810–11 (2d Cir. 1934) (Hand, J.)).
286. Richard H. Fallon Jr., The Meaning of Legal “Meaning” and Its Implications for
Theories of Legal Interpretation, 82 U. Chi. L. Rev. 1235, 1244–51 (2015).
287. See, e.g., John F. Manning, What Divides Textualists From Purposivists?, 106
Colum. L. Rev. 70, 79 (2006) [hereinafter Manning, What Divides Textualists From
284 COLUMBIA LAW REVIEW [Vol. 122:213
they also often emphasize the importance of the semantic meaning of stat-
utes.
288
Correlatively, the judicial use of dictionaries has increased dramat-
ically along with the ascendancy of textualism.
289
An exclusive reliance on literal meaning is in tension with empirical
findings about ordinary meaning. Recent empirical research has suggested
that ordinary people rely on both literal text and purpose in interpreting
laws.
290
For example, a 2020 empirical study examined ordinary people’s
understanding of the term “vehicle” by asking one group of people ques-
tions like “Is a bicycle a vehicle?”
291
Another group evaluated whether a
rule prohibiting “vehicles from the park” prohibited certain entities (like
bicycles).
292
Although most from the first group were inclined to catego-
rize bicycles as vehicles, most from the second group did not see bicycles
as “vehicles” prohibited by the rule.
293
What explains the divergence
between these two groups? One possibility is that people are generally
inclined to understand and construe language more narrowly when it is in
legal rules. Perhaps there is a sense in which a bicycle is not really a vehicle,
and people understand “vehicle” to take this more narrow sense in law.
Another possibility is that the apparent purpose of a law, suggested or
assumed from the legal rule’s language, informs ordinary understanding
of the rule’s meaning. A rule prohibiting “vehicles from the park” does
not prohibit literally all vehicles, and the presumed purpose of the rule
does not prohibit a bicycle (even though it may be a vehicle).
Purposivists?] (“Modern textualists . . . assert that language is intelligible only by virtue of a
community’s shared conventions for understanding words in context.”); Scalia & Garner,
supra note 3, at 33 (pointing out the importance of context—which includes textual
purpose, a word’s historical associations, and a word’s immediate syntactic setting—in the
ability to fairly read text). Textualists may emphasize the importance of context, but the
perception of textualism is of a methodology committed to literalist interpretation. See
William D. Popkin, A Dictionary of Statutory Interpretation 194 (2007) (“‘Literalism’ is
often used as a synonym for ‘textualism.’”).
288. See Grove, supra note 13, at 269 (“Formalistic textualism emphasizes semantic
context . . . .”); Jeremy K. Kessler & David E. Pozen, Working Themselves Impure: A Life
Cycle Theory of Legal Theories, 83 U. Chi. L. Rev. 1819, 1849 (2016) (arguing that
textualists “focus on the semantic structure of statutory texts rather than the policy debates
surrounding their passage”); Manning, What Divides Textualists From Purposivists?, supra
note 287, at 76 (arguing that “[t]extualists give precedence to semantic context”).
289. See, e.g., Brudney & Baum, supra note 19 (describing the Court’s increasing
reliance on dictionaries).
290. See Struchiner et al., supra note 268, at 315--27 (presenting evidence that text and
purpose aect ordinary interpretation); see also Tobia, Testing Ordinary Meaning, supra
note 13, at app. (presenting evidence consistent with purpose aecting ordinary interpre-
tation); Klapper et al., supra note 54, at 24--41 (presenting evidence that text and purpose
aect ordinary interpretation).
291. See Tobia, Testing Ordinary Meaning, supra note 13, 753–56.
292. Id. app. at 2–5.
293. Id. at 756–57; id. app. at 4.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 285
The 2020 study provides evidence more consistent with the impor-
tance of purpose to ordinary people. A third group of participants evalu-
ated a rule with an arbitrary purpose: All vehicles can display a blue sticker,
but everything that is not a vehicle cannot display a blue sticker.
294
Partici-
pants’ judgments about what counts as a vehicle were strikingly similar to
those of the first group—the group evaluating just the term “vehicle.”
295
In
other words, there is something about the addition of “from the park” in
the second group that seems especially important in explaining the diver-
gence between the first two groups. And a rule with an arbitrary purpose
(one unhelpful if purpose were relevant to ordinary interpretation) had
no eect.
296
Subsequent studies have provided more direct evidence,
directly manipulating the stated purpose of rules and finding that the ma-
nipulated purpose aects ordinary understanding of the language.
297
Our findings complement these recent results, indicating that ordi-
nary people sometimes reject the semantic (or dictionary) meanings of
words, often in favor of narrower meanings and sometimes in favor of
broader meanings. Our study highlights the important role of context in
determining ordinary meaning. Given the empirical findings about pur-
pose’s impact on ordinary meaning, it is likely that purpose plays an
important role in the ordinary application of contextual canons.
For example, consider two possible statutes:
(1) No cars, motorcycles, or other vehicles are permitted in the
park.
(2) No bicycles, scooters, or other vehicles are permitted in the
park.
Our results suggest that in (1) and (2), ordinary people would understand
“other vehicles” to refer to some subset of vehicles. Neither rule is under-
stood to mean that literally every vehicle is prohibited from the park. Per-
haps, for example, baby strollers are permitted under both rules.
Remember, however, that the triggering of a contextual restriction,
consistent with ejusdem generis, is only step one in an ordinary meaning
interpretation.
298
It is merely the threshold determination that the canon
applies. An interpreter committed to ordinary meaning must then deter-
mine how the canon is applied, in context. Based on the language of the
provisions, perhaps a skateboard is understood to be prohibited under rule
(2) but permitted under rule (1). Such a view could reflect ordinary peo-
ple’s “pure” comparison of the examples listed: A skateboard is similar to
294. See id. app. at 6–8.
295. See id. at 757; app. at 7.
296. See id. app. at 7.
297. See Struchiner et al., supra note 268, at 325 (arguing that text and purpose aect
ordinary interpretation); see also Klapper et al., supra note 54, at 49 (same).
298. See supra notes 68–72 and accompanying text (distinguishing the triggering of
ejusdem generis with its application).
286 COLUMBIA LAW REVIEW [Vol. 122:213
bicycles or scooters but not to cars and motorcycles. Yet, the perceived
purpose of the rule may also be influential. Often, that perceived purpose
reinforces an initial determination based only on language. Thus, perhaps
the (most) plausible purposes of a rule prohibiting cars and motorcycles
from the park does not extend to skateboards, but the (most) plausible
purposes of a rule prohibiting bicycles and scooters would. Alternatively,
some feature of the park or purpose of the prohibition might indicate that
skateboards should be prohibited under both rules.
299
Given extant empir-
ical evidence on the role of purpose in people’s judgments of meaning,
300
the possibility of perceived purpose influencing application of the canon
seems especially worthy of further exploration.
2. Interpretive Canons That Create Nonliteral Meanings. — Some existing
textual canons already reflect a nonliteralist approach to interpretation,
although scholars have not characterized them in such a manner. The
most obvious example is ejusdem generis.
301
The very function of the ejusdem
generis canon is to reject the literal meaning of the words in a catchall in
favor of some narrower meaning. Thus, when “other vehicles” follows a
list of specific examples, the phrase may include only some subset of the
things commonly included within the category “vehicle,” such as only
vehicles that have engines.
302
The noscitur a sociis canon often serves the
same function. The noscitur canon can be used to select between com-
peting definitions, as our “bank” question illustrates,
303
but, similar to the
ejusdem generis canon, it is also often used to select some subset of a term’s
literal meaning. Thus, in Yates v. United States, the Court considered the
noscitur canon to be relevant to selecting some subset of the literal mean-
ing of “tangible object.”
304
Even the rule against surplusage, which we did
not assess in our empirical study, often points to a nonliteral inter-
pretation.
305
Other canons expand literal meaning in more subtle ways. For
instance, as discussed above, one of the gender canons provides that male
299. Even then, such a determination would not necessarily mean that all vehicles are
prohibited under the two rules.
300. See supra notes 290–297 and accompanying text.
301. See supra notes 114–130 and accompanying text (describing the ejusdem generis
canon).
302. See supra notes 22–28 and accompanying text (describing the McBoyle case).
303. See supra section II.C.1 (describing the survey question involving the homonym
“bank”).
304. 574 U.S. 528, 543–44 (2015). The Court used noscitur and ejusdem generis to help
counter the literal interpretation advocated by Justice Kagan that “[a] ‘tangible object’ is an
object that’s tangible.” Id. at 553 (Kagan, J., dissenting); see also supra notes 126–133 and
accompanying text (discussing Yates).
305. See, e.g., Gustafson v. Alloyd Co., 513 U.S. 561, 574–75 (1995) (interpreting
“communication” to mean “documents of wide dissemination” in part based on the rule
against surplusage).
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 287
pronouns be interpreted broadly to include women and nonbinary per-
sons, which may not correspond with some dictionary definitions and
could thus be viewed as a nonliteral meaning.
306
Similarly, the singular-
includes-plural (and vice versa) canon may also deviate in some cases from
literal meaning.
307
People intuitively apply the canon to a prohibition on
firing “rockets,” concluding that the prohibition includes firing one
rocket (and thereby expanding the literal meaning of the prohibition).
308
3. Discovering New Canons That Create Nonliteral Meanings. — Scholars
have occasionally oered overarching theories of how interpretive canons
tend to operate. Famously, David Shapiro argued that interpretive canons
systematically favor “continuity over change” by “emphasiz[ing] the
importance of not changing existing understandings any more than is
needed to implement the statutory objective.”
309
Often, “continuity over
change” is promoted by applying canons that narrow possible meanings.
310
Our results suggest that the unifying theory of (many) canons might
have more to do with nonliteralism than narrowness. While “continuity
over change” may well represent an important theme of statutory inter-
pretation (reflecting the application of both textual and substantive can-
ons), we propose anti-literalism as an alternative unifying theory of many
of the canons. Furthermore, it is now possible to give this theme an empir-
ical and linguistic basis.
311
A commitment to the empirical realities of ordinary meaning as often
nonliteralist may change how courts, whether textualist or intentionalist,
approach statutory interpretation. We propose one such new nonliteralist
canon, the quantifier domain restriction canon.
312
Recognition of this canon
and others as both valid and nonliteralist may have the salutary eect of
306. See, e.g., His, Merriam-Webster, https://www.merriam-webster.com/dictionary/
his [https://perma.cc/6XMC-97WP] (last visited Sept. 1, 2021) (defining “his” as “of or
relating to him or himself especially as possessor, agent, or object of an action”). But see
He, Merriam-Webster, https://www.merriam-webster.com/dictionary/he [https://perma.
cc/Y6SB-MCMU] (last visited Sept. 1, 2021) (defining “he” with both gendered and generic
senses); see also supra section II.B.1.
307. See supra section II.B.2.
308. Even a rejection of the expressio unius canon, which ordinary people may not widely
apply, can be viewed as reflecting nonliteralism. After all, a rejection of expressio unius is an
indication that the interpreter contemplates the possibility of implied terms. See supra notes
153–156 and accompanying text (describing the expressio unius canon).
309. See David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U.
L. Rev. 921, 925 (1992).
310. See id. at 929 (noting that ejusdem generis is one example of a canon that “is
frequently invoked to suggest that a phrase which in isolation appears to have a broad scope
should be construed more narrowly when considered in its linguistic setting”).
311. See supra Parts I–II (describing how the possibility of empirical testing of
interpretive rules represents an important advancement in statutory interpretation theory).
312. See supra section II.C.4.
288 COLUMBIA LAW REVIEW [Vol. 122:213
decreasing judicial reliance on dictionary definitions and increasing judi-
cial sensitivity to context.
313
For instance, in Ali v. Federal Bureau of Prisons,
the Court (via Justice Clarence Thomas), in interpreting the statutory
phrase “any other law enforcement ocer,” began its analysis by empha-
sizing that “[r]ead naturally, the word ‘any’ has an expansive meaning”
and quoted a dictionary definition (via one of its previous decisions) that
defined “any” as “one or some indiscriminately of whatever kind.”
314
If the
quantifier domain restriction canon were judicially recognized, the Court
would not have been as adamant that the dictionary definition of “any”
was virtually dispositive. Furthermore, our empirical results supporting the
new quantifier canon suggest the possibility that other nonliteralist canons
are waiting to be discovered.
C. A New Law and Language Research Program
As we argue, our empirical results provide crucial evidence about
which canons actually reflect ordinary people’s understanding of legal and
ordinary rules. This is vital data for courts and interpreters concerned with
ordinary meaning. Our research challenges the dominant conception of
“ordinary meaning” as being focused on nonlegal language generally.
315
The research also challenges common textualist practices, such as empha-
sizing the literal meanings of statutes.
316
This section discusses several
remaining issues relating to our work, including the possibility of discov-
ering new canons, the possibility of multiple speech communities, the lim-
itations of our research, and, finally, how future research might proceed.
1. Discovering Hidden Canons: Are There More Canons? — Our study
assessed the triggering conditions of over a dozen interpretive principles,
and there are many others that have been traditionally recognized as can-
ons. But there may also be other ordinary meaning rules that have never
been recognized as even possible canons.
317
We have identified two new
candidates for canon status, but a broader implication of our study is the
existence of this possibility: With ordinary meaning as the justification,
many other new canons are waiting to be discovered. The importance of
possible new canons should not be underestimated. Textual canons, inclu-
ding the ones tested in this Essay, have mostly been legitimized by their
historical pedigrees, rather than by empirical testing. This has resulted in
313. See M.A.K. Halliday & Colin Yallop, Lexicology: A Short Introduction 25 (2007)
(“[T]he dictionary takes words away from their common use in their customary settings,”
which “can be highly misleading if used as a basis of theorizing about what words and their
meanings are.”).
314. 552 U.S. 214, 218–19 (2008) (quoting United States v. Gonzales, 520 U.S. 1, 5
(1997) (internal quotation marks omitted) (quoting Webster’s Third New International
Dictionary 97 (1976))).
315. See supra section IV.A.
316. See supra section IV.B.
317. See supra section III.C.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 289
a largely accepted assumption that the set of textual canons cannot
expand.
318
Prominent textualists like Justice Scalia and John Manning have
suggested that historical pedigree is the paramount criteria for canons,
and there is no need to seek out new canons.
319
A focus on empirical legit-
imization challenges the historical pedigree position and opens the door
to new possibilities. If ordinary meaning via ordinary people legiti-
mizes language canons, there are likely other hidden canons to discover.
320
The argument for additional interpretive canons is not new, but vir-
tually all such proposals involve substantive canons and thus have been ad-
vocated for on normative rather than linguistic grounds.
321
For example,
Cass Sunstein has proposed that judges “should interpret agency-adminis-
tered statutes in ways that counteract political and regulatory patholo-
gies.”
322
Other canons have been proposed, such as an “environmental
canon,”
323
a “dignity canon,”
324
a “CBO” canon providing that “ambiguous
statutes should be interpreted in accordance with the reading of the
statute adopted by the Congressional Budget Oce,”
325
and a canon
resolving constitutional ambiguity in favor of “the party that is less
likely . . . to be able to obtain a constitutional amendment to ‘correct’ the
Court’s interpretation.”
326
Our canons are dierent in type. If ordinary meaning is a possible
justification for a canon, such canons might be seen as “discovered” rather
than “created.” Of course, a researcher would not likely stumble across a
canon but rather would test possible canons based on knowledge of lin-
guistics, or some related field, or with some theme in mind. Consider two
318. There are of course some occasional exceptions. See supra note 136.
319. See Manning, The Absurdity Doctrine, supra note 65, at 2474 (“If textualists follow
their premises to a logical conclusion, then they must largely accept the world as they find
it, treating the existing set of background conventions as a closed set.”).
320. Cf. Bond v. United States, 572 U.S. 844, 861 (2014) (explaining that “[w]hen used
in the manner here, the chemicals in this case are not of the sort that an ordinary person
would associate with instruments of chemical warfare”).
321. See supra note 81 (distinguishing between substantive and textual canons).
322. Eben Moglen & Richard J. Pierce, Jr., Sunstein’s New Canons: Choosing the
Fictions of Statutory Interpretation, 57 U. Chi. L. Rev. 1203, 1204 (1990) (reviewing
Sunstein, supra note 216).
323. Nicholas S. Bryner, An Ecological Theory of Statutory Interpretation, 54 Idaho L.
Rev. 3, 6–7 (2018) (“[W]hen possible, statutes must be read in a manner that best promotes
ecological integrity and sustainability for present and future generations. Only a clear
statement in a statute may overcome this rule.”).
324. Noah B. Lindell, The Dignity Canon, 27 Cornell J.L. & Pub. Pol’y 415, 417 (2017)
(“The rule would require that a legislature speak clearly if it wishes to pass a provision that
would diminish individuals’ intrinsic worth as human beings.”).
325. Abbe R. Gluck, Congress, Statutory Interpretation, and the Failure of Formalism:
The CBO Canon and Other Ways That Courts Can Improve on What They Are Already
Trying to Do, 84 U. Chi. L. Rev. 177, 182 (2017).
326. See Lynn A. Baker, Constitutional Ambiguities and Originalism: Lessons From the
Spending Power, 103 Nw. U. L. Rev. 495, 496 (2009).
290 COLUMBIA LAW REVIEW [Vol. 122:213
possible themes. The first, inspired by our proposed “quantifier domain
restriction canon” and relating to nonliteral language conventions, has
already been discussed.
327
The second is based on the dynamic nature of language. Because lan-
guage is dynamic, words may mean today something quite dierent than
in some earlier period.
328
This dynamic feature of language sometimes fol-
lows changes in society.
329
Consider our nonbinary gender canon: In rules,
masculine and plural pronouns include nonbinary persons. Nonbinary
gender identities have only very recently gained widespread recognition in
American life and law.
330
It is not clear when the nonbinary gender canon
began to reflect ordinary people’s understanding of rules, but it is
conceivable that it was not always the case. At some point in the past,
ordinary Americans may not have understood rules referring to “he” or
“they” to include nonbinary persons.
331
It is likely that other changes in
society and language have created other new language conventions, some
of which aect the interpretation of rules. We expect social changes to
continue to do so.
By assessing the possibility of new canons, empirical methods help
maintain the accuracy and vitality of the ordinary meaning doctrine,
grounding the doctrine in ordinary meaning rather than mere tradition.
This also raises a challenge to textualist interpretation that vocalizes com-
mitment to ordinary meaning but relies only on traditional rules of inter-
pretation that may not fully capture the process of ordinary under-
standing. Theories, such as textualism, that are committed to ordinary
meaning as a normative basis of interpretation should accept the possi-
bility of new understandings of how ordinary people understand legal lan-
guage. Future research might propose and test other such canons, helping
ground legal interpretation concerned with “ordinary meaning” in ordi-
nary meaning.
2. Ordinary Meaning and Demographics. — Empirical evidence reveal-
ing demographic dierences in the interpretation of statutes might also
challenge current assumptions about ordinary meaning. Courts tend to
reference a generic ordinary person based on the assumption of ordinary
327. See supra section IV.B.
328. Geeraerts, supra note 46, at 230 (“[N]ew word senses emerge in the context of
actual language use.”); Peter Ludlow, Living Words: Meaning Underdetermination and the
Dynamic Lexicon 3 (2014) (rejecting the idea that “words are relatively stable things with
fixed meanings”).
329. See Aitchison, supra note 137, at 153–54 (explaining that “sociolinguistic causes of
language change” involve the altering of language as “the needs of its users alter”).
330. See Jessica A. Clarke, They, Them, and Theirs, 132 Harv. L. Rev. 894, 896–99
(2019).
331. Cf. Eskridge et al., The Meaning of Sex, supra note 5, 1561–64 (showing through
corpus linguistics research how references in popular culture to LGBTQ persons have
become more positive over the last several decades).
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 291
people representing a single speech community.
332
Scholars have recently
questioned this assumption.
333
Whether there are dramatic dierences in
how dierent people understand legal texts is an empirical question. This
was not the primary focus of our study, but our results provide some initial
insight into this issue.
There may well be ordinary meaning dierences based on gender.
We did not set out to study demographic dierences, and we only analyzed
responses by gender as applied to the gender canons. There we found
small dierences. Women were six to eight percent more likely to intui-
tively apply the gender canons (i.e., understand terms like “his” and
“their” inclusively).
334
Interpretive dierences may also be based on education, particularly
legal education. On the one hand, law students (who had not yet taken
legislation or administrative law) were slightly more inclined to apply many
of the canons, suggesting that there may be dierences among dierent
populations. For instance, greater education and being a law student
increased application of the gender canons.
335
It may be that law students,
even ones who are still in their first year, understand that laws are meant
to be generally applicable, even if they are not aware of the specific canon
at issue. Thus, more law students interpreted “her” inclusively, while lay-
people were very divided on that question.
336
On the other hand, these
dierences were small, and both the ordinary people and law student pop-
ulations tended to invoke the same canons.
These dierences could be magnified if interpretive canons that
require a more complex or involved analysis were considered. For
instance, the in pari materia canon creates a presumption of statutory
coherence, which includes consistency across related provisions regarding
word meanings.
337
Are these concerns relevant to language comprehen-
sion and thus to how ordinary people would interpret a provision? Apply-
ing the in pari materia canon often requires an in-depth knowledge of the
332. Consider, for instance, Judge Frank Easterbrook’s belief that the “significance of
an expression depends on how the interpretive community alive at the time of the text’s
adoption understood those words.” Scalia & Garner, supra note 3, at xxv.
333. See Krishnakumar, MetaRules, supra note 13, at 169–74; Louk, supra note 2, at
140–41; see also Nourse, Misreading Law, supra note 18, at 22 (positing that statutes are
directed to multiple audiences).
334. See infra Appendix.
335. See infra Appendix.
336. See infra Appendix.
337. See Jacob Scott, Codified Canons and the Common Law of Interpretation, 98 Geo.
L.J. 341, 376 (2010) (“The presumption of consistent usage and in pari materia, which both
accept an interpreter’s examination of the context of a particular term and what sort of
meaning that term has acquired in other statutes, are implicitly the same canon as the
presumption of consistency between statutes.”).
292 COLUMBIA LAW REVIEW [Vol. 122:213
legal system, which an ordinary member of the community would not pos-
sess.
338
Thus, there are likely fewer demographic dierences in situations
involving canons that can be tested using relatively decontextualized
language than in the much more challenging scenarios that may be
required by other canons.
There may also be dierent “types” of ordinary people interpreters
that are correlated with demographic attributes. Consider our findings in-
dicating positive correlations of invocation across many of the canons. Par-
ticipants who intuitively invoked the gender canon were more likely to also
apply other canons, like the singular-includes-plural canon and noscitur a
sociis. This might reflect (1) that some participants were atten-
ding more carefully to the survey, or (2) that there are dierent “types” of
lay participants—some who understand the meaning of rules more liter-
ally than others. Exploratory analyses support the first interpretation:
Canons’ invocation was predicted by duration of time spent on the survey
and by participants’ confidence ratings.
339
Those invoking the canons
spent more time on the survey and were more confident in their answers.
Nevertheless, future work could help explore these questions further.
While our empirical evidence supports the possibility of some demo-
graphic dierences, we are also struck by the remarkable degree of simi-
larity—across ordinary and legal rules, and across laypeople and law stu-
dents. The majority of participants interpreted both legal and nonlegal
rules consistently with most of the interpretive canons. Nevertheless, the
possibility that demographic and other dierences reflect dierent ordi-
nary meaning speech communities poses an intriguing question for future
research, and one that would oer a dicult challenge to textualist and
other theories that rely on ordinary meaning.
3. Current and Future Empirical Testing of Interpretive Canons. — We
have oered evidence of how ordinary people interpret rules and have
explored various implications from this empirical work, including how
ordinary meaning is oriented to the meaning of rules, is sometimes non-
literal, may depend on canons not yet identified, and may vary depending
on the characteristics of the group being studied.
However, we do not take the empirical evidence to support that we
should broadly “reject” all forms of any particular interpretive canon. For
example, recall the expressio unius est exclusio alterius canon.
340
The claim
338. For instance, in determining the meaning of the stipulated definition of “take” in
the Endangered Species Act of 1973, an ordinary person may not readily infer from a
separate provision providing for permits for takings that a broad meaning of “take” was
congressionally intended. See Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515
U.S. 687, 700–01 (1995) (making such an inference).
339. See infra Appendix.
340. See supra notes 153–156 and accompanying text (describing the expressio unius
canon).
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 293
we tested provides that when a statute expresses something explicitly (usu-
ally in a list), anything not expressed explicitly falls outside the statute.
341
Our study found that participants did not implicitly invoke that canon (in
fact, participants tended to reject it).
342
Our conclusion is not to broadly
reject expressio unius, but rather to suggest that its triggering condition(s)
should be reconsidered.
343
The current commonly stated triggering con-
dition is likely far too broad (when something is expressed explicitly, any-
thing not expressed explicitly falls outside of the provision). Nevertheless,
it may be that there is some element of truth to the principle of expressio
unius. That is, perhaps the expressio unius canon does not reflect ordinary
meaning whenever something is expressed explicitly, but only in some sub-
set of cases. As one hypothesis (for future research), perhaps expressio unius
is triggered when the categories expressed are clearly understood as ones
drawn from a finite (and/or small) set that is well-known to the speaker.
Thus, perhaps in the rule, “those violating section 2 or 5 of the Code are
subject to the following penalties,” the explicit mention of sections 2 and
5 is taken to exclude sections 1, 3, and 4.
We also do not take the empirical evidence to broadly “validate” any
particular interpretive canon. Recall the theory that Part I develops: A
canon has three elements: triggering, application, and cancellation.
344
We
have studied only the triggering conditions of the canons. Simply because
a canon is invoked by ordinary people does not, by itself, validate it as a
rule applicable to any legal interpretation.
As a simple example, consider cancellation of the singular-includes-
plural canon. We found that people generally understand a singular to
include a plural in a rule: “Rocket” also includes rockets. But suppose a
legal rule contains one section concerning the singular (e.g., prohibitions
and penalties for firing a rocket) and a second section addressing the plu-
ral (e.g., prohibitions and penalties for firing rockets). That would provide
strong evidence of cancellation.
The empirical evidence therefore does not demonstrate that judges
or interpreters should always apply any particular canon. Critically, it does
not establish exactly how any given canon applies in dierent contexts or
the circumstances in which it might be cancelled. Nor does the empirical
evidence resolve other interpretive issues, such as how canons should be
ordered in cases where two or more canons conflict or the persuasive value
341. See supra notes 153–156 and accompanying text.
342. See supra section II.C.3 (describing the survey results).
343. See supra notes 154–156 (suggesting that the current trigger for the expressio unius
canon is too broad).
344. See supra notes 63–72 and accompanying text (describing the three elements).
294 COLUMBIA LAW REVIEW [Vol. 122:213
a canon has in comparison to other sources of meaning like legislative his-
tory.
345
Furthermore, our data does not itself provide a normative justification
for judicial reliance on ordinary meaning. We have taken as our starting
point that ordinary meaning is at least relevant to the interpretation of
statutes.
346
But that is a normative premise that we have accepted rather
than asserted. Many scholars have advocated that statutory interpretation
can be improved through a more sophisticated understanding of the leg-
islative process.
347
Even so, it is implausible that ordinary meaning would
not play some role in the interpretation of statutes.
348
Language con-
ventions are critical to statutory interpretation, and it is unlikely that infor-
mation about the language production of Congress can oer a complete
theory of statutory interpretation. After all, the legislative drafters them-
selves must rely on language conventions and likely share many of the
same intuitions about the meanings of rules as do ordinary people.
349
Thus, we see this Essay as the start of a new approach to legal inter-
pretation rather than the culmination of one. It is the starting point of
what we hope will be a new research program at the intersection of empir-
ical studies and interpretation. If interpretive principles are to be based
on empirical realities rather than tradition, further foundational work is
needed. Consider just a few of the possibilities for further empirical
research:
1) whether other traditional interpretive canons (ones not tested in
this Essay) reflect how ordinary people interpret legal rules;
350
2) whether there are currently unrecognized canons that reflect how
ordinary people interpret legal rules;
351
345. See Eskridge, The New Textualism and Normative Canons, supra note 167, at 531
(describing how interpretive canons are often in conflict).
346. See supra notes 1–13 and accompanying text.
347. See, e.g., Abbe R. Gluck, Imperfect Statutes, Imperfect Courts: Understanding
Congress’s Plan in the Era of Unorthodox Lawmaking, 129 Harv. L. Rev. 62 (2015)
(analyzing statutory interpretation through the processes used by Congress in enacting
legislation).
348. See Eskridge, Interpreting Law, supra note 3, at 33–41 (describing the importance
of the ordinary meaning doctrine to statutory interpretation).
349. Gluck and Bressman’s surveys asked legislative drafters whether they were aware of
and used certain interpretive canons but did not test what canons the drafters actually
implicitly invoked when interpreting rules. See Bressman & Gluck, Statutory Interpretation
Part II, supra note 38, at 732–34; Gluck & Bressman, Statutory Interpretation Part I, supra
note 33, at 926–28.
350. See supra Part II (listing the interpretive canons that were tested).
351. See supra section IV.C.1 (discussing the possibility of empirically discovering
additional canons).
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 295
3) whether any of the currently unrecognized canons reflect the
theme of anti-literalism that is common to many of the canons;
352
4) once triggered, what facts are relevant to a canon’s application or
cancellation, and what should be viewed as a “consistent” application of
the canon;
353
5) the extent to which language conventions apply only in scenarios
involving the interpretation of rules; and
6) the extent to which demographic or other dierences impact any
of the above research issues.
As these questions make clear, our larger point is that empirical tools and
cognitive science oer new ways to make progress on traditional debates
in legal theory—particularly concerning “ordinary meaning.”
This Essay employs experimental methods, but other empirical meth-
ods might also contribute to this new mode of inquiry. For example, legal
corpus linguistics, which has received significant attention in recent years,
might also provide insight into interpretive canons.
354
Our work here also
carries recommendations for that approach. Recall that we propose that
there is something distinctive about the ordinary meaning of rules. The
modern legal corpus linguistics movement has thus far focused largely on
quantitative assessments of how terms are most commonly used, without
much consideration of whether that data reflects examples of usage occur-
ring in rules or similar authoritative pronouncements.
355
Many of those
examples come from usage in newspapers, online sources, or works of fic-
tion.
356
If statutory language is best understood as language within rules,
future work in legal corpus linguistics might be more helpful if it can de-
velop methods to isolate patterns of usage occurring within rules.
357
As empiricists, we take our results cautiously, as initial evidence that
certain canons are, in fact, accurate generalizations about how ordinary
people understand rules. Of course, future research might discover that
there are some exceptional cases, or maybe many exceptional cases, that
conflict with our findings. We are open to that possibility and invite exactly
that type of further empirical study. This is an enormous project, which
cannot be completed in a single essay. But we take this Essay to have made
significant progress on some of these questions and to have clarified im-
portant steps forward on others.
352. See supra section IV.B.
353. See Mendelson, supra note 31, at 131 (wondering whether consistent application
of canons outweighs “the prospect that individual cases might be wrongly or unjustly
decided”).
354. See, e.g., Lee & Mouritsen, supra note 13, at 832.
355. See id. at 795.
356. See id. at 828, 833–35.
357. Cf. Tobia, The Corpus and the Courts, supra note 265, at 35–36 (discussing
potential future directions of legal corpus linguistics).
296 COLUMBIA LAW REVIEW [Vol. 122:213
CONCLUSION
This Essay began by posing a simple but fundamental question: How
should judges decide which linguistic canons to apply in interpreting stat-
utes? One important answer addresses the question “from the inside,” and
seeks to provide an empirically grounded account of what rules legislative
drafters know and apply.
358
Another possibility, which we explored in this
Essay, is based on the “ordinary meaning” doctrine and its underlying
notions of fair notice and the rule of law. As such, it seeks to identify em-
pirically the rules that explain an ordinary person’s understanding of a
legal text. We do not seek to defend normatively this second approach.
But if a court or interpreter purports to rely on “ordinary meaning,” that
interpreter should do so with reference to empirical data, not merely by
tradition or intuition. Our project takes this approach seriously, con-
ducting the first empirical study of statutory interpretation “from the
outside.”
Considering the importance of ordinary meaning, it is particularly
concerning that courts frequently make claims about interpretation “from
the outside” that are based largely on tradition or normative commit-
ments. This Essay has taken a first step in collecting the kind of empirical
data that should be critical to statutory interpretation focused on ordinary
meaning. The findings provide support for some traditional canons, raise
questions about others, and identify two new canons (the “nonbinary gen-
der” and “quantifier domain restriction” canons).
As this Essay demonstrates, empirical study can also lead to important
new insights in interpretation theory. For instance, our results support a
theoretical reformation of the ordinary meaning doctrine, as one focused
on the language of rules rather than “legal language” or “ordinary lan-
guage.” Moreover, the results support a new theory of the function of legal
interpretive canons and clarify how ordinary meaning interpretation
should be “anti-literalist.”
Given the importance of ordinary meaning, these empirical and the-
oretical conclusions carry practical implications. Most obviously, they
could shape the behavior of courts. Courts are free to change the prin-
ciples of interpretation, and thus can adopt, drop, or modify interpretive
canons in light of empirical realities.
359
If “ordinary meaning” is meant to
reflect how ordinary people actually understand language, we see our
study as highly relevant evidence. Less obviously, and more controversially,
this kind of empirical work could even influence legislatures. Empirical
358. Bressman & Gluck, Statutory Interpretation Part II, supra note 38; Gluck &
Bressman, Statutory Interpretation Part I, supra note 33.
359. See Adrian Vermeule, The Cycles of Statutory Interpretation, 68 U. Chi. L. Rev.
149, 149 (2001) (“[T]he Court has changed its practice, and sometimes the formally stated
rules, with remarkable frequency.”).
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 297
work can help legislatures assess whether they should enact legislation dic-
tating interpretive rules, as well as the substance of those interpretive
rules.
360
This Essay contributes to a new research program in empirical legal
interpretation. We hope future work will continue to discover other new
canons, as well as test and refine the triggering, application, and cancel-
lation conditions of existing canons. We predict the continued application
of empirical methods to legal interpretive theory to have broad and wide-
ranging implications and oer this Essay as a first step in that new research
program.
360. See Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115
Harv. L. Rev. 2085, 2086 (2002) (contending that Congress should statutorily dictate a set
of rules for interpretation).
298 COLUMBIA LAW REVIEW [Vol. 122:213
APPENDIX
I.
LIST OF CANONS ........................................................................... 298
II.
SURVEY QUESTIONS AND ANSWER CHOICES .................................. 300
III.
STUDY 1 PARTICIPANT DEMOGRAPHICS ........................................ 315
IV.
DETAILS OF STATISTICAL ANALYSES .............................................. 319
A. Dierences From Chance .................................................... 319
B. Specific Comparisons ........................................................... 321
C. Ordinary Versus Legal Context ............................................ 324
V.
EXPLORATORY ANALYSES: DEMOGRAPHICS AND INDIVIDUAL
DIFFERENCES ................................................................................ 328
I.
LIST OF CANONS
1, 2. “And” vs. “Or”
(Conjunctive/Disjunctive Canon)
“And” joins a conjunctive list; “or” a
disjunctive list
3a, 3b, 3c, 4a, 4b. Gender and
Number Canons (including a
potential new nonbinary canon)
In the absence of a contrary
indication, the masculine includes
the feminine (and vice versa), and
the singular includes the plural (and
vice versa)
(potential canon: nonbinary canon)
In the absence of a contrary
indication, the masculine and
feminine include the nonbinary, and
plural pronouns (e.g.,
“they/them/theirs”) include the
masculine and feminine
5, 6. “May” vs. “Shall” Mandatory words, such as “shall,”
impose a duty while permissible
words, such as “may,” grant
discretion
7a, 7b. Oxford Comma A comma used after the penultimate
item in a list of three or more items,
the presence of which can create an
additional distinct item or category
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 299
8. Presumption of Nonexclusive
“Include”
The verb “to include” introduces
examples, not an exhaustive list
9a, 9b. Series-Qualifier Canon When there is a straightforward
parallel construction that involves all
nouns or verbs in a series, a
prepositive or postpositive modifier
normally applies to the entire series
10a, 10b. Rule of the Last
Antecedent
A pronoun, relative pronoun, or
demonstrative adjective generally
refers to the nearest reasonable
antecedent
When a modifier is set o from a
series of antecedents by a comma, the
modifier should be interpreted to
apply to all of the antecedents
11. Expressio unius est exclusio
alterius
When a statute expresses something
explicitly (usually in a list), anything
not expressed explicitly does not fall
within the statute
12. Quantifier Domain Restriction
(potential new canon)
The scope of a universal quantifier
(i.e., “all,” “any,” etc.) is typically
restricted in some way by context
13a, 13b, 13c. Noscitur a sociis The meaning of words that are placed
together in a statute should be
determined in light of the words with
which they are associated
14. Ejusdem generis When general words in a statute
precede or follow a list of specific
things, the general words should be
construed to include only objects
similar in nature to the specific
words
300 COLUMBIA LAW REVIEW [Vol. 122:213
II.
SURVEY QUESTIONS AND ANSWER CHOICES
1. Conjunctive Canon
A. [Legal]
Imagine that there is a law. Part of that law describes “property and
buildings.” Does this part of the law mean:
• Both property and buildings [endorsing]
• Either property or buildings, or both
• Either property or buildings, but not both
B. [Ordinary]
Imagine that a company has a rule for its employees. Part of that rule
describes “property and buildings.” Does this part of the rule mean:
• Both property and buildings [endorsing]
• Either property or buildings, or both
• Either property or buildings, but not both
C. [Null]
Imagine that there is a rule. Part of that rule describes “A and B.” Does
this part of the rule mean:
• Both A and B [endorsing]
• Either A or B, or both
• Either A or B, but not both
2. Disjunctive Canon
A. [Legal]
Imagine that there is a law. Part of that law describes “property or
buildings.” Does this part of the law mean:
• Both property and buildings
• Either property or buildings, or both [endorsing]
• Either property or buildings, but not both
B. [Ordinary]
Imagine that a company has a rule for its employees. Part of that rule
describes “property or buildings.” Does this part of the rule mean:
• Both property and buildings
• Either property or buildings, or both [endorsing]
• Either property or buildings, but not both
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 301
C. [Null]
Imagine that there is a rule. Part of that rule describes “C or D.” Does this
part of the rule mean:
• Both C and D
• Either C or D, or both [endorsing]
• Either C or D, but not both
3a. Gender Canon: His
A. [Legal]
Imagine that there is a law. Part of that law describes that certain benefits
will be given to “Whoever files his form before May 1.” Does this part of
the law mean:
• Any person (male, female, or non-binary) who files before May 1
[endorsing]
• Only any man who files before May 1
• Only any woman who files before May 1
B. [Ordinary]
Imagine that a company has a rule for its employees. Part of that rule
describes that certain benefits will be given to “Whoever submits his
monthly report before the first of the month.” Does this part of the rule
mean:
• Any person (male, female, or non-binary) who submits the
monthly report before the first of the month [endorsing]
• Only any man who submits the monthly report before the first of
the month
• Only any woman who submits the monthly report before the first
of the month
C. [Null]
Imagine that there is a rule. Part of that rule describes “Whoever Es his F.”
Does this part of the rule mean:
• Any person (male, female, or non-binary) who Es that person’s
F [endorsing]
• Only any man who Es that man’s F
• Only any woman who Es that woman’s F
302 COLUMBIA LAW REVIEW [Vol. 122:213
3b. Gender Canon: Her
A. [Legal]
Imagine that there is a law. Part of that law describes that certain benefits
will be given to “Whoever files her form before May 1.” Does this part of
the law mean:
• Any person (male, female, or non-binary) who files before May 1
[endorsing]
• Only any man who files before May 1
• Only any woman who files before May 1
B. [Ordinary]
Imagine that a company has a rule for its employees. Part of that rule
describes that certain benefits will be given to “Whoever submits her
monthly report before the first of the month.” Does this part of the rule
mean:
• Any person (male, female, or non-binary) who submits the
monthly report before the first of the month [endorsing]
• Only any man who submits the monthly report before the first of
the month
• Only any woman who submits the monthly report before the first
of the month
C. [Null]
Imagine that there is a rule. Part of that rule describes “Whoever Gs her
H.” Does this part of the rule mean:
• Any person (male, female, or non-binary) who Gs that person’s
H [endorsing]
• Only any man who Gs that man’s H
• Only any woman who Gs that woman’s H
3c. Gender Canon: Their
A. [Legal]
Imagine that there is a law. Part of that law describes that certain benefits
will be given to “Whoever files their form before May 1.” Does this part of
the law mean:
• Any person (male, female, or non-binary) who files before May 1
[endorsing]
• Only any man who files before May 1
• Only any woman who files before May 1
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 303
B. [Ordinary]
Imagine that a company has a rule for its employees. Part of that rule
describes that certain benefits will be given to “Whoever submits their
monthly report before the first of the month.” Does this part of the rule
mean:
• Any person (male, female, or non-binary) who submits the
monthly report before the first of the month [endorsing]
• Only any man who submits the monthly report before the first of
the month
• Only any woman who submits the monthly report before the first
of the month
C. [Null]
Imagine that there is a rule. Part of that rule describes “Whoever Is their
J.” Does this part of the rule mean:
• Any person (male, female, or non-binary) who Is that person’s J.
[endorsing]
• Only any man who Is that man’s J
• Only any woman who Is that woman’s J
4a. Number Canon: Singular
A. [Legal]
Imagine that there is a law. Part of that law states that “It is a misdemeanor
for any person to set o a rocket within the city limits.” Does this part of
the law mean:
• It is a misdemeanor for any person to set o one rocket within
the city limits.
• It is a misdemeanor for any person to set o one or more rockets
within the city limits. [endorsing]
B. [Ordinary]
Imagine that a company has a rule for its employees. Part of that rule states
that “It is prohibited for any person to set o a rocket on company
property.” Does this part of the rule mean:
• It is prohibited for any person to set o one rocket on company
property.
• It is prohibited for any person to set o one or more rockets on
company property. [endorsing]
304 COLUMBIA LAW REVIEW [Vol. 122:213
C. [Null]
Imagine that there is a rule. Part of that rule states that “It is prohibited
for any person to K a L.” Does this part of the rule mean:
• It is prohibited for any person to K one L.
• It is prohibited for any person to K one or more Ls. [endorsing]
4b. Number Canon: Plural
A. [Legal]
Imagine that there is a law. Part of that law states that “It is a misdemeanor
for any person to set o rockets within the city limits.” Does this part of
the law mean:
• It is a misdemeanor for any person to set o one or more rockets
within the city limits. [endorsing]
• It is a misdemeanor for any person to set o two or more rockets
within the city limits.
B. [Ordinary]
Imagine that a company has a rule for its employees. Part of that rule states
that “It is prohibited for any person to set o rockets on company
property.” Does this part of the rule mean:
• It is prohibited for any person to set o one or more rockets on
company property. [endorsing]
• It is prohibited for any person to set o two or more rockets on
company property.
C. [Null]
Imagine that there is a rule. Part of that rule states that “It is prohibited
for any person to M Ns.” Does this part of the rule mean:
• It is prohibited for any person to M one or more Ns. [endorsing]
• It is prohibited for any person to M two or more Ns.
5. May Canon
A. [Legal]
Imagine that there is a law. Part of that law states that “Employees may
provide written notice.” Does this part of the law mean:
• Employees are permitted, but not required, to provide written
notice. [endorsing]
• Employees are required to provide written notice.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 305
B. [Ordinary]
Imagine that a company has a rule for its employees. Part of that rule states
that “Employees may provide written notice.” Does this part of the rule
mean:
• Employees are permitted, but not required, to provide written
notice. [endorsing]
• Employees are required to provide written notice.
C. [Null]
Imagine that there is a rule. Part of that rule states that “Os may P.” Does
this part of the rule mean:
• Os are permitted, but not required, to P. [endorsing]
• Os are required to P.
6. Shall Canon
A. [Legal]
Imagine that there is a law. Part of that law states that “Employees shall
provide written notice.” Does this part of the law mean:
• Employees are permitted, but not required, to provide written
notice.
• Employees are required to provide written notice. [endorsing]
B. [Ordinary]
Imagine that a company has a rule for its employees. Part of that rule states
that “Employees shall provide written notice.” Does this part of the rule
mean:
• Employees are permitted, but not required, to provide written
notice.
• Employees are required to provide written notice. [endorsing]
C. [Null]
Imagine that there is a rule. Part of that rule states that “Qs shall R.” Does
this part of the rule mean:
• Qs are permitted, but not required, to R.
• Qs are required to R. [endorsing]
306 COLUMBIA LAW REVIEW [Vol. 122:213
7a. Oxford Comma: No Comma
A. [Legal]
Imagine that there is a law. Part of that law states that “Eligible work
includes: The canning, processing, preserving, storing, packing for
shipment or distribution of: (1) vegetables; (2) fruits; and (3) fish.” Does
this part of the law mean:
• Eligible work includes the canning, processing, preserving,
storing, packing for shipment, and packing for distribution of 1-
3. [endorsing]
• Eligible work includes the canning, processing, preserving,
storing, packing for shipment, and distribution of 1-3.
B. [Ordinary]
Imagine that a company has a rule for its employees. Part of that rule states
that “Eligible work includes: The canning, processing, preserving, storing,
packing for shipment or distribution of: (1) vegetables; (2) fruits; and (3)
fish.” Does this part of the rule mean:
• Eligible work includes the canning, processing, preserving,
storing, packing for shipment, and packing for distribution of 1-
3. [endorsing]
• Eligible work includes the canning, processing, preserving,
storing, packing for shipment, and distribution of 1-3.
C. [Null]
Imagine that there is a rule. Part of that rule states that “Eligible S
includes: The T, U, V, W, X for Y or Z of: (1) toops; (2) sindos; and (3)
parmaps.” Does this part of the rule mean:
• Eligible S includes the T, U, V, W, X for Y, and X for Z of 1-3.
[endorsing]
• Eligible S includes the T, U, V, W, X for Y, and Z of 1-3.
7b. Oxford Comma: Comma
A. [Legal]
Imagine that there is a law. Part of that law states that “Eligible work
includes: The canning, processing, preserving, storing, packing for
shipment, or distribution of: (1) vegetables; (2) fruits; and (3) fish.” Does
this part of the law mean:
• Eligible work includes the canning, processing, preserving,
storing, packing for shipment, and packing for distribution of 1-
3.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 307
• Eligible work includes the canning, processing, preserving,
storing, packing for shipment, and distribution of 1-3.
[endorsing]
B. [Ordinary]
Imagine that a company has a rule for its employees. Part of that rule states
that “Eligible work includes: The canning, processing, preserving, storing,
packing for shipment, or distribution of: (1) vegetables; (2) fruits; and (3)
fish.” Does this part of the rule mean:
• Eligible work includes the canning, processing, preserving,
storing, packing for shipment, and packing for distribution of 1-
3.
• Eligible work includes the canning, processing, preserving,
storing, packing for shipment, and distribution of 1-3.
[endorsing]
C. [Null]
Imagine that there is a rule. Part of that rule states that “Eligible A
includes: The B, C, D, E, F for G, or H of: 1; 2; and 3.” Does this part of the
rule mean:
• Eligible A includes the B, C, D, E, F for G, and F for H of 1-3.
• Eligible A includes the B, C, D, E, F for G, and H of 1-3.
[endorsing]
8. Presumption of Nonexclusive “Include”
A. [Legal]
Imagine that there is a law. Part of that law states that “The term ‘motor
vehicle’ shall include an automobile, automobile truck, automobile
wagon, or motor cycle.” Does this part of the law mean:
• The term ‘motor vehicle’ includes only automobiles, automobile
trucks, automobile wagons, and motor cycles.
• The term ‘motor vehicle’ includes automobiles, automobile
trucks, automobile wagons, motor cycles, and some other
entities. [endorsing]
B. [Ordinary]
Imagine that a company has a rule. Part of that rule states that “The term
‘motor vehicle’ shall include an automobile, automobile truck,
automobile wagon, or motor cycle.” Does this part of the rule mean:
• The term ‘motor vehicle’ includes only automobiles, automobile
trucks, automobile wagons, and motor cycles.
308 COLUMBIA LAW REVIEW [Vol. 122:213
• The term ‘motor vehicle’ includes automobiles, automobile
trucks, automobile wagons, motor cycles, and some other
entities. [endorsing]
C. [Null]
Imagine that there is a rule. Part of that rule states that “The term ‘AA’
shall include a BB, CC, DD, or EE.” Does this part of the rule mean:
• The term ‘AA’ includes only BBs, CCs, DDs, and EEs.
• The term ‘AA’ includes BBs, CCs, DDs, EEs, and some other
entities. [endorsing]
9a. Series Qualifier / Last Antecedent: Comma, Related
A. [Legal]
Imagine that there is a law. Part of that law states that “In parking area A,
people may park cars, mopeds, and trucks, on weekends.” Does this part
of the law mean:
• In parking area A, people may park cars on any day, mopeds on
any day, and trucks on only weekends.
• In parking area A, people may park cars on only weekends,
mopeds on only weekends, and trucks on only weekends.
[endorsing]
B. [Ordinary]
Imagine that a company has a rule. Part of that rule states that “In parking
area A, people may park cars, mopeds, and trucks, on weekends.” Does this
part of the rule mean:
• In parking area A, people may park cars on any day, mopeds on
any day, and trucks on only weekends.
• In parking area A, people may park cars on only weekends,
mopeds on only weekends, and trucks on only weekends.
[endorsing]
C. [Null]
Imagine that there is a rule. Part of that rule states that “People may FF
GGs, HHs, and IIs, on JJ. Does this part of the rule mean:
• People may FF GGs. People may FF HHs. People may FF IIs on
JJ.
• People may FF GGs on JJ. People may FF HHs on JJ. People may
FF IIs on JJ. [endorsing]
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 309
9b. Series Qualifier / Last Antecedent: Comma, Unrelated
A. [Legal]
Imagine that there is a law. Part of that law states that “In parking area A,
people may park cars, mopeds, and food trucks, on weekends.” Does this
part of the law mean:
• In parking area A, people may park cars on any day, mopeds on
any day, and food trucks on only weekends.
• In parking area A, people may park cars on only weekends,
mopeds on only weekends, and food trucks on only weekends.
[endorsing]
B. [Ordinary]
Imagine that a company has a rule. Part of that rule states that “In parking
area A, people may park cars, mopeds, and food trucks, on weekends.”
Does this part of the rule mean:
• In parking area A, people may park cars on any day, mopeds on
any day, and food trucks on only weekends.
• In parking area A, people may park cars on only weekends,
mopeds on only weekends, and food trucks on only weekends.
[endorsing]
10a. Series Qualifier / Last Antecedent: No Comma, Related
A. [Legal]
Imagine that there is a law. Part of that law states that “In parking area A,
people may park cars, mopeds, and trucks on weekends.” Does this part of
the law mean:
• In parking area A, people may park cars on any day, mopeds on
any day, and trucks on only weekends.
• In parking area A, people may park cars on only weekends,
mopeds on only weekends, and trucks on only weekends.
[endorsing]
B. [Ordinary]
Imagine that a company has a rule. Part of that rule states that “In parking
area A, people may park cars, mopeds, and trucks on weekends.” Does this
part of the rule mean:
• In parking area A, people may park cars on any day, mopeds on
any day, and trucks on only weekends.
• In parking area A, people may park cars on only weekends,
mopeds on only weekends, and trucks on only weekends.
[endorsing]
310 COLUMBIA LAW REVIEW [Vol. 122:213
C. [Null]
Imagine that there is a rule. Part of that rule states that “People may FF
GGs, HHs, and IIs on JJ. Does this part of the rule mean:
• People may FF GGs. People may FF HHs. People may FF IIs on
JJ.
• People may FF GGs on JJ. People may FF HHs on JJ. People may
FF IIs on JJ. [endorsing]
10b. Series Qualifier / Last Antecedent: No Comma, Unrelated
A. [Legal]
Imagine that there is a law. Part of that law states that “In parking area A,
people may park cars, mopeds, and food trucks on weekends.” Does this
part of the law mean:
• In parking area A, people may park cars on any day, mopeds on
any day, and food trucks on only weekends.
• In parking area A, people may park cars on only weekends,
mopeds on only weekends, and food trucks on only weekends.
[endorsing]
B. [Ordinary]
Imagine that a company has a rule. Part of that rule states that “In parking
area A, people may park cars, mopeds, and food trucks on weekends.”
Does this part of the rule mean:
• In parking area A, people may park cars on any day, mopeds on
any day, and food trucks on only weekends.
• In parking area A, people may park cars on only weekends,
mopeds on only weekends, and food trucks on only weekends.
[endorsing]
11. Expressio unius est exclusio alterius
A. [Legal]
Imagine that there is a law. Part of that law states that “No one may enter
restaurants with dogs or cats.” Jim enters a restaurant with a pet rabbit.
Does this part of the law mean:
• No one may enter restaurants with dogs, no one may enter
restaurants with cats, and no one may enter restaurants with
some other entities (such as a pet rabbit).
• No one may enter restaurants with dogs, no one may enter
restaurants with cats, and there is no other prohibition on
entering restaurants with anything. [endorsing]
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 311
B. [Ordinary]
Imagine that a restaurant chain has a rule. Part of that rule states that “No
one may enter our restaurants with dogs or cats.” Jim enters a restaurant
with a pet rabbit. Does this part of the rule mean:
• No one may enter the chain’s restaurants with dogs, no one may
enter the chain’s restaurants with cats, and no one may enter the
chain’s restaurants with some other entities (such as a pet
rabbit).
• No one may enter the chain’s restaurants with dogs, no one may
enter the chain’s restaurants with cats, and there is no other
prohibition on entering the chain’s restaurants with anything.
[endorsing]
C. [Null]
Imagine that there is a rule. Part of that rule states that “No one may KK
with LL or MM.” Jim KKs with a NN. Does this part of the rule mean:
• No one may KK with LL, no one may KK with MM, and no one
may KK with some other things (such as a NN).
• No one may KK with LL, no one may KK with MM, and there is
no other prohibition on KKing with anything. [endorsing]
12. Quantifier Domain Restriction
A. [Legal]
Imagine that there is a law. Part of that law describes “any law enforcement
ocer.” Does this part of the law mean:
• All law enforcement ocers, anywhere in the world
• Some law enforcement ocers, anywhere in the world
[endorsing]
• All law enforcement ocers, in the country in which the law was
passed [endorsing]
• Some law enforcement ocers, in the country in which the law
was passed [endorsing]
B. [Ordinary]
Imagine that a company has a rule. Part of that rule describes “any
administrative assistant.” Does this part of the rule mean:
• All administrative assistants, anywhere in the world
• Some administrative assistants, anywhere in the world
[endorsing]
• All administrative assistants, in the company [endorsing]
• Some administrative assistants, in the company [endorsing]
312 COLUMBIA LAW REVIEW [Vol. 122:213
C. [Null]
Imagine that there is a rule. Part of that rule describes “any OO.” Does this
part of the rule mean:
• All OOs, anywhere in the world
• Some OOs, anywhere in the world [endorsing]
• All OOs, within some region of the world (such as the country in
which the rule exists) [endorsing]
• Some OOs, within some region of the world (such as the country
in which the rule exists) [endorsing]
13a. Noscitur a sociis: Surrounding Words
A. [Legal]
Imagine that there is a law. Part of that law describes “records, documents,
or tangible objects.” Does this part of the law mean:
• Records, documents, and tangible objects that are similar to
records or documents [endorsing]
• Records, documents, and all tangible objects (including, for
example, a fish)
B. [Ordinary]
Imagine that there is a rule. Part of that rule describes “records,
documents, or tangible objects.” Does this part of the rule mean:
• Records, documents, and tangible objects that are similar to
records or documents [endorsing]
• Records, documents, and all tangible objects (including, for
example, a fish)
13b. Noscitur a sociis: Surrounding Context
A. [Legal]
Imagine that there is a law. Part of that law describes erasing writing from
“records, documents, or tangible objects.” Does this part of the law mean:
• Records, documents, and tangible objects that are similar to
records or documents [endorsing]
• Records, documents, and all tangible objects (including, for
example, a fish)
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 313
B. [Ordinary]
Imagine that there is a rule. Part of that rule describes erasing writing from
“records, documents, or tangible objects.” Does this part of the rule mean:
• Records, documents, and tangible objects that are similar to
records or documents [endorsing]
• Records, documents, and all tangible objects (including, for
example, a fish)
13c. Noscitur a sociis: Homonyms
A. [Legal]
Imagine that there is a law. Part of that law describes “a bank; a financial
institution; or a savings and loan association.” Does this part of the law
mean:
• Terrain alongside the bed of a river (commonly known as a
“bank”); a financial institution; or a savings and loan association
• An institution for receiving, lending, exchanging and safe-
guarding money (commonly known as a “bank”); a financial
institution; or a savings and loan association [endorsing]
• Terrain alongside the bed of a river (commonly known as a
“bank”); an institution for receiving, lending, exchanging and
safeguarding money (commonly known as a “bank”); a financial
institution; or a savings and loan association
B. [Ordinary]
Imagine that there is a rule. Part of that rule describes “a bank; a financial
institution; or a savings and loan association.” Does this part of the rule
mean:
• Terrain alongside the bed of a river (commonly known as a
“bank”); a financial institution; or a savings and loan association
• An institution for receiving, lending, exchanging and safe-
guarding money (commonly known as a “bank”); a financial
institution; or a savings and loan association [endorsing]
• Terrain alongside the bed of a river (commonly known as a
“bank”); an institution for receiving, lending, exchanging and
safeguarding money (commonly known as a “bank”); a financial
institution; or a savings and loan association
314 COLUMBIA LAW REVIEW [Vol. 122:213
14. Ejusdem generis
A. [Legal]
Imagine that there is a law. Part of that law refers to “gin, bourbon, vodka,
rum, and other beverages.” Does this part of the law mean:
• Gin, bourbon, vodka, rum, and other alcoholic beverages
[endorsing]
• Gin, bourbon, vodka, rum, and other alcoholic and non-
alcoholic beverages (including, for example, orange juice)
B. [Ordinary]
Imagine that a company has a rule. Part of that rule refers to “gin,
bourbon, vodka, rum, and other beverages.” Does this part of the rule
mean:
• Gin, bourbon, vodka, rum, and other alcoholic beverages
[endorsing]
• Gin, bourbon, vodka, rum, and other alcoholic and non-
alcoholic beverages (including, for example, orange juice)
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 315
III.
STUDY 1 PARTICIPANTS AND DEMOGRAPHICS
1
Passed Checks Recruited
(N = 4,430) (N = 4,500)
Gender
Male 2095 (47.5%) 2134 (47.7%)
Female 2251 (51.0%) 2272 (50.7%)
Transgender 13 (0.3%) 9 (0.2%)
Nonbinary 20 (0.5%) 23 (0.5%)
Not reported 1 3
Age M = 45.5,
SD = 16.9
M = 45.3,
SD = 16.9
Education
Some high school or less 110 (2.5%) 116 (2.6%)
High school graduate 1074 (24.2%) 1085 (24.1%)
Other post-high school
vocational training
111 (2.5%) 112 (2.5%)
Completed some college,
no degree
826 (18.6%) 837 (18.6%)
Associate’s degree 358 (8.1%) 363 (8.1%)
Bachelor’s degree 1257 (28.4%) 1266 (28.2%)
Master’s or professional degree 582 (13.1%) 601 (13.4%)
Doctorate degree 91 (2.1%) 94 (2.1%)
None of the above 20 (0.5%) 23 (0.5%)
Not reported 1 3
Law Degree
Yes 216 (4.9%) 244 (5.4%)
No 4167 (94.4%) 4202 (93.8%)
Other 30 (0.7%) 32 (0.7%)
Not reported 17 22
1. Participants were permitted to answer with more than one option for several of the
demographic questions: gender, ethnicity, and law experience. Percentages also may not
sum to 100% due to rounding. Percentage calculations exclude individuals who did not
answer the question (those listed in the “not reported” rows).
316 COLUMBIA LAW REVIEW [Vol. 122:213
Ethnicity
White (including Hispanic) 3198 (72.2%) 3239 (72.0%)
Black, or African American 519 (11.7%) 533 (11.9%)
Native American 65 (1.5%) 65 (1.5%)
Asian 262 (5.9%) 266 (5.9%)
Pacific Islander 17 (0.4%) 17 (0.4%)
Hispanic 492 (11.1%) 554 (12.3%)
Another race 293 (6.6%) 299 (6.6%)
Not reported 1 3
Country of Residence
United States 4387 (99.4%) 4446 (99.3%)
Other 26 (0.6%) 28 (0.6%)
Not reported 17 22
Region
Northeast 906 (20.5%) 920 (20.5%)
Midwest 850 (19.2%) 860 (19.1%)
South 1671 (37.7%) 1698 (37.8%)
West 1002 (22.6%) 1019 (22.7%)
Not reported 1 3
Sexual Orientation
Heterosexual or straight 3903 (88.4%) 3955 (88.3%)
Gay or lesbian 164 (3.7%) 165 (3.7%)
Bisexual 230 (5.2%) 234 (5.2%)
Another orientation 47 (1.1%) 50 (1.1%)
Prefer not to respond 69 (1.6%) 74 (1.7%)
Not reported 17 22
Disability
Yes 855 (19.4%) 880 (19.7%)
No 3468 (78.6%) 3503 (78.2%)
Prefer not to respond 90 (2.0%) 95 (2.1%)
Not reported 17 22
Native Language
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 317
English 4187 (94.9%) 4248 (94.9%)
English and Other 82 (1.9%) 84 (1.9%)
Only Other 144 (3.3%) 146 (3.3%)
Not reported 17 22
Law Experience
Past experience (e.g., plainti,
juror)
1095 (24.9%) 1130 (25.3%)
Sought legal advice 2035 (46.2%) 2068 (46.3%)
Work/worked for government 812 (18.5%) 841 (18.8%)
Not reported 27 33
Income
Less than $14,999 647 (14.6%) 661 (14.7%)
$15,000 to $19,999 215 (4.9%) 218 (4.8%)
$20,000 to $24,999 287 (6.5%) 288 (6.4%)
$25,000 to $29,999 269 (6.1%) 274 (6.1%)
$30,000 to $34,999 246 (5.6%) 249 (5.5%)
$35,000 to $39,999 205 (4.6%) 205 (4.6%)
$40,000 to $44,999 189 (4.3%) 194 (4.3%)
$45,000 to $49,999 203 (4.6%) 206 (4.6%)
$50,000 to $54,999 259 (5.8%) 264 (5.9%)
$55,000 to $59,999 115 (2.6%) 117 (2.6%)
$60,000 to $64,999 133 (3.0%) 138 (3.1%)
$65,000 to $69,999 128 (2.9%) 128 (2.8%)
$70,000 to $74,999 137 (3.1%) 139 (3.1%)
$75,000 to $79,999 155 (3.5%) 157 (3.5%)
$80,000 to $84,999 78 (1.8%) 81 (1.8%)
$85,000 to $89,999 65 (1.5%) 65 (1.4%)
$90,000 to $94,999 69 (1.6%) 70 (1.6%)
$95,000 to $99,999 125 (2.8%) 125 (2.8%)
$100,000 to $124,999 276 (6.2%) 278 (6.2%)
$125,000 to $149,999 185 (4.2%) 187 (4.2%)
$150,000 to $174,999 99 (2.2%) 103 (2.3%)
318 COLUMBIA LAW REVIEW [Vol. 122:213
$175,000 to $199,999 66 (1.5%) 67 (1.5%)
$200,000 to $249,999 65 (1.5%) 70 (1.6%)
$250,000 and above 69 (1.6%) 69 (1.5%)
Prefer not to answer 144 (3.3%) 144 (3.2%)
Not reported 1 3
Politics
Very liberal 410 (9.3%) 419 (9.4%)
Liberal 671 (15.2%) 687 (15.3%)
Somewhat liberal 412 (9.3%) 419 (9.4%)
Middle of the road 1489 (33.7%) 1508 (33.7%)
Somewhat conservative 492 (11.1%) 494 (11.0%)
Conservative 557 (12.6%) 564 (12.6%)
Very conservative 382 (8.7%) 387 (8.6%)
Not reported 17 22
Party
Strong Democrat 1205 (27.2%) 1230 (27.4%)
Not very strong Democrat 603 (13.6%) 609 (13.5%)
Independent Democrat 343 (7.7%) 346 (7.7%)
Independent – neither 517 (11.7%) 525 (11.7%)
Independent Republican 292 (6.6%) 294 (6.5%)
Other – leaning Democrat 28 (0.6%) 29 (0.6%)
Other – neither 178 (4.0%) 182 (4.0%)
Other – leaning Republican 37 (0.8%) 39 (0.9%)
Not very strong Republican 463 (10.5%) 465 (10.3%)
Strong Republican 763 (17.2%) 778 (17.3%)
Not reported 1 3
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 319
IV.
DETAILS OF STATISTICAL ANALYSES
A. Dierences From Chance
To evaluate whether the endorsement of each canon diered from
chance, we conducted chi square tests, taking only the first question answered
by each participant. In other words, we evaluated the data as a fully between-
subjects study: Condition (ordinary, legal, null) * Canon. There were 22
canons presented in each of the legal and ordinary contexts, and 16 in the
null context. To correct for the 60 multiple comparisons, we adopt
Bonferroni corrections (α = .00083).
There were significant dierences from chance for the conjunctive
canon, in the ordinary,
2
legal,
3
and null contexts
4
; and for the disjunctive
canon in the legal
5
and null
6
but not ordinary
7
contexts. The dierence in
the legal condition was not in the direction predicted by the canon’s
application.
There were significant dierences from chance for the gender: his
canon, in the ordinary,
8
legal,
9
and null contexts
10
; for the gender: hers
canon, in the ordinary,
11
legal,
12
and null contexts
13
; and for the gender:
their canon, in the ordinary,
14
legal,
15
and null contexts.
16
Across all three
contexts, the pattern of results in gender: hers was ambivalent with respect
to the canon’s predictions.
There were significant dierences from chance for the number
canon: singular, in the ordinary
17
and legal
18
but not null contexts
19
; and
2. X
2
= 45.9, p < .00001.
3. X
2
= 20.6, p < .00001.
4. X
2
= 78.5, p < .00001.
5. X
2
= 11.1, p = .0039.
6. X
2
= 33.1, p < .00001.
7. X
2
= 3.2, p = .2058.
8. X
2
= 76.2, p < .00001.
9. X
2
= 64.9, p < .00001.
10. X
2
= 93.8, p < .00001.
11. X
2
= 28.4, p < .00001.
12. X
2
= 34.4, p < .00001.
13. X
2
= 40.2, p < .00001.
14. X
2
= 126.8, p < .00001.
15. X
2
= 121.6, p < .00001.
16. X
2
= 139.9, p < .00001.
17. X
2
= 30.2, p < .00001.
18. X
2
= 8.4, p = .0038.
19. X
2
= .05, p = .8231.
320 COLUMBIA LAW REVIEW [Vol. 122:213
for the number canon: plural, in the ordinary,
20
legal,
21
and null
contexts.
22
There were significant dierences from chance for the may canon, in
the ordinary,
23
legal,
24
and null contexts
25
; and for the shall canon, in the
ordinary
26
and legal
27
but not null contexts.
28
There were significant dierences from chance for the Oxford “no
comma” question in the null condition,
29
but not ordinary
30
or legal con-
texts
31
; and for the Oxford comma canon, in the ordinary
32
and null
33
but
not legal contexts.
34
There was a significant dierence from chance for the nonexclusive
“include” question, in the legal,
35
but not ordinary
36
or null contexts.
37
The pattern of legal results was contrary to the canon’s application.
For the series qualifier and last antecedent questions, there were sig-
nificant dierences from chance in the ordinary context for all four
versions: comma, related;
38
comma, unrelated;
39
no comma, related;
40
and
no comma, unrelated
41
; and in the legal context for all four versions:
comma, related;
42
comma, unrelated;
43
no comma, related;
44
and no
20. X
2
= 34.7, p < .00001.
21. X
2
= 39.4, p < .00001.
22. X
2
= 51.0, p < .00001.
23. X
2
= 54.0, p < .00001.
24. X
2
= 20.6, p < .00001.
25. X
2
= 42.7, p < .00001.
26. X
2
= 36.5, p < .00001.
27. X
2
= 29.3, p < .00001.
28. X
2
= 3.1, p = .0772.
29. X
2
= 5.8, p = .0164.
30. X
2
= .143, p = .7055.
31. X
2
= .153, p = .6961.
32. X
2
= 4.1, p = .0431.
33. X
2
= 5.4, p = .01963.
34. X
2
= 2.7, p = .0990.
35. X
2
= 5.7, p = .0168.
36. X
2
= 1.1, p = .3017.
37. X
2
= .1, p = .7582.
38. X
2
= 19.6, p < .00001.
39. X
2
= 17.3, p < .00001.
40. X
2
= 13.8, p = .0002.
41. X
2
= 13.8, p = .0002.
42. X
2
= 15.5, p = .00008.
43. X
2
= 16.8, p = .00004.
44. X
2
= 38.3, p < .00001.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 321
comma, unrelated.
45
There were no significant dierences in the null
context versions, with
46
or without
47
the comma.
There were significant dierences from chance for expressio unius est
exclusio alterius, in the ordinary
48
and null,
49
but not legal contexts.
50
The
pattern of ordinary results was contrary to the canon’s recommended
application.
There were significant dierences from chance for the quantifier
domain restriction question, in the ordinary,
51
legal,
52
and null contexts.
53
The pattern of null results was contrary to the canon’s application.
There were significant dierences from chance for noscitur a sociis:
words, in the legal
54
but not ordinary
55
contexts. There were significant
dierences from chance for noscitur a sociis: context, in the ordinary
56
and
legal
57
contexts. There were significant dierences from chance for
noscitur a sociis: homonyms, in the ordinary
58
and legal
59
contexts. There
were no comparable questions in the null context.
There were significant dierences from chance for ejusdem generis, in
the legal
60
but not the ordinary
61
context. There was no comparable
question in the null context.
B. Specific Comparisons
We pre-registered several other specific comparisons. We wanted to
assess whether the presence of a comma aected interpretation in Oxford
comma scenarios.
45. X
2
= 15.5, p = .00008.
46. X
2
= 1.1, p = .2855.
47. X
2
= .04, p = .8366.
48. X
2
= 5.2 p = .0223.
49. X
2
= 4.6, p = .03254.
50. X
2
= .13, p = .7180.
51. X
2
= 91.5, p < .00001.
52. X
2
= 66.4, p < .00001.
53. X
2
= 61.3, p < .00001.
54. X
2
= 3.9, p = .0489.
55. X
2
= 3.8, p = .0510.
56. X
2
= 29.33, p < .00001.
57. X
2
= 22.0, p < .00001.
58. X
2
= 53.4, p < .00001.
59. X
2
= 85.5, p < .00001.
60. X
2
= 8.3, p = .00392.
61. X
2
= 3.57, p = .0588.
322 COLUMBIA LAW REVIEW [Vol. 122:213
S
TUDY QUESTION 7A. OXFORD COMMA (NO COMMA) (LEGAL VERSION)
STUDY QUESTION 7B. OXFORD COMMA (COMMA) (LEGAL VERSION)
For the lay sample, there was no significant dierence in the legal,
62
ordinary,
63
or null contexts.
64
The majority of participants chose the
second option, for both 7a and 7b. The law student results diered
dramatically. Most chose the first option for question 7a and most chose
the second option for question 7b.
65
We also pre-registered specific comparisons to assess the series
qualifier and rule of the last antecedent canons. In particular, we planned
to compare whether the addition of a comma aects judgments (9a v. 10a;
9b v. 10b), and whether the relatedness of the last and prior antecedents
aects judgments (9a v. 9b, 10a v. 10b). Comparing responses within each
of the ordinary and legal conditions, we found no significant dierences
62. X
2
= .68, p = .4096.
63. X
2
= 3.05, p = .0899.
64. X
2
= 0.00, p = .9860.
65. McNemar’s test, X
2
= 6.13, p = 0.01333.
Imagine that there is a law. Part of that law states that “Eligible work
includes: The canning, processing, preserving, storing, packing for
shipment, or distribution of: (1) vegetables; (2) fruits; and (3) fish.”
Does this part of the law mean:
• Eligible work includes the canning, processing, preserving,
storing, packing for shipment, and packing for distribution
of 1-3.
• Eligible work includes the canning, processing, preserving,
storing, packing for shipment, and distribution of 1-3.
[endorsing]
Imagine that there is a law. Part of that law states that “Eligible work
includes: The canning, processing, preserving, storing, packing for
shipment or distribution of: (1) vegetables; (2) fruits; and (3) fish.”
Does this part of the law mean:
• Eligible work includes the canning, processing, preserving,
storing, packing for shipment, and packing for distribution
of 1-3. [endorsing]
• Eligible work includes the canning, processing,
preserving, storing, packing for shipment, and
distribution of 1-3.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 323
(all ps > .2, except for the legal condition 9b vs. 10b, McNemar’s test, X
2
=
3.65, p = .05619). For the law student sample, there were no significant
dierences between the 9a–9b and 10a–10b comparisons, ps < .85.
However, there was a significant dierence between 9a–10a,
66
and a
nonsignificant dierence between 9b–10b, although one in the same
direction.
67
S
TUDY QUESTION 9A. SERIES QUALIFIER / LAST ANTECEDENT (COMMA,
RELATED) (LEGAL VERSION)
S
TUDY QUESTION 10A. SERIES QUALIFIER / LAST ANTECEDENT (NO COMMA,
RELATED) (LEGAL VERSION)
66. McNemar’s test, X
2
= 4.67, p = .0307.
67. McNemar’s test, X
2
= 3.76, p = .0526.
Imagine that there is a law. Part of that law states that “In parking
area A, people may park cars, mopeds, and trucks, on weekends.”
Does this part of the law mean:
• In parking area A, people may park cars on any day,
mopeds on any day, and trucks on only weekends.
• In parking area A, people may park cars on only weekends,
mopeds on only weekends, and trucks on only weekends.
[endorsing]
Imagine that there is a law. Part of that law states that “In parking
area A, people may park cars, mopeds, and trucks on weekends.”
Does this part of the law mean:
• In parking area A, people may park cars on any day,
mopeds on any day, and trucks on only weekends.
• In parking area A, people may park cars on only weekends,
mopeds on only weekends, and trucks on only weekends.
[endorsing]
324 COLUMBIA LAW REVIEW [Vol. 122:213
C. Ordinary Versus Legal Context
To assess dierences between the ordinary and legal contexts, we
conducted a generalized probit model. Below is the model table, following
best practice guidelines from Leotte Meteyard & Robert A.I. Davies, Best
Practices Guidance for Linear Mixed-Eects Models in Psychological
Science, 112 J. Memory & Language (2020). Notably, there was no
significant eect of ordinary versus legal context. There were only two sig-
nificant Context*Question interactions. Participants were more likely to
implicitly invoke expressio unius est exclusio alterius and noscitur a sociis
(homonyms example) in the legal, compared to the ordinary, condition.
Parameter Estimates
Est/Beta SE
95% CI
(lower)
(upper) z p
Intercept 0.5717 0.0264 0.52008 0.62379 21.6154 < .00001
Context 0.0713 0.0529 -0.03257 0.17485 1.348 0.17766
Question 2 -0.6961 0.1643 -1.01976 -0.37542 -4.2357 0.00002
Question 3a 0.5302 0.1752 0.18878 0.87592 3.0268 0.00247
Question 3b -0.4274 0.1591 -0.74031 -0.11646 -2.6865 0.00722
Question 3c 1.2556 0.22 0.84155 1.71211 5.7062 < .00001
Question 4a 0.3305 0.1703 -0.00215 0.66567 1.9411 0.05224
Question 4b 0.6528 0.1726 0.31661 0.99371 3.7824 0.00016
Question 5 0.5654 0.1805 0.21407 0.92231 3.1319 0.00174
Question 6 0.69 0.1851 0.33096 1.05718 3.7288 0.00019
Question 7a -0.4374 0.1624 -0.75669 -0.12005 -2.6939 0.00706
Question 7b -0.1087 0.1637 -0.42994 0.21201 -0.6639 0.50677
Question 8 -0.4947 0.1624 -0.81402 -0.17739 -3.0469 0.00231
Question 9a 0.3037 0.1677 -0.0243 0.63336 1.8112 0.07011
Question 9b 0.2344 0.1621 -0.08314 0.55271 1.4459 0.1482
Question 10a 0.3281 0.1586 0.0173 0.6394 2.068 0.03864
Question 10b 0.2052 0.1652 -0.11818 0.52963 1.2421 0.2142
Question 11 -0.609 0.1619 -0.92774 -0.29285 -3.7611 0.00017
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 325
Question 12 0.6386 0.1735 0.30126 0.98226 3.6802 0.00023
Question 13a -0.0929 0.1636 -0.41402 0.22762 -0.5677 0.57022
Question 13b 0.4599 0.1708 0.12653 0.79636 2.6929 0.00708
Question 13c 0.5296 0.1776 0.18398 0.88063 2.9827 0.00286
Question 14 0.0154 0.1688 -0.31532 0.34647 0.0911 0.9274
Question 2
* Context
-0.1323
0.3287
-0.77654
0.5122
-0.4024
0.68737
Question 3a
* Context
-0.2244
0.3503
-0.91098
0.46341
-0.6406
0.52177
Question 3b
* Context
-0.1771
0.3182
-0.80151
0.4462
-0.5564
0.57792
Question 3c
* Context
-0.8431
0.4401
-1.74867
-0.0044
-1.9157
0.0554
Question 4a
* Context
0.1098
0.3405
-0.55656
0.77911
0.3225
0.74711
Question 4b
* Context
-0.5008
0.3452
-1.17973
0.17458
-1.4507
0.14686
Question 5
* Context
-0.1797
0.3611
-0.88749
0.52917
-0.4977
0.61873
Question 6
* Context
-0.2209
0.3701
-0.94498
0.50778
-0.597
0.55051
Question 7a
* Context
-0.2706
0.3247
-0.90791
0.36539
-0.8333
0.40467
Question 7b
* Context
-0.2691
0.3274
-0.91137
0.37252
-0.8219
0.41111
Question 8
* Context
0.1412
0.3247
-0.49543
0.77787
0.4348
0.66371
Question 9a
* Context
-0.2958
0.3354
-0.95386
0.36148
-0.8819
0.37784
326 COLUMBIA LAW REVIEW [Vol. 122:213
Question 9b
* Context
-0.3039
0.3243
-0.93969
0.332
-0.9372
0.34866
Question 10a
* Context
-0.74
0.3173
-1.36377
-0.11958
-2.3324
0.01968
Question 10b
* Context
-0.595
0.3304
-1.24512
0.05047
-1.8009
0.07172
Question 11
* Context
-0.7106 0.3238 -1.34703 -0.07722 -2.1942 0.02822
Question 12
* Context
0.1648 0.347 -0.51154 0.85057 0.4748 0.63496
Question 13a
* Context
-0.4047
0.3273
-1.04715
0.23613
-1.2367
0.21621
Question 13b
* Context
-0.1689
0.3416
-0.83797
0.50176
-0.4946
0.62086
Question 13c
* Context
-0.8431
0.3551
-1.54408
-0.15074
-2.374
0.0176
Question 14
* Context
-0.6088
0.3375
-1.27235
0.0512
-1.8037
0.07128
Model fit
AIC 3312.9
R
2
.11
Key: Confidence Intervals have been calculated using the
Wald method.
Model equation: Judgment ~ 1 + Question + Context +
Question: Context
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 327
E
STIMATED PROBABILITIES OF IMPLICITLY INVOKING CANON
95% Confidence Interval
Question Prob. SE Lower Upper
1 0.654 0.0434 0.565 0.734
2 0.382 0.0437 0.300 0.470
3a 0.823 0.0337 0.749 0.881
3b 0.487 0.0427 0.405 0.571
3c 0.951 0.0190 0.901 0.978
4a 0.766 0.0377 0.686 0.833
4b 0.853 0.0291 0.788 0.902
5 0.832 0.0344 0.756 0.891
6 0.861 0.0316 0.790 0.914
7a 0.483 0.0446 0.397 0.570
7b 0.613 0.0436 0.525 0.695
8 0.461 0.0444 0.375 0.548
9a 0.758 0.0373 0.679 0.825
9b 0.736 0.0365 0.660 0.802
10a 0.765 0.0326 0.697 0.824
10b 0.726 0.0386 0.646 0.796
11 0.416 0.0434 0.333 0.502
12 0.849 0.0298 0.784 0.900
13a 0.619 0.0433 0.532 0.700
13b 0.804 0.0342 0.730 0.864
13c 0.823 0.0346 0.747 0.882
14 0.659 0.0443 0.569 0.742
328 COLUMBIA LAW REVIEW [Vol. 122:213
V.
EXPLORATORY ANALYSES: DEMOGRAPHICS AND
I
NDIVIDUAL DIFFERENCES
Finally, we conducted several exploratory analyses. These exploratory
analyses were not preregistered and we recommend taking them with
caution.
First, we examined whether there was a relationship between intui-
tively invoking the canon and duration of time spent on the survey. We
computed an overall canon invocation score for each participant, count-
ing each answer consistent with the canon application as “1” and each
answer inconsistent with the canon application as “0.” Minutes of survey
taking diered across contexts (ordinary M = 15.7; legal M = 15.7; null M
= 11.7). We conducted a generalized linear model, controlling for context,
to estimate the eect of survey-taking duration on canon invocation, with
the invocation score as the dependent variable. Duration was a small but
significant predictor of invocation score; spending more time on the
survey was positively related to answering more questions consistently with
the recommendation of the canons.
68
Second, we examined whether there was a relationship between
participants’ self-reported confidence ratings and invocation of answers
recommended by the canons. The confidence ratings were computed
using the sixteen confidence questions corresponding to the sixteen ques-
tions shared among the three contexts. Mean confidence scores diered
across contexts (ordinary M = 8.6; legal M = 8.3; null M = 7.0). A
generalized linear model, controlling for context, estimated the eect of
self-reported confidence on canon application, with the invocation score
as the dependent variable. Self-reported confidence was positively related
to answering more questions consistently with the canons’ recommen-
dation.
69
We also considered whether demographic factors aected application
of the gender: his and gender: their canons. Women were about 8% more
likely than men to interpret “his” as inclusive of men, women, and
nonbinary persons,
70
and about 6% more likely to interpret “their”
68. A generalized linear model controlling for context found a significant effect of
duration, OR = 1.004 (95% CI: 1.001, 1.006), p < .004.
69. A generalized linear model controlling for context found a significant effect of
confidence, OR = 1.24 (95% CI: 1.20, 1.28), p < .001.
70. Men: 67.6% [95% CI: 65.6, 69.6] vs. Women: 75.6% [95% CI: 73.9, 77.4]. A
generalized probit model controlling for context found a significant effect of gender, OR =
1.27 [95% CI: 1.18, 1.38], p < .001.
2022] STATUTORY INTERPRETATION FROM THE OUTSIDE 329
broadly.
71
Greater education level also predicted invocation of the gender:
his
72
and gender: their canons.
73
71. Men: 83.8% [95% CI: 82.2, 85.3] vs. Women: 89.4% [95% CI: 88.0, 90]. A generalized
probit model controlling for context found a significant effect of gender, OR = 1.30 (95% CI:
1.18, 1.42), p < .001.
72. A generalized probit model controlling for context found a significant effect of
education, p = .00013. For gender: his, the probability of judging consistently with the canon
was:
high school or less: 57.2% [95% CI: 47.8, 66.2];
high school graduate: 67.5% [95% CI: 64.7, 70.3];
other vocational training: 74.6% [95% CI: 65.7, 82.1];
some college: 71.2% [95% CI: 68.0, 74.2];
associate’s degree: 73.% [95% CI: 68.3, 77.5];
bachelor’s degree: 74.8% [95% CI: 72.3, 77.1];
master’s degree: 74.4% [95% CI: 70.7, 77.8];
doctoral degree: 75.7% [95% CI: 66.0, 83.6].
73. A generalized probit model controlling for context found a significant effect of
education, p < .00001. For gender: their, the probability of judging consistently with the
canon was:
high school or less: 79.4% [95% CI: 80.9, 86.1];
high school graduate: 82.0% [95% CI: 79.6, 84.2];
other vocational training: 92.2% [95% CI: 85.1, 96.3];
some college: 89.6% [95% CI: 87.4, 91.6];
associate’s degree: 87.7% [95% CI: 83.8, 90.9];
bachelor’s degree: 89.7% [95% CI: 87.9, 91.3];
master’s degree: 84.8% [95% CI: 81.2, 94.2];
doctoral degree: 89.0% [95% CI: 81.2, 94.2].
330 COLUMBIA LAW REVIEW [Vol. 122:213