Victoria Nourse: Two Kinds of Plain Meaning
Victoria F. Nourse (Georgetown Law Center) has posted Two Kinds of Plain Meaning (Brooklyn Law Review, vol. 76, 2011) on SSRN. Here is the abstract:
Is plain meaning so plain? This is not meant to be a philosophical question, but one deserving serious legal analysis. The plain-meaning rule claims to provide certainty and narrow statutes' domains. The author agrees with, as a relative claim, comparing plain meaning with purposivism. She does not agree that plain-meaning analysis is as easy as its proponents suggest. In this piece, the author teases out two very different ideas of plain meaning -- ordinary/popular meaning and expansive/legalist meaning -- suggesting that doctrinal analysis requires more than plain-meaning simpliciter. Perhaps more importantly, she argues that plain meaning, as legalist meaning, can quite easily expand a statute's scope, relative to a baseline of ordinary meaning or the status quo ex ante.
And from the conclusion:
Here lies an important question for textualist theory. New textualism remains unclear about precisely what type of meanings it will apply. While some textualists tend to emphasize expert meaning and semantic content, others emphasize ordinary meaning. Indeed, some textualists are quick, even within a single article, to refer to ordinary meaning and specialized meaning as if there were no difference between the two. Perhaps textualists are assuming that the average citizen is a lawyer-something I am quite sure the voting public would find odd, if not offensive. The very existence of two kinds of plain meaning calls for a theory concerning when a court should apply expert meaning and when it should apply public, or prototypical, meaning.
Via Larry Solum at Legal Theory Blog, who says "Very interesting and highly recommended." Also, focused on Justice Scalia's appeals to textualism. And short.