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Kevin Tobia et al.: Ordinary Meaning and Ordinary People
Michael Ramsey

Kevin Tobia (Georgetown University Law Center; Georgetown University - Department of Philosophy), Brian G. Slocum (University of the Pacific - McGeorge School of Law) & Victoria Nourse (Georgetown University Law Center) have posted Ordinary Meaning and Ordinary People (114 pages) on SSRN.  Here is the abstract:

Perhaps the most fundamental principle of legal interpretation is the presumption that terms should be given their “ordinary” (i.e., general, non-technical) meanings. This principle is a central tenet of modern textualism. Textualists believe a universal presumption of ordinary meaning follows from their theory’s core commitment: A law should be interpreted consistently with what its text communicates to the ordinary public. This Article begins from this textualist premise, empirically examining what legal texts communicate to the public. Five original empirical studies (N = 4,365) reveal a surprising finding: Ordinary people consider genre carefully and regularly take terms in law to communicate technical legal meanings, not ordinary ones.

This discovery carries implications for legal interpretation’s theory and practice. Modern textualists—especially at the Supreme Court—justify their theory through “democratic,” fair notice, and rule-of-law appeals to ordinary people. But the empirical studies reveal that fidelity to ordinary people does not imply an unwavering commitment to ordinary meaning. Instead, it requires interpreters to also look to technical meanings. On a practical level, the results support a new presumption of legal meaning and ground a new challenge to textualism’s claim to promote fair notice. As a case study, we consider Bostock v. Clayton County, Georgia, which held that both sexual orientation and gender identity discrimination are prohibited forms of sex discrimination. The Article’s empirics and theory offer a new justification of the Court’s landmark decision.

I don't agree that "the most fundamental principle of legal interpretation" is that terms should generally be given "general, non-technical" meanings, and I don't think that is the position of most textualists either.  Rather, textualists recognize that (a) legal terms often are used to impart technical legal meaning (that's why we need lawyers!), and (b) ordinary people commonly understand that.  (For example, this paper by John McGinnis and Michael Rappaport: The Constitution and the Language of the Law).  So I think the conclusion is correct but not as surprising as the paper makes it sound.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.")