However, if Congress or the Court were to establish a meta-rule requiring that Title VII (or civil liberties or anti-discrimination laws in general) be interpreted in light of its legalistic (or prototypical) meaning, then all the language in the workplace discrimination provision of Title VII should be interpreted with the same ordinary meaning. that is, prototypical or legalistic. We don`t have to look far to see the practical implications of this kind of metarule: a way to understand the opposing views of Justices Gorsuch and Kavanaugh in Bostock v. Clayton County.54×54 140 pp. C. 1731 (2020). The case deals precisely with this type of legalistic analysis in relation to the prototypical analysis of the meaning of the legal formulation “on account of sex”. In this case, Gorsuch J. (and a majority of the Court) concluded that the term must be given a broad or legalistic meaning to include discrimination on the basis of sexual orientation or gender identity; while Kavanaugh J.
(and two other dissenters) concluded that the sentence should be limited to its prototypical sense, which would not include such discrimination.55×55. Compare id. in 1739, 1741-42, with id. in 1755, 1767, 1769 (Alito, J., different) and id. in 1824-28 (Kavanaugh, J., different). Alito J.A.`s dissent was supported by Thomas J. Id. about 1754 (Alito, J., different). Remarkably, Justice Gorsuch`s opinion was framed as an interpretation of “gender” in light of dictionary definitions that equate “gender” with biological distinctions – arguing that distinctions based on sexual orientation or gender identity cannot be made without considering biological differences at some level. Id. c. 1739, 1741–42.
Judge Kavanaugh`s dissenting opinion countered that this was true only in a very literal (or legalistic) sense, pointing out that no one in the general conversation would say that a homosexual person was fired because of their “gender.” See id., p. 1828 (Kavanaugh, J., different). Justice Gorsuch`s majority opinion is in many ways a classic legalistic view, with his insistence that “conversational conventions do not control the legal analysis of Title VII” and that such an analysis depends on whether “sex” was a cause of discrimination against the employer. Id., p. 1745 (majority opinion). Conversely, Justice Kavanaugh`s dissenting opinion is essentially an argument that the prototypical meaning of “sex-based” discrimination does not include discrimination based on sexual orientation or gender identity. In fact, the “literal” meaning criticized by Justice Kavanaugh is essentially the broad or legalistic meaning of a term; while “common usage”, id. to 1828 (Kavanaugh, J., different), meaning is another way of reaching the central or prototypical (most common) meaning of the term. “Metalaw.” Merriam-Webster.com Dictionary, Merriam-Webster, www.merriam-webster.com/dictionary/metalaw. Retrieved 9 November 2022.
As mentioned above, I`m not surprised by these findings, partly because my own empirical research agrees with them. In a recent study on the extent of judicial duels over interpretive resources in the United States, for example, the Supreme Court measured the frequency with which majority and dissenting opinions used the same interpretive tool in the same case to obtain conflicting results.38×38 See Anita S. Krishnakumar, Dueling Canons, 65 Duke L.J. 909, 912 (2016). For the simple or ordinary meaning analysis, I found a rate of 42.7% of judicial duels – meaning that in more than 40% of cases with split court votes, where at least one opinion held that the law had an ordinary or simple meaning, an opposing opinion replied that the law had a different ordinary meaning.39×39. See id. at 929–30 and tbl.1. Perhaps even more interesting is that in 41.2% of cases where the majority and dissenting opinions disagreed on the clear meaning of a statute, one opinion advocated adopting the “essential” or “prototypical” meaning of the word in question, while the other focused on the broad or legalistic meaning of the word.40×40 See id., pp. 962–63, 962 nn.146–47.
I agree with many of the conclusions Tobias drew in his thoughtful article. This response will focus on a few areas of disagreement, as well as some methodological lessons that could be drawn from its findings. First, I address an important issue that Tobias` study ignores – the question of who is the appropriate audience (or “normal reader”) for a particular statute.10×10 Tobias` article focuses on the interpretation of treaties and laws, Tobia, op. cit. Cit. note 4, p. 728, but the examples and experimental terms he uses – particularly “vehicles” from the classic interpretation of the hypothetically “vehicles in the park” and “carrying a firearm” law of Muscarello v. United States, 524 U.S. 125 (1998) – tend to flow from the context of legal interpretation. as well as the discussion of textualism in the article. See Tobia, note 4 above, pp.
730-31, 739. Overall, I read the article in such a way that it focuses more on using dictionary definitions and corpus linguistics as a guide to ordinary meaning in legal rather than contractual interpretation. As I am much more familiar with the law and theory of legal interpretation, as well as the use of dictionary definitions and corpus linguistics in the legal rather than contractual context, I will focus in this answer on the impact of Tobias` findings on legal interpretation. — and I maintain that Tobias` data do not support the strong version of his claim that different audiences have a similar view of legal significance. Second, I examine the methodological implications of Tobias` conclusions that ordinary meaning is often unclear and that dictionary definitions, corpus linguistics, and collective intuition often diverge between ordinary meanings, for a Supreme Court and a judiciary, which have increasingly evolved into a textualist approach to legal interpretation.11×11. See, for example, Harvard Law School, The 2015 Scalia Lecture | Dialogue with Justice Elena Kagan on reading laws at 8:28, YouTube (November 25, 2015), youtu.be/dpEtszFT0Tg [perma.cc/KG5P-9PWX] (“I think we`re all textualists now.”); Jonathan R. Siegel, The Legacy of Justice Scalia and His Textualist Ideal, 85 Geo. Wash. L. Rev. 857, 858 (2017) (states that because of Justice Scalia`s “enormous influence,” “federal courts today generally recognize the importance of careful scrutiny of legislation”); Thomas W.
Merrill, Essay, Textualism and the Future of the Chevron Doctrine, 72 Wash. U. L.Q. 351, 355 (1994) (describes the rise of textualism on the U.S. Supreme Court). In particular, I propose two meta-rules that courts could adopt to limit judicial discretion and uncertainty as to ordinary meaning: (1) a rule that certain categories of statutes must be interpreted in light of their prototypical (or, conversely, legalistic) meaning; and (2) a rule requiring that differences in ordinary meaning identified by dictionaries, corpus linguistics, various judges, and/or surveys of laymen be considered prima facie evidence that a law is ambiguous and has no “simple” meaning. Courts already recognize a set of rules of interpretation, often referred to as “canons of interpretation,” that essentially tell interpreters to read legal terms broadly or narrowly. One example is the canon, which advocates a narrow interpretation of federal tax exemptions.46×46 See United States v. Burke, 504 USA 229, 244 (1992) (Scalia, J., pursuant to judgment); id., p. 248 (Souter, J., in accordance with judgment); United States v. Wells Fargo Bank, 485 U.S.
351, 357 (1988). The canon that commands that statutes for veterans` achievements be interpreted generously,47×47. See King v. St. Vincent`s Hosp., 502 U.S. 215, 220 n.9 (1991). And the whole directive stipulates that reservations (legal provisions creating exceptions) must be interpreted restrictively to cover only those points that are clearly covered by the exception.48×48.