The Volokh Conspiracy
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Ordinary Meaning as Last Resort
I appreciate this opportunity to guest blog on the Volokh Conspiracy about my latest article, posted on SSRN a few weeks ago, entitled Ordinary Meaning as Last Resort: The Meaning of "Undue Hardship" in Title VII. This is the first of two posts and will focus on the first half of the article, where I clarify textualist doctrine and refine textualist methodology. Tomorrow's post will focus on applying this clarification and refinement to a pending U.S. Supreme Court case—Groff v. DeJoy—to show that most everyone has missed the meaning of "undue hardship" in Title VII of the 1964 Civil Rights Act.
The Problem with Ordinary Meaning on Steroids
The presumption of ordinary meaning may be textualism's most fundamental principle. It is nearly two centuries old. Professor Bill Eskridge refers to "the primacy of the ordinary meaning rule" and argues that ordinary meaning is the "linchpin of statutory interpretation." Or as Justice Kavanaugh put it, "follow[ing] ordinary meaning" is "Statutory Interpretation 101." Cases applying the doctrine usually present determining the ordinary meaning of a statutory term as the first step—and often the last step—of interpretation.
But a too robust presumption creates tension with a counter presumption of textualism: "when Congress employs a term of art, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken." Such terms of art can come from science, business, other industry, or most commonly, the law. On that last example, as the Court has also recognized for two centuries, "if a word is obviously transplanted from another legal source, … it brings the old soil with it."
If the presumption of ordinary meaning is calibrated too strongly, it can blind interpreters to technical meaning. (That is what has happened with Title VII's "undue hardship.") And this too-quick turn to ordinary meaning undermines textualism itself. That's because textualism ultimately is not a normative theory of interpretation—it's an empirical one. Textualism is agnostic as to what the meaning actually is, be it ordinary, or legal, or some other technical meaning. Rather, textualism is concerned with determining a statute's contemporary public meaning, whatever that meaning may be. If an overly robust presumption of ordinary meaning causes people to miss a statute's actual meaning, then the presumption is at crossroads with textualism. (The article also discusses and dismisses potential arguments for such a strong presumption, such as fair notice and judicial efficiency.)
Clarifying the Presumption and Refining Textualist Methodology
When one examines a more complete picture of the Court's statutory interpretation cases, one sees that the presumption of ordinary meaning's proper place is more modest. What then is a more accurate portrayal of the presumption, taken from the Court's own cases?
It is presumed that Congress uses statutory terms according to their ordinary meaning absent a definition in the statute, or absent a sufficient, strong, or persuasive indication that the term is a commercial term, an industry term, a scientific term, or some other technical term, or absent any evidence of being a legal term of art that is well settled, widely accepted, longstanding, or robust and that comes from a relevant or related area.
This clarification leads to a proposed refinement of textualist methodology. Specifically, a three-step interpretive process. First, look for a statutory definition. That always trumps. If there is none, then move to step two and determine whether the term has a technical meaning.
That second step will no doubt be labor intensive. Evidence of an indication of non-ordinary meaning can come from the text, the context, the structure, or, if one is inclined to look at it, the legislative history. So, for example, as to the context, if the statute is regulating a particular industry, that alone may require some investigation of whether the statutory term has a specialized meaning in that industry. Likewise, given that statutes often use legal terms without defining them, an investigation into whether the term at issue is a legal one is probably always necessary. That can be done by a quick search in legal databases to see if the term is often used, and if so, a more intensive look to see if the term seems to have a non-ordinary meaning.
If there is no indication of technical meaning, then one can move to the final step: determine the ordinary meaning. In other words, ordinary meaning is the last resort of textualism, not the beginning.
In sum, the tendency of courts and practitioners to not look very hard for evidence of a non-ordinary meaning by relying too heavily on the presumption of ordinary meaning subverts textualism. Textualism looks to the "original meaning of the written law," whatever that meaning may be. This requires "exhausting [all] clues … to resolve the interpretive question put to [the court]." To too quickly resort to ordinary meaning because a statutory term on its face does not appear to have a non-ordinary meaning is to fail the duty that textualism imposes.
Tomorrow I will show how the presumption, amped too high, has caused judges and attorneys to overlook what was in plain sight—that the term "undue hardship" in Title VII is not one of ordinary meaning but is a legal term of art. And that matters, not just because it's the correct meaning of the statute, but also because the relevant legal meaning of "undue hardship" provides more protection in the Act than ordinary meaning does.