James Macleod (Brooklyn Law School) has published "Surveys and Experiments in Statutory Interpretation" on SSRN. Here is the abstract:
The U.S. Supreme Court routinely purports to resolve statutory interpretation disputes by deferring to the “ordinary,” “public” meaning of the statute’s terms (their “OPM”). In recent years, scholars have begun using surveys and experiments to test judges’ claims about OPM in individual cases, and to critique or refine modern textualist theory and practice more generally. This chapter advances two main arguments.First, surveys and experiments can provide highly probative evidence of OPM. Drawing on the handful of survey-experimental efforts to date, along with scholarly criticisms of them, the chapter considers four potential concerns about the probative value of survey-experimental results: whether the right questions were asked; whether the right information was provided; whether participant biases distorted the results; and whether coherent meaning can be derived from responses to individual cases. The chapter suggests that while these concerns are valid, they primarily highlight preexisting ambiguities implicit in textualist decisionmakers’ claims about OPM, not survey experiments’ inability to generate probative evidence of OPM.Second, the chapter suggests that if textualist decisionmakers were to spell out their conception of OPM with enough precision to render it theoretically capable of resolving the hard cases they routinely claim it resolves, then survey-experimental data might reveal that the theory produces disappointing results—not just in discrete cases, but systematically. Specifically, the data might reveal that textualism frequently favors unwieldy standards rather than clear-cut rules, and that in hard cases OPM is rarely clear enough to support modern textualists’ signature move of declaring it dispositive.
Comments