The US Supreme Court routinely purports to resolve statutory interpretation disputes by deferring to the enactment-era “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 particular cases, and to critique modern textualist theory and practice more generally. This chapter argues that surveys and experiments can provide highly probative evidence of OPM, whether one favors the more populist conception of OPM on which the modern Supreme Court frequently purports to rely, or the more thoroughly stylized conception that some scholars favor. Drawing on the handful of published survey-experimental efforts to date, and responding to scholarly criticisms of them, the chapter suggests that surveys and experiments may prove too probative for comfort. If modern textualists were to spell out ex ante their conception of OPM with sufficient precision to render it capable, even in theory, of resolving the hard cases they claim it resolves, then survey-experimental data might reveal that the theory produces disappointing results – not just in discrete cases, but across the board.

Legal language is often ambiguous. Consider: “Only cars and trucks with permits are allowed.” Does [PP with permits] have “wide scope” over the entire series [NP cars and trucks] or “narrow scope” over only the closest noun, [trucks]? Judges often choose narrow scope, citing a legal canon, the “Last Antecedent Rule.” But they sometimes choose wide scope, referencing the “Series Qualifier Canon,” which assigns modifiers to a series. Though judges claim to want to use “most people’s” interpretations, these conflicting choices led us to ask “What WOULD most people say?” We ran three experiments to find out.

Overall, wide scope was preferred. With biased PPs, the preference dropped slightly when the bias matched the last noun, “[NP cars and trucks] [PP with trailers],” but not the first, “[NP trucks and cars] [PP with trailers],” where a universal syntactic “No Crossing Branches principle” limits the PP’s domain. With temporal PPs, “People may park [NP cars and trucks] [PP on weekends],” the preference was also uniformly wide scope, not surprisingly, since these PPs can only modify verbs, not nouns. Taken together, our experiments show how experimental psycholinguistics can offer powerful evidence about how “most people” understand legal language, important information for judges and lawmakers alike.

The law and corpus linguistics movement shares many of the commitments of experimental jurisprudence. Both are concerned with testing intuitions about legal concepts through the lens of empirical evidence gathered through experimentation. Though often discussed in the context of a given case or legal problem, linguistic evidence from legal corpora can help provide content to otherwise indeterminate concepts in the law.

Using language evidence from linguistic corpora, we can begin to have more meaningful conversations about what concepts like ordinary meaning, ambiguity, and speech community might actually mean and make progress on the boundaries of these concepts and their implications for legal interpretation. And, because corpora are constructed from linguistic utterances made in natural linguistic settings, they can provide an important check and means of triangulation for experimental jurisprudence claims that are often premised on survey data.

There is a millennia-old tradition of practical reason in the law. For the last two centuries, various determinist imaginaries have chipped away at that tradition, with one of the newest being strict textualism. This chapter contrasts the interpretive methods that Cicero put forward in his early work, De Inventione, dating to the early first century BCE, with those presented by a greatly influential 2012 book coauthored by Justice Antonin Scalia, Reading Law. The chapter contends that Reading Law offers a method for interpreting, or construing, legal texts that is replete with the hallmarks of practical reason, but the rhetoric with which Reading Law characterizes its method is thoroughly deterministic. This chapter contends that this rhetoric encourages judges to hide their reasoning behind application of simplistic (and often incorrect) “rules” for textual interpretation. The chapter illustrates the contrast in the two approaches by discussing a Texas Court of Appeals opinion – which exhibits Ciceronian practical reason – and the Texas Supreme Court’s opinion in the same case – which exhibits Scalian determinism.

This chapter analyses the indirect judicial application of the Convention on the Rights of the Child (the Convention) in Australia, which is a federal state of dualist tradition. The chapter demonstrates the vulnerability of the Convention in a system of parliamentary supremacy where the Convention is not legislatively incorporated and where the Parliament can make laws contrary to it. In this context, the traditional methods of engaging with the Convention have yielded limited results where there was tension with the domestic law, but were more impactful when there was convergence between the two sets of norms, as seen in the family law context. The Convention is also weakened by the absence of a federal human rights statute. The case study of the application of the Convention by the Supreme Court of Victoria shows that human rights statutes that contain child-specific provisions facilitate the judicial application of the Convention. The chapter also illustrates the creativity of the courts, which occasionally engaged with the Convention in sui generis ways, not explicitly acknowledged as formal methods of engagement.

This chapter analyses the indirect judicial application of the Convention on the Rights of the Child (the Convention) in the United Kingdom, a dualist legal system where the Convention has not been fully incorporated through legislation. Although the courts have somewhat engaged with the Convention through the traditional methods (statutory interpretation and the development of the common law), the Convention has been given effect overwhelmingly in the context of the Human Rights Act 1998 (the HRA), and implicitly of the European Convention on Human Rights and Fundamental Freedoms 1951 (the ECHR). The joint application of the Convention with the HRA–ECHR tandem has been both a facilitating and an inhibiting factor in the judicial effect of the former. Like courts in other jurisdictions, UK courts have also applied the Convention in sui generis ways, diversifying thus the opportunities for its usage. The overlap between the Convention and other legal standards makes the assessment of its impact difficult, but it is clear that the application of the Convention is associated with a more child-sensitive judicial reasoning.

The chapter analyses the judicial application of the Convention on the Rights of the Child (the Convention) in South Africa, which is a hybrid legal system with both monist and dualist features. The largely successful judicial application of the Convention has been facilitated by the country’s constitution, which contains a provision on children’s rights and generous provisions regarding the judicial application of international treaties. The chapter shows that courts favour the application of the Convention as an interpretation tool for the children’s rights clause in the Constitution, but they neglect other possibilities of engagement, such as self-execution or statutory interpretation. This has resulted in lost opportunities to give judicial effect to the Convention. Courts also engage in sui generis forms of application, which has diversified the means of its application. The impact of the Convention is sometimes difficult to discern because of its overlap with domestic instruments. Nonetheless, the Convention has demonstrated its value added when gaps were found in the domestic law, although most often the influence of the Convention has been subtle and diffuse.

This chapter argues that the role of the judge in the collaborative scheme is not to be the faithful agent to the legislature, but rather that the courts should be constructive partners to the legislature in the constitutional scheme, where they are both oriented towards the common goal of achieving good government under the constitution, albeit in their own role-specific ways. In charting the active and creative role of the courts in the constitutional scheme, the chapter emphasises the epistemic and institutional constraints under which courts labour. It also highlights the active and valuable contribution they make to the constitutional system as a whole. The final section of the chapter examines ’the principle of legality’, namely, the presumption of statutory interpretation employed by Anglo-Commonwealth courts that they will read statutory provisions as compliant with rights, unless the contrary is made crystal clear in the statutory language. It is argued that, though ’the principle of legality’ is a powerful judicial tool which judges can use to ensure that rights are protected, it can operate in ’representation-reinforcing’ and even ’democracy-enhancing’ ways.

[1.1] Statutory interpretation is a many-faceted thing. It is a substantive body of law and a process involving a set of skills. It is distinct from (but overlapping with) the application of the law. It is not wholly different from the interpretation of ordinary speech. But it is dissimilar in major respects from formulating the ratio decidendi or the rule of a case. Functionally, statutory interpretation resolves a question of law between parties to a dispute. It also contributes to law-making in the sense that the text of the statute, read with the interpretation, constitutes a new understanding of the law.