+(,121/,1(
Citation: 52 U. Kan. L. Rev. 325 2003-2004
Provided by:
Klutznick Law Library / McGrath North Mullin & Kratz Legal Research C
Content downloaded/printed from
HeinOnline (http://heinonline.org)
Mon May 9 13:48:43 2016
-- Your use of this HeinOnline PDF indicates your acceptance
of HeinOnline's Terms and Conditions of the license
agreement available at http://heinonline.org/HOL/License
-- The search text of this PDF is generated from
uncorrected OCR text.
-- To obtain permission to use this article beyond the scope
of your HeinOnline license, please use:
https://www.copyright.com/ccc/basicSearch.do?
&operation=go&searchType=0
&lastSearch=simple&all=on&titleOrStdNo=0083-4025
Slighting Context: On the Illogic of Ordinary Speech
in Statutory Interpretation
Paul E. McGreal*
I.
INTRODUCTION
During college, I performed with an improvisational comedy group
known as Combination Pizza, or Combo 'Za for short. In a skit known
as "The Symphony," all group members except one stood side-by-side
facing the audience. The remaining group member stood facing the others, back to the audience, as would the conductor of an orchestra. The
conductor would then ask the audience to name an object or a place.
After selecting a topic, the conductor would point to individual group
members, signaling them to improvise a comic rant about the chosen
theme. One night, an audience member shouted out, "Salad bar." Off
we went, with the conductor pointing at one group member and then another, summoning musings on the salad bar. Then, at last, it was my
turn, and, without hesitation, I exclaimed, "Salad bar-a contradiction in
terms!" The crowd roared with laughter.
As I write these words, I still cannot remember why that line
worked. Indeed, I have told the story many times, and no matter how
much background I include, I still get the same response: "What does
that mean?" And, my now-standard answer is, "I was hoping you could
tell me." Yet, on that night, in that place, in front of that audience, the
line was hysterical. Today, the event stands as my best evidence of the
adage, "You had to be there." A set of circumstances, whether the preceding performances that night, happenings on campus that semester,
popular culture-basically, what we call context-combined to make
"Salad bar" my shining moment in improvisational comedy.
The event also captures an important truth about ordinary speech:
speakers leave much unsaid, allowing context to fill the gaps. For example, when I simply said, "Salad bar-a contradiction in terms," I did
* Harry and Helen Hutchens Research Professor and Professor of Law, South Texas College
of Law ([email protected]). My thanks to Bruce Burton, Leandra Lederman, Rocky Rhodes, and
Kevin Yamamoto for comments on drafts of this Article. Also, my thanks to Val Ricks, with whom
I discussed many of the ideas that appear below.
1. The etymology of the group's name is the average college student's near-obsessive pursuit
of late-night pizza, preferably with a combination of toppings.
KANSAS LAW REVIEW
[Vol. 52
not preface it with all the aspects of context that the joke depended on. I
simply assumed a shared context with the audience. Indeed, that is one
reason people do not "get" a joke; they do not share the context that the
joke assumes.2 And that is why I cannot understand why the remark
seemed funny at the time I made it-the context is lost in the mists of
time.
So ordinary speech depends heavily on shared context. And that is
precisely why ordinary conversation is not part of the legal drafter's tool
kit. Consider a lawyer drafting a statute or a contract. The more she
leaves to context-the unspoken assumptions supplied by the readerthe more the drafter risks later manipulation of her work product. Specifically, she risks that the reader will apply a different context. And the
legal drafter knows that those affected by the contract or statute will act
strategically, choosing the context that best serves their interests.3 This
leads the legal drafter to write into text information that an ordinary
speaker would leave to context. Hence, the infamous wordiness of some
legal documents, yielding word usages that have no parallel in ordinary
conversation.
While ordinary conversation is a poor model for understanding legal
texts, some judges and commentators take precisely that approach to
statutory interpretation. When interpreting a crucial word or phrase in a
statute, these writers ask how a speaker of the language might use that
word or phrase in ordinary conversation.4 Specifically, the judge hypothesizes an ordinary conversation where the speakers use the word or
phrase. For example, a judge charged with interpreting a statute that
criminalizes the "use" of a firearm would hypothesize a conversation
2. An extreme example is the so-called "inside joke," where only a very few people share the
context needed to understand the joke.
3. Sometimes the drafter may exploit this possibility by leaving a text under-specified. The
drafter may know that the other party would not agree to her preferred term, or she cannot reach an
agreement with the other party on a term's meaning leaving that term open to future interpretation
hoping that the relevant decision maker will employ the context favoring her client. See Victoria F.
Nourse & Jane S. Schacter, The Politics of Legislative Drafting:A Congressional Case Study, 77
N.Y.U. L. REV. 575, 596-97 (2002) (stating that the authors' survey of congressional staff indicated
that deliberate statutory ambiguity was an accepted method for reaching compromise on contested
language).
4. See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United
States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3, 23 (Amy Gutmann ed., 1997) [hereinafter, A MATTER OF
INTERPRETATION] (stating that "text... should be construed reasonably, to contain all that it fairly
means").
20041
SLIGHTING CONTEXT
where people spoke about "using" a gun or similar items.5 The hypothetical conversation would illustrate the ordinary meaning of the word
"use," and the judge would apply that ordinary meaning in deciding the
case.
Supreme Court Justice Antonin Scalia applies this type of ordinary
conversation argument as part of his textualism. 6 Textualism, in turn,
allows him to determine a statute's meaning without resort to legislative
history. If a statute's meaning can be gleaned from the ordinary meaning
of its text, extrinsic aids such as legislative history are unnecessary.
Thus, an ordinary conversation approach and rejection of legislative history are simply two sides of the same textualist coin.
This Article urges that we not honor the textualist's currency. The
argument derives from a simple, foundational proposition about the
meaning of language: words take on determinate meaning only when
considered within a context. Even when we hear words in isolation (i.e.,
out of context), we must hypothesize a context to make them fully intelligible. For example, the words "give her consideration" may mean
something very different when coming from a lawyer, a letter of recommendation, or a pastor. In short, text and context are inseparable.
Based on this initial proposition, this Article makes three points.
First, an ordinary conversation approach should play no role in statutory
interpretation. As noted above, ordinary conversation is a poor model
for understanding statutes because conversation assumes cooperation
5. This example is taken from a case discussed at length below. See infra notes 132-40 and
accompanying text.
6. I say part of his textualism because Justice Scalia also consults other indicia of meaning,
such as how other federal statutes use a word or phrase, the common law meaning of a term of art,
or established canons of statutory interpretation. See Babbitt v. Sweet Home Chapter of Cmtys. for
a Great Or., 515 U.S. 687, 717-18 (1995) (Scalia, J., dissenting) (using common law meaning of the
word "take" to interpret the Endangered Species Act); United States v. Fausto, 484 U.S. 439, 448
(1988) (examining the legislative purpose of the Civil Service Reform Act); John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REv. 673, 702-05, 731-35 (1997) (discussing
various aspects of the New Textualism practiced by Justice Scalia and others). See generally A
MAtTER OF INTERPRETATION, supra note 4 (discussing the science of interpreting legal texts and
how to improve such interpretation). Justice Scalia rightly rejects a version of textualism he calls
strict constructionism, where a decision maker relies on a word's dictionary definitions and ignores
relevant aspects of statutory context. Id. at 23-24. Yet, he never makes clear precisely what methods of analysis his textualism entails. Instead, Justice Scalia dances around the question by saying
that he would interpret the language to mean "what [it] fairly say[s]," id. at 29, by embracing the
"commonsensical" nature of some interpretive canons, id. at 26, or by saying that he is neither a
strict constructionist nor a literalist, id. at 23-24. Given the cryptic nature of these statements, we
are left to infer his approach from how he decides statutory interpretation cases. As this Article
notes, one tool in his textualist kit is the hypothetical conversation.
KANSAS LAW REVIEW
[Vol. 52
between speaker and listener, while legislative drafting assumes strategic
behavior by the reader. Indeed, legislative drafting often yields word
usages foreign to ordinary conversation. Thus, any conversation we hypothesize will provide an inapt context for understanding words in a
statute.
Second, even if ordinary conversation were probative of statutory
meaning, such an approach would violate the rule of law. Typically, an
ordinary conversation argument claims that a word usage found in a hypothetical conversation represents the "ordinary" or "usual" meaning of
that word. Yet, we have no way to verify this claim. Because an ordinary meaning approach is purely descriptive-it asserts what a word's
ordinary usage is, not what it ought to be-there can be no normative
basis for the claim. And as a descriptive matter, there is no good way to
prove that one word usage is more "ordinary" or "usual" than another.
In the end, the claim reduces to the decision maker's naked, subjective
impression about the ordinariness of a word's usage. We are left with
the rule of one individual's unexplained will, not the rule of law.
Third, judges ought to consult the context of a statute's creationi.e., the legislative process-instead of hypothesizing an irrelevant conversation. Because texts are unique creations of their contexts, statutes
first gain meaning within the context that gave them life: the give and
take of the legislative process. Interpreting the statute in light of a different context, such as a hypothetical conversation, would effectively
invent a new text. To remain true to the statute that was Congress's
handiwork, we must read it within the context of the legislative process,
which is reflected in the statute's legislative history.
This Article proceeds in three parts. Part II begins by describing the
inseparability of text and context. Part II then explains how ordinary
conversation and legal drafting are radically different, making the former
of little interpretive relevance to the latter. Part I examines three of
Justice Scalia's statutory interpretation opinions in light of the discussion from Part II, and Part IV then critiques the three opinions. Part IV
concludes by arguing that an ordinary conversation approach violates the
rule of law, and by offering an original defense of legislative history in
statutory interpretation.
2004]
SLIGHTING CONTEXT
One note before beginning the analysis. I choose Justice Scalia as
the representative textualist not because of his prominence in that
movement, but rather because he has a developed body of both scholarly
and judicial writings that allow us to better understand and test the limits
of the approach. Also, for purposes of exposition, it is helpful to focus
on the work of a single writer. Of course, he is not the only proponent of
textualism, and, where appropriate, I note relevant work by other authors.
H. ORDINARY USAGE
To properly critique ordinary usage, we must first define that practice. This Part offers a view of ordinary usage based on the work of
philosopher Ludwig Wittgenstein.7 For Wittgenstein, a word's meaning
is descriptive, determined by the speakers' use of the word. Section A
sets forth this view, which has similarities to Justice Scalia's appeal to
ordinary conversation.
The remainder of Part II makes three points. First, Section B explains that text and context are inseparable. Each interpretation of a text
assumes a context within which that interpretation makes sense. Even
when text appears to make sense on its own (e.g., the text seems "plain"
or "unambiguous"), it is only because our imagination supplies a hypothetical context that in turn supplies meaning.
Second, Section C argues that ordinary conversation assumes the bilateral cooperation of speaker and listener regarding context. Given the
importance of context to meaning, speaker and listener must share the
proper context to understand one another. Further, the speaker assumes
that the listener will supply the correct context, avoiding the tedious exercise of specifying every aspect of context on which the speaker's
words depend. Without bilateral cooperation, ordinary conversation is
frustrating, bordering on impractical. Cooperation, then, allows conversation to proceed with greater accuracy and less cost in time or effort. 8
7. This Part does not offer an extensive discussion or analysis of Wittgenstein's theory of
language; that task is beyond the scope of this paper and has been done elsewhere with great insight.
E.g., MARIE MCGINN, WrrrGENSTEIN AND THE PHILOSOPHICAL INVESTGATIONS (1997).
The fol-
lowing sections merely describe Wittgenstein's theory of language sufficiently for use in later
discussions of Justice Scalia's textualism.
8.
See DAN SPERBER & DEIRDRE WILSON, RELEVANCE: COMMUNICATION AND COGNMON
48-49 (2d ed. 1995) (discussing the notion of efficiency in "information processing," of which
communication is one such instance). This notion of efficiency parallels the economic analysis of
KANSAS LAW REVIEW
[Vol. 52
Third, Section D argues that legal drafting, including statutory drafting, makes the opposite assumption. Whenever the drafter leaves
meaning to context, 9 she necessarily relies on later readers to supply the
proper context in interpreting her words. Yet, the prudent legal drafter
knows that those who interpret her work will twist her words to their
own ends. When a legal dispute arises, we expect adverse parties to advocate the context that best suits their interests. For example, in
interpreting a criminal statute, we would expect the government to advocate context that supports criminal liability, and the defendant to
advocate context that avoids such liability. Put simply, the legal drafter
expects later readers to act strategically, supplying the context that supports their cause.
A. Wittgenstein and Ordinary Usage
A main task of Wittgenstein's later philosophy,' 0 and the task relevant to our discussion, was to explore how language has meaning." For
many, the first instinct might be to consult a dictionary or some other
source for a word's definition. After all, one thinks, the definition provides the rule for applying a word.' 2 Yet, any such rule itself consists of
procedure, which seeks to minimize the sum of error costs and the direct costs of proceedings.
RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW § 2 1.1, at 517-21 (3d ed. 1986).
9. Of course, it is unavoidable that some meaning will be left to context. See In re Sinclair,
870 F.2d 1340, 1342 (7th Cir. 1989) ("An unadorned 'plain meaning' approach to interpretation
supposes that words have meanings divorced from their contexts-linguistic, structural, functional,
social, historical. Language is a process of communication that works only when authors and readers share a set of rules and meanings."); Frank H. Easterbrook, What Does Legislative History Tell
Us?, 66 CHI.-KENT L. REV. 441, 443 (1990) ("Words do not have natural meanings; language is a
social enterprise."); Manning, supra note 6, at 696 ("Not even the most committed textualist would
claim that statutory texts are inherently 'plain on their face,' or that all interpretation takes place
within the four comers of the Statutes at Large.").
10. Commentators divide Wittgenstein's philosophical career into an earlier and a later period.
See GARTH HALLETr S.J., W=TCENSTEIN'S DEFINITION OF MEANING AS USE 3-4 (1967) (referring
to Wittgenstein's "two periods in philosophical activity"); Hans Sluga, Ludwig Wittgenstein: Life
and Work, An Introduction, in THE CAMBRIDGE COMPANION TO WrrrGENSTEIN I (Hans Sluga &
David G. Stern eds., 1996) (discussing periods of Wittgenstein's philosophical career). For a description of Wittgenstein's earlier work, see generally Sluga, supra. The view of language discussed
in Wittgenstein's later period is relevant to our discussion of ordinary usage.
11. See MCGINN, supra note 7, at 9 (stating that "philosophy of language" was one of the
central aims of Wittgenstein's later work, Philosophical Investigations).
12. See Val D. Ricks, Wittgenstein and Plain Language 6 (2003) (unpublished manuscript, on
file with author) ("Definitions are an example of grammatical rules. By multiplying definitions, we
might eventually give all the rules and thus define language. But being able to give all the rules
would not mean that we know how to speak the language, or even that we understand all the rules.
Dictionaries do not speak the language, nor do they understand what they say. We would not understand definitions unless we already understood the language.").
2004]
SLIGHTING CONTEXT
more words, which require further definitions which, in turn, consist of
more words that require more definitions, and so on. 13 Because this regress of rules (and words) has no stopping point, definitions cannot tell
us how to apply a word-i.e., cannot give us the meaning of a word in
ordinary language.14
Next, one might look for a word's meaning in a paradigm case. A
paradigm case is an example-an object or instance or event-to which
the word refers. So if I say the word "bed," a picture should come to
mind, and the picture supplies the word's meaning. 15 When a person
sees a new object-for example, a sleeping bag on the ground-she must
decide whether to call the new object a "bed." The person conjures up
her paradigm picture of a "bed" and decides whether the new object
squares with that picture.
One flaw in the picture theory of language is that it does not accurately depict all the ways in which people use words. While one might
use the word bed to refer to the object that sits in one's bedroom (e.g.,
the mattress on a frame with a headboard), one could also use the word
to refer to a picture of a bed. So a word will not always refer to an object. 16 Similarly, words that name colors or numbers do not refer to
specific objects. Rather, these words describe a characteristic (redness)
or property (single versus plural) abstracted from objects in the real
world.' 7 A picture theory of language does not account for these uses of
words. 18
13.
14.
Id.
Id.
15. This picture theory of language.was part of Wittgenstein's early philosophy. See DAVID G.
Wittgenstein developed this approach to language in his first published work, TRACTUS LOGICA PHILOSOPHICUS. Stem describes
how the insight came to Wittgenstein:
Wittgenstein had been struck by the observation that verbal reports of a traffic accident
can be modelled using puppets and toy cars, That led him to see a promising analogy between assertoric propositions and models in general. Then he leaped to the conclusion
that the analogy provided the basis for a quite general solution to the problem of understanding the relationship between language and the world: all meaningful language
pictures the world.
Id. at 39.
STERN, WiTrGENSTEIN ON MIND AND LANGUAGE 35-43 (1995).
16.
LUDWIG WrrrGENSTEIN, PHILOSOPHICAL INVESTIGATIONS § 1, at 2 (G.E.M. Anscombe
trans., 3d ed. 1989); see also Robert J. Fogelin, Wittgenstein's Critique of Philosophy, in THE CAMBRIDGE COMPANION TO WITTGENSTEIN 34. 39 (Hans Sluga & David G. Stern eds., 1996) ("Naming
does not provide an adequate model for all uses of language.").
17. When I point to a car and say, "That is red," a person speaking my language will know that
"red" refers to a characteristic of the car-its color-and not the car itself. Cf. STEVEN PINKER, THE
LANGUAGE INSTINCT: How THE MIND CREATES LANGUAGE 156-57 (1994) (stating that experiments
KANSAS LAW REVIEW
[Vol. 52
A second flaw in the picture theory is that, even regarding objects, a
single picture cannot account for all uses of a word. Again, consider the
word "bed." The object that sits in my bedroom cannot explain why I
call a futon or a sleeping bag a "bed." Or, why I might say that an animal sleeps on a "bed" of straw. To reconcile these uses of bed, I might
try to draw analogies between my picture of a bed and these objects,
such as all are used to sleep. In this way, the picture theory-like dictionary definitions-ultimately resorts to rules as the source of word
meaning. Thus, in the end, the picture theory offers no real advance beyond dictionary definitions in understanding language.
A third flaw in the picture theory is that, in practice, a word will not
have a single paradigm case to which all other uses can be analogized.
Wittgenstein illustrates this point in a passage from his Philosophical
Investigations:
66. Consider for example the proceedings that we call "games". I
mean board-games, card-games, ball-games, Olympic games, and so on.
What is common to them all? - Don't say: "There must be something
common, or they would not be called 'games"' - but look and see
whether there is anything common to all. - For if you look at them
you will not see something that is common to all, but similarities, relationships, and a whole series of them at that. To repeat: don't think, but
look! - Look for example at board-games, with their multifarious relationships.
Now pass to card-games; here you find many
correspondences with the first group, but many common features drop
out, and others appear. When we pass next to ball-games, much that is
common is retained, but much is lost. - Are they all amusing? Compare chess with noughts and crosses. Or is there always winning and
losing, or competition between players? Think of patience. In ball
games there is winning and losing; but when a child throws his ball
against the wall and catches it again, this feature has disappeared. 19
Regardless of which "game" serves as the paradigm case, people may
use "game" to refer to some activity that shares no characteristics with
the paradigm. 2° The great run of activities we call games will share
suggest that children learning language instinctively know that the first time a word is associated
with an object that the word names a type of object and not a characteristic of the object).
18. WrrrGENSTEIN, supra note 16, §§ 138-242; MCGINN, supra note 7, at 82-88.
19. WITTGENSTEIN, supra note 16, § 66, at 31.
20. DONALD PALMER, DOES THE CENTER HOLD?: AN INTRODUCTION TO WESTERN PHILOSOPHY 492 (1991).
2004]
SLIGHTING CONTEXT
some characteristics; Wittgenstein calls these "family resemblances.2
Like family members who share common traits-"build, features, colour
of eyes, gait, temperament" 22-the universe of things we call "games"
(as well as other words) will share "a complicated network of similarities overlapping and criss-crossing: sometimes overall similarities,
sometimes similarities of detail. 23 Still, in ordinary usage, a paradigm
does not exist; no single use provides a picture that explains or determines all other uses.
Having rejected dictionary definitions, pictures, and paradigm cases,
where should we turn next? The above-quoted passage from Wittgenstein points the way: "[D]on't think, but look!, 24 To understand the
meaning of a word, one must look at how the word is used in ordinary
2
then the
language. 25 If people use "bed" to refer to a fold-out sofa,26
meaning of bed includes a fold-out sofa. If people use "bed" to refer to a
pile of straw on which a dog sleeps, then the meaning of bed includes the
pile of straw. The use of the word "bed," and not a definition or paradigm case, gives the word meaning. 27
Shared word usages bind people together into communities within
which members can communicate with one another. 28 Use (and thus
WITTGENSTEIN, supra note 16, § 67, at 32.
22. Id.
23. Id. § 66, at 31.
24. Id.
25. Id. § 43, at 20 ("For a large class of cases-though not for all-in which we employ the
word 'meaning' it can be defined thus: the meaning of a word is its use in the language.").
26. Of course, this example raises the questions "what people" and "how many people" must
use a word in a certain way for that use to become part of the word's meaning. This question is
addressed infra notes 33-38 and accompanying text.
27. One commentator makes the same point about the use of the word "chair":
"It is part of the grammar of the word 'chair' that this is what we call 'to sit on a chair'..
• ." That you use this object that way, sit on it that way, is our criterion for calling it a
chair. You can sit on a cigarette, or on a thumbtack, or on a flag pole, but not in that
way. Can you sit on a table or a tree stump in that (the "grammatical") way? Almost;
especially if they are placed against a wall. That is, you can use a table or a stump as a
chair (a place to sit; a seat) in a way you cannot use a tack as a chair. But so can you use
a screw-driver as a dagger; that won't make a screw-driver a dagger. What can serve as
a chair is not a chair, and nothing would (be said to) serve as a chair if there were no
(were nothing we called) (orthodox) chairs. We could say: It is part of the grammar of
the word "chair" that this is what we call "to serve as a chair".
21.
STANLEY CAVELL, THE CLAIM OF REASON: WFIrGENSTEtN, SKEPTICISM, MORALITY AND TRAGEDY
71(1979).
28. See STANLEY FISH, DOING WHAT COMES NATURALLY: CHANGE, RHETORIC, AND THE
PRACTICE OF THEORY IN LITERARY AND LEGAL STUDIES 141 (1989) (discussing the idea of interpre-
tive communities); William S. Blatt, Interpretive Communities: The Missing Element in Statutory
Interpretation,95 Nw. L. REV. 629, 629 (2001) ("A text acquires meaning only by reference to its
KANSAS LAW REVIEW
[Vol. 52
meaning) is a function of learning and then participating in a community
practice. 29 Wittgenstein makes this point in response to an objection to
his discussion of the word "game":
"But if the concept of 'game' is uncircumscribed like that, you don't
really know what you mean by a 'game'."-When I give the description: "The ground was quite covered with plants"-do you want to say
that I don't know what I am talking about until I can give a definition of
a plant?30
In ordinary speech, we simply use words without resort to definitions,
rules, or reasons governing their use.3 ' Communication continues, and
the hearer understands, because use and meaning are constituted by the
life and practices of a community.3 2 Put simply, meaning is descriptive
of practice, not deduced from reason or logic.
Because meaning lies in bare use, different groups may use the same
word in different ways.33 A simple example is a word with a different
usage in two languages.34 Consider the word "once." In English, "once"
readers. The shared understanding of such readers constitutes the 'interpretive community' for the
text.").
29. Indeed, a language is an example of what economists refer to as a "network externality." A
network externality is the idea that a good or service increases in value as the number of users increases. Oz SHY, THE ECONOMICS OF NETWORK INDUSTRIES 1-6 (2000). For example, a fax
machine gains value as the number of users of compatible fax machines-and thus the number of
people to whom who can send a fax-increases. Id. at 3. Languages have the same property-they
increase in value the greater the number of people who speak the language. Id. at 252. Consequently, few people would value learning the language spoken by the title character in the movie
Nell. NELL (Polygram/Egg Pictures 1994).
30. WITTGENSTEIN, supra note 16, § 70, at 33.
31. Wittgenstein's lesson is that language functions without any explanations.
With Wittgenstein, language acts are more complex but not qualitatively different from
other acts: the linguistic/non-linguistic dichotomy fades away, and language is just one
country in a world of human action, not a world apart but on the surface of the same
sphere, or, using a different metaphor, of the same family as the rest of human actions.
Ricks, supra note 12, at 7-8.
32. See PINKER, supra note 17, at 151:
A word is the quintessential symbol. Its power comes from the fact that every member of
a linguistic community uses it interchangeably in speaking and understanding. If you
use a word, then as long as it is not too obscure I can take it for granted that if I later utter
it to a third party, he will understand my use of it the same way that I understood yours.
I do not have to try the word back on you to see how you react, or test it out on every
third party and see how they react, or wait for you to use it with third parties.
33. See generally Blatt, supra note 28, at 629 (discussing the importance of interpretive communities to statutory interpretation).
34. Consider also an urban legend from the business world. In 1972, General Motors Corporation released a car named the Chevrolet Nova. Speakers of English use the word "nova" to mean,
among other things, certain stars in the universe. As the story goes, it never occurred to executives
at General Motors that the word might have a different usage in the languages of other countries
20041
SLIGHTING CONTEXT
may be used to mean a single instance. In Spanish, "once" may be used
for the number eleven. This difference in usage was highlighted in an
episode of a popular television program, where a Spanish-speaking patient was given a drug prescription with the following instruction on the
label: "Take once daily. ' 35 The English-speaking pharmacist used
"once" to mean one time, and the Spanish-speaking patient read "once"
to mean eleven. The misunderstanding ended tragically with a drug
overdose.
Linguistic communities also exist within groups that share a common language. 36 For example, lawyers and other professionals use some
words in distinct ways. These words are the group's jargon. It is high
praise to say that the member of a profession can explain her work to
non-members without using jargon. 38 To avoid jargon, the speaker must
choose words with a shared usage among different linguistic communities (e.g., lawyers and non-lawyers).
In short, a word's meaning lies in its use. But word usage alone is
not enough to understand a speaker's words. Often times, ordinary usage will identify a range of possible word meanings. As the next section
discusses, context helps the listener determine the appropriate usage under the circumstances.
where the car would be marketed. This oversight had unfortunate consequences in Mexico, where
the words "no va" are used to mean "does not go." Different groups-those speaking English and
those speaking Spanish-form different linguistic communities that may use words in different
ways. See Don't Go Here, at http://www.snopes.comlbusinesslmisxlate/nova.htm (last modified
Apr. 3, 1999) (debunking this urban legend). While the story is an urban legend, I use it because it
illustrates the point nicely. Indeed, as put by one source that debunks the myth, "[t]his is another
one of those tales that makes its point so well ... that nobody wants to ruin it with a bunch of
facts." Id. As many sources have pointed out, there are problems with this story. First, it is not
likely that a Spanish speaker will confuse the word "nova" with the words "no va," given that the
two are pronounced with the accent on different syllables. Second, it is not likely that any speaker
would pick apart a single word (nova) to get two words (no va). For example, how likely is it that
an English speaker would fault a furniture manufacturer for giving the trade name "Notable" to a
line of dinette sets? To prove the point, did you just read the word "Notable" as "no table"? Id.
35. ER: Start All Over Again (NBC television broadcast, Oct. 25, 2001).
36. See FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF
RULE-BASED DECISION-MAKING IN LAW AND IN LIFE 58 n.8 (1991) (referring to "linguistic subcommunities, employing their own terms .. .that have different plain or literal meanings in the
larger linguistic community").
37. See infra notes 40-45 and accompanying text.
38.
(1991).
STEPHEN J. GOULD, BULLY FOR BRONTOSAURUS: REFLECTIONS IN NATURAL HISTORY 11
KANSAS LAW REVIEW
B.
[Vol. 52
The Inseparabilityof Text and Context
With knowledge of how a word is used in a language, as well as a
working understanding of the relevant rules of syntax, we often find a
range of meanings for a given utterance. In conversation, then, how do
we know which use is "in-play" at that moment? Are we doomed to indeterminacy because any use is equally possible? Of course not.
Everyday experience tells us that we do understand, with great accuracy,
what use of a word is in-play; that is how we communicate with one another. But how does this work?
To determine how we reflexively hone in on the use that is in-play,
consider the following examples:
*
"[T]he exhortation, 'Keep off the grass,' has a different meaning depending on40 whether it is uttered by a gardener or by a narcotics
counselor.,
*
In ordinary legal usage the word 'case' is ambiguous. We talk of 'reading cases', 'citing cases', 'bringing cases', 'having a good case',
'winning cases', 'submitting no case to answer' and so on. To bring a
39. In addition to word usages, rules of syntax also constrain the possible meanings of words.
Thus, it is false to say that words are completely indeterminate, and thus without possible meaning,
outside a context. One commentator makes the point by examining the sentence, "The yellow bus
crashed into the blue car." Lawrence M. Solan, Learning Our Limits: The Decline of Textualism in
Statutory Cases, 1997 Wis. L. REV. 235, 248.
While context may play some role in how we interpret this sentence, our understanding
of many of its elements is well beyond doubt, whatever the context in which it is uttered.
For example, we know that the speaker is telling us that the bus, and not the car, is yellow, and the car, and not the bus, is blue. We know that "the blue car" is the object of
the preposition, "into." Thus, the sentence cannot be interpreted to mean that the yellow
bus and the blue car jointly crashed into some unnamed object: And we know that the
speaker is telling us that the bus crashed into the car and not that the car crashed into the
bus.
Id. Linguists refer to this acontextual component of meaning as "linguistic semantics," which "includes, in addition to other things, aspects of meaning concerning phrasal structure, the scope of
adverbs and the scope of quantifiers." Id. at 250-5 1. Professor Solan explains that the success of
textualism depends on how much of a statute's meaning lies in linguistic semantics, as opposed to
context such as the legislative process: "[Tihe greater the role that linguistic semantics plays in
interpretation, the more the textualist experiment will succeed. Conversely, the more that contextual
information is required, the more room for misunderstanding without enriched information about
context and the less hope we should have for the success of the experiment." Id. at 251 (footnote
omitted). Professor Solan ultimately concludes that textualism cannot succeed on these terms. Id.
at 262.
40. George H. Taylor, Structural Textualism, 75 B.U. L. REV. 321, 364 (1995) (citing Gerald
Graft. "Keep off the Grass," "Drop Dead," and Other Indeterminacies: A Response .to Sanford
Levinson, 60 TEx. L. REV. 405,407-08 (1982)).
2004]
SLIGHTING CONTEXT
case against someone means to institute legal proceedings against him;
to ask 'have I a good case?' probably means 'have I a good chance of
winning in the legal proceedings?' When we talk of looking
up, citing
41
or reading a case we are talking about a kind of document.
In each example, though a word has more than one use, the relevant use
could be determined by resort to factors outside the word. In the first
example, the relevant use of "grass" was inferred from the identity of the
speaker-a gardener or a narcotics counselor.42 In the second example,
the relevant use of "case" was inferred from actions associated with the
word "case." When a lawyer says "reading cases," the context of "reading" a legal document brings to mind the text of a court decision.4 3 In
each example, the word's context-the identity of the speaker, or actions
associated with the word's usage-determined which usage was inplay. 44 The statement cannot be given a single meaning in the abstract.4 a
Yet, sometimes all we may have is a word or phrase in the abstract,
without surrounding context. Consider the following scenario:
Suppose ... someone were to send [a professor] an unsigned note with
["drop dead"] printed on it. How would [the professor] be able to guess
whether the note constituted a serious expression of ill will, a threat, a
41.
WILLIAM TWINING & DAVID MIERS, How TO Do THINGS WITH RULES: A PRIMER OF IN-
TERPRETATION 280 (3d ed. 1991).
42. See Graff, supra note 40, at 407-08. Graff explores the importance of context by discussing of the phrase "drop dead." He writes:
Consider, for example, the problem of interpreting the words "drop dead." We would
interpret these words in one way if we heard them shouted by the driver whose car we
had just cut in front of on the freeway, and quite a different way if we heard them spoken--even with the same intensity and tone of voice-by a friend whom we knew well,
or one whom we knew to be a frequent kidder.
Id. at 408. The context of the statement-who said it, under what circumstances-aidin determining the meaning of the statement. See Lawrence Lessig, Fidelity in Translation, 71 TEx. L. REV.
1165, 1174-82 (1993) (discussing the importance of context to meaning).
43. Of course, we also have the question of the appropriate linguistic sub-community. See
generally Blatt, supra note 28, at 629 (arguing that a reader's interpretation of text depends on the
perspective of the reader). A lawyer will mean one thing when she says "reading cases" and a doctor may mean something totally different. See also id. ("The word 'spirit,' for example, means one
thing to a painter and another to a minister.").
44. Professor Taylor uses "internal context" to refer to the context found within the text and
"external context" to refer to context found outside the text. Taylor, supra note 40, at 324-25. See
also SCHAUER, supra note 36, at 56-57 (discussing various "contextual factors [that] are presupposed in attributing even the barest amount of meaning to an utterance."); Taylor, supra note 40, at
372-73.
45. See Graff, supra note 40, at 408 ("[Alpart from some inferable situation in which 'drop
dead' is used to commit a speech act... 'drop dead' doesn't mean anything in particular.").
KANSAS LAW REVIEW
[Vol. 52
joke, a put-on, or a message intended for another recipient mistakenly
sent to him? The first thing most people would do on receiving such a
note is start inventing circumstancesto explain it.46
When a word or statement lacks a context, the hearer must "invent" or
47 Withhypothesize a context to understand which meaning is in-play.
out a designated context, the "meaning
. .
. would be indeterminate.
This observation raises a critical point. All interpretations of language
necessarily entail a context within which that interpretation makes sense;
interpretation entails an unavoidable choice of context. Even those who
claim to find the "plain" or "ordinary" meaning of words necessarily
assume a context within which the meaning is "plain" or "ordinary. '49 A
focus of later sections will be exposing and examining how this choice
of context is made.
An example from constitutional law illustrates how seemingly plain
text relies on a web of assumed contextual assumptions. The Presidential Eligibility Clause is often cited as having a plain meaning: "No
Person... shall be eligible to the Office of President... who shall not
have attained to the Age of thirty five Years ... ,50 Why does the
clause strike many as straightforward? It cannot be the words themselves. To see this, consider the clause's accepted meaning: a person
must reach a chronological age of thirty-five to be eligible for president.
But why not interpret the clause to simply require a level of maturitythat of a person approaching middle age-with the electorate as the
judge of that qualification? For example, dictionaries list one usage of
"age" as, "a certain period of human life, marked by a difference of
state, as infancy, youth, manhood, and old age; the age of youth; the age
46. Id. at 409 (emphasis added).
47. Of course, the possible meanings of the words are not boundless, and context will help us
select among possible meanings given the word's usages and the rules of syntax. One commentator
makes the point with the following example: "No amount of context will cause me to conclude that
'Bill hit John' really means, 'the air conditioner on the train was broken, and all the passengers were
sweating when they got off.' Rather, context makes certain possible interpretations more salient
[than others.]" Solan, supra note 39, at 257.
48. Graff, supra note 40, at 409.
49. See John R. Searle, The Word Turned Upside Down, N.Y. REV. BOOKS, Oct. 27, 1983, at
74, 77-78 (asserting that metaphysical foundations do not exist but that truth lies in biological,
psychological, and social foundations); Taylor, supra note 40, at 372-73 (stating that "[iut may be
the case that the literal is identified only within the framework of background linguistic, social, and
cultural assumptions; but where these assumptions are held in common, a sentence can have literal
or plain meaning").
50. U.S. CONST. art. II, § 1, cl. 5. In this discussion, I draw heavily upon Paul E. McGreal,
There Is No Such Thing as Textualism: A Case Study in ConstitutionalMethod, 69 FORDHAM L.
REV. 2393 (2001).
2004]
SLIGHTING CONTEXT
of manhood." 5' Under this usage, "Age of thirty five Years" is just a
52
way of saying "age of mature judgment."
As you read the last paragraph, your gut told you that "Age of thirty
five Years" does not mean "age of mature judgment." 53 But how do you
know this? Text does not tell you. Rather, it is context. When coupled
with a number, and listed as a limitation, the word "age" is ordinarily
used in a chronological sense. You cannot drive until you are sixteen
years of age; you cannot vote until eighteen years of age; you cannot
drink until twenty-one years of age. We use age limits in many areas of
life, and, when we do so, our practice is to require chronological age.
Indeed, we may make exceptions for people who are not of the requisite
chronological age but nonetheless seem eligible. So our practice tells us
to treat age limits as stating a chronological age.
As we will see later, when asked to interpret a statutory word or
phrase, Justice Scalia occasionally hypothesizes a conversation where
that word or phrase is used. While perhaps sound in theory, Justice
Scalia's practice falls short in an important respect: he never explains
how he chose the context that his hypothetical conversation assumes. He
dismisses a range of alternate hypothetical contexts that give the word or
phrase different meanings, privileging a single hypothetical context
without elaboration. This unexplained choice leaves an important gap in
his analysis.
5 1. Webster's New Twentieth Century Dictionary 33 (1955).
52. Judge Frank Easterbrook suggests further interpretations:
When the Constitution says that the President must be thirty-five years old, we cannot be
certain whether it means thirty-five as the number of revolutions of the world around the
sun, as a percentage of average life expectancy (so that the Constitution now has age fifty
as a minimum), or as a minimum number of years after puberty (so the minimum now is
thirty or so).
Frank H. Easterbrook, Statutes' Domains, 50 U. CHI. L. REV. 533, 536 (1983). 1disagree, however,
that "we cannot be certain" that the Clause requires chronological age. Our practice of using
chronological age for legal age limits allows us to be as "certain" as we can be about language use
about how to apply the Clause.
53. Similarly, it would be obviously incorrect to read "thirty five" in base eight, which would
yield an age of twenty-nine. See Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1223, 1224
(1995). This merely reflects our practice of stating age limits in base ten, the same method we use
to express chronological age in daily life.
KANSAS LAW REVIEW
[Vol. 52
C. The Role of Cooperationin Conversation
Words gain meaning from their use in context. For conversation to
succeed, then, the speaker and listener must share the same word usages
and context. 54 If either usage or context is mismatched, they will not
understand one another. To illustrate this point, once again consider the
phrase, "Keep off the grass." First, consider word usage, where the context is a drug counseling meeting. In that context, the speaker uses
"grass" to refer to marijuana. If the listener uses "grass" to refer to cocaine, she will misunderstand the speaker.55
Now, consider context. Assume that the listener and speaker had
just finished a conversation that included, among other things, cultivating a new lawn. At the end of the conversation, the speaker says, "Hey,
remember: Keep off the grass!" As the words have no meaning "in
themselves," we must pair the word "grass" with some context to supply
a meaning. 56 In this context-lawn care-the listener should apply the
usage "lawn," and not the usage "marijuana.- 57 When the listener ap54. See SPERBER & WILSON, supra note 8, at 43 (stating that "[it is left to the communicator
to make correct assumptions about the codes and contextual information that the audience will have
accessible and be likely to use in the comprehension process").
55. Of course, it is possible that the listener would still understand the speaker to mean cocaine
given the other context of the conversation. See PINKER, supra note 17, at 183-88. This is an example of misspeaking or slip of the tongue.
56. Graff, supra note 40, at 407-08. Professor Graff has explained as follows:
One might suppose that the expression "keep off the grass" is sufficiently familiar that
we know what it means independent of any situation in which it may be used. In fact,
the expression's familiarity probably depends on our imagining a standard situation with
which we associate the words-a sign seen on a well-manicured lawn, say, or the cry of a
gardener working on such a lawn while somebody is walking across it. "Keep off the
grass" would mean something entirely different if we overheard the expression uttered by
a narcotics-counselor, in appropriate circumstances, to a person known to us as a convicted marijuana-user. Even sentences that lack the same potential for ambiguity as the
example I've chosen ("Keep off the tulips") can be used to mean a great variety of things.
Though we can say that certain utterances "normally" are used to mean one thing rather
than others they might potentially be used to mean (and it's such normal expectations
that enable us to make educated guesses of what is meant in particular cases), this fact itself demonstrates that interpretation is concerned not with what words or sentences mean
"in themselves" but with how speakers actualize the semantic potential of words and utterances in particular speech acts.
Id.
57. I do not mean "should" in a normative sense, but rather in an empirical sense, in that it
accords with the ordinary expectations of speaker and listener. Authors Dan Sperber and Deirdre
Wilson make the point as follows:
Our claim is that all human beings automatically aim at the most efficient information processing possible. This is so whether they are conscious of it or not; in fact, the
very diverse and shifting conscious interests of individuals result from the pursuit of this
2004]
SLIGHTING CONTEXT
plies the
same context as the speaker, the two will understand one an58
other.
Professor Lawrence Solan offers an example that further illustrates
how speaker and listener leverage shared context for meaning:
[A]ssume that two men, A and B, are in a cocktail lounge having a
drink together. It is 5:30 in the afternoon, and they have agreed to stay
until 6:00, when A is supposed to meet his wife. A and B have young
children, jobs, and wives who also work, and they are talking about the
difficulties they and their wives have juggling all their responsibilities.
A finished his drink a few minutes earlier. When B finishes his, A says
to B: "Are you going to have another one?" B must decide whether A is
talking about babies or martinis. How did he understand the remark?
To answer this question, we search as hard as we can for contextual
clues. The only one that I have included so far is the time: there are still
30 minutes remaining before A is to meet his wife. If it were already
6:00, then A would more likely be talking about babies since there
would be no time for another drink. We naturally want to know more.
Exactly what were they talking about when A asked the question? Expenses? Vacation plans? It makes a difference. We have two inferred
plans-the evening schedule and the substance of the conversationand we cannot tell from the information I have provided which plan was
permanent aim in changing conditions. In other words, an individual's particular cognitive goal at a given moment is always an instance of a more general goal: maximising the
relevance of the information processed.
SPERBER & WILSON, supra note 8, at 49. See also Solan, supra note 39, at 253 ("[T]he Cooperative
Principle is not intended as a prescription for good conversational behavior ....
Rather, it is intended to be descriptive, characterizing what we automatically and unselfconsciously assume
discourse is about every time we hear or read language, putting aside such issues as sarcasm, irony
and so on.").
58. Sperber and Wilson use the term "relevance" to capture the idea of selecting the appropriate context for a speaker's words. SPERBER & WILSON, supra note 8, at 46-50. They illustrate their
meaning of relevance with the following example:
Information processing involves effort; it will only be undertaken in the expectation of
some reward. There is thus no point in drawing someone's attention to a phenomenon
unless it will seem relevant enough to him to be worth his attention. By requesting
Mary's attention, Peter suggests that he has reason to think that by paying attention, she
will gain some relevant information. He may, of course, be mistaken, or trying to distract her attention from relevant information elsewhere, as the maker of an assertion may
be mistaken or lying; but just as an assertion comes with a tacit guarantee of truth, so
[communication] comes with a tacit guarantee of relevance.
Id. at 49. The speaker is relevant, then, by saying something that appeals to the context most likely
to be applied by the listener and thus most likely to be understood by the listener. See generally id.
(describing in detail how this guarantee of relevance makes communication possible).
KANSAS LAW REVIEW
[Vol. 52
the one that A had in mind. Thus, even if B could 59understand A's question as part of a coherent conversation, we cannot.
Fuller knowledge of the relevant context is what allows A and B to know
what was meant, while we are unclear. And "to the extent that the context clarifies the situation," A and B are "not even likely to perceive any
ambiguity even though the ambiguity continues to exist" for those who
lack the context. 60 This winnowing process is a function of context, and
not the word itself: "It is not that the word 'one' has become determinate
in meaning in some abstract sense. Rather, the circumstances lead us to
infer that the speaker intended61 a particular referent for 'one.' Other possible referents go unnoticed.",
Ordinary experience leads us to expect that speaker and listener will
apply the correct word usage62 and context.63 Of course, this expectation
is not always met.64 We have all had the experience of non sequiturs
and the like, where a speaker shifts contexts without warning, leaving us
in the rhetorical dust. In that case, we stop the speaker and ask for fur59. Solan, supra note 39, at 253-54.
60. Id. at 254.
61. Id.
62. The indication of different word usages itself can come from context. In a conversation,
one person's remarks may indicate that they are using the word differently from the other person.
For example, an American speaker might make a comment to a British speaker that, "Football is
exciting." In saying these words, the American speaker has in mind the game played by, among
others, the National Football League in the United States. The British speaker then replies, "Yes
indeed. Did you see the last World Cup?" At this point, the American speaker, knowing that no
version of American football he is familiar with plays a "World Cup," will start to suspect that the
British speaker is referring to a different game. If the American speaker has knowledge about international sports, she may know that some English speakers refer to the game soccer also as
"football." Thus, without express statements about word usages, a speaker may infer that another
speaker is employing a different word usage. Cf.PINKER, supra note 17, at 151 (discussing common inferences from word usages).
63. See id. at 228. With respect to context, Professor Pinker has this to say:
[L]isteners tacitly expect speakers to be informative, truthful, relevant, clear, unambiguous, brief, and orderly. These expectations help to winnow out the inappropriate
readings of an ambiguous sentence, to piece together fractured utterances, to excuse slips
of the tongue, to guess the referents of pronouns and descriptions, and to fill in the missing steps of an argument.
Id.
64. As with the American and British speaker described in supra note 62, speakers in a conversation will continuously parse the other speaker's words to gauge whether the two speakers are
applying the same word usages and contexts. This is akin to what Thomas Sowell calls an authentication process.
THOMAS SOWELL, KNOWLEDGE AND DEcISIONs 4-5 (1980).
An authentication
process is a method or practice that assesses the validity of information. Id. In a conversation, the
information to be verified is the assumption that the speakers in the conversation are applying the
same word usages and context. Each speaker uses the other's words to continuously update and
verify that assumption, making corrections or clarifications when necessary.
2004]
SLIGHTING CONTEXT
ther context. The speaker defied our expectation that text and context
are shared.65 In short, speakers in ordinary conversation assume that
their counterparts will cooperate, applying the relevant usages and contexts to their words.
An important reason for assuming cooperation between speaker and
listener is efficiency, or, as Professor Stephen Pinker has put it, the scarcity of "air time., 66 Professor Pinker describes how this efficiency
works:
The efficiency . . . depends on the participants' sharing a lot of
background knowledge about the events and about the psychology of
human behavior. They must use this knowledge to cross-reference the
names, pronouns, and descriptions with a single cast of characters, and
to fill in the logical steps that connect each sentence with the next. If
background assumptions are not shared-for example, if one's conversational partner is from a very different culture, or is schizophrenic, or
is a machine-then the best parsing [of grammar] in the world will fail
to deliver the full meaning of a sentence.67
As an example, Professor Pinker asks us to "consider how much knowledge about human behavior must be interpolated to understand what he
means in a simple dialogue like this:
Woman: I'm leaving
you.
68
Man: Who is he?
Consider some of the simple assumptions bundled into these two lines.69
Men and women often form relationships with one another, and for one
partner to "leave" the other means ending the relationship. These relationships often entail exclusivity--each partner abstains from similar
relationships with other men and women during the relationship. Breaking this exclusivity often causes major harm to the other partner, who
may feel justified in ending the relationship. All these assumptions
65. To Sperber and Wilson, the speaker has broken the guarantee that her words would be
relevant. SPERBER & WILSON, supra note 8, at 49-50.
66. See PINKER, supra note 17, at 226 ("Conversation would bog down if one had to refer to"
every piece of shared context required to understand everyday speech.).
67. Id. at 227.
68. Id.
69. In the terms used by Sperber and Wilson, one could say that the following information
must be manifest to the speaker and listener for the conversation to succeed. SPERBER & WILSON,
supra note 8, at 39.
KANSAS LAW REVIEW
[Vol. 52
about human nature, as well as many more, are necessary to understand
the six words written above. Imagine how cumbersome conversation
would be if this context had to be reiterated instead of assumed sub silentio.
Another example comes from President Richard Nixon's White
House tapes, which Professor Pinker calls "the most famous and extensive transcripts of real-life speech ever published. 7 ° Consider the
following passage from the tapes, where "P" is President Nixon, "H" is
his chief of staff H.R. Haldeman, and "D" is his counsel John Dean:
D: They, they're going to stonewall it, uh, as it now stands. Except
for Hunt. That's why, that's the leverage in his threat.
H: That is Hunt's opportunity.
P: That's why, that's why,
H: God, if he can lay thisP: That's why your, for your immediate thing you've got no choice
with Hunt but the hundred and twenty or whatever it is, right?
D: That's right.
P: Would you agree that that's a buy time thing, you better damn well
get that done, but fast?
D: I think he ought to be given some signal, anyway, to, toP: [expletive deleted], get it, in a, in a way that, uh-Who's going to
talk to him? Colson? He's the one who's supposed to know him.7'
As Professor Pinker explains, understanding this short passage requires
knowledge of much unspoken context. 72 For example, one needs to
know who the speakers are, that they are speaking about the Watergate
break-in, and what the Watergate break-in was. Further, the listener
would need to know who Hunt is (a worker on President Nixon's 1972
re-election campaign), why the speakers are concerned about Hunt (he
knows about the Watergate break-in and can connect members of President Nixon's administration to that event), why Hunt may want to cause
trouble for the speakers (Hunt may divulge what he knows about Watergate in exchange for favorable treatment by prosecutors), and what
might motivate Hunt to not cause trouble (some people may accept cash
in exchange for taking on some risk, such as the risk of greater punish70. PINKER, supra note 17, at 224.
71. Id. at 223 (quoting Watergate Transcripts, House Comm. on the Judiciary (1974)) (from a
March 17, 1973, conversation among President Nixon, White House counsel John W. Dean, and
Chief of Staff H.R. Haldeman).
72. Id. at 223-24.
2004]
SLIGHTING CONTEXT
ment). 73 Without this context (and much more), which the speakers undoubtedly shared, the conversation's mix of pronouns, clipped phrases,
and inside references are incomprehensible. Again, leaving much to
shared context allowed the conversation to be more efficient.
Cooperation is not simply a matter of style, making conversation
more concise; it makes communication more efficient 74 by increasing a
speaker's speed and clarity.75 Speed affects a conversation's cost because, as economists know, time is money. In some circumstances, this
is literally so, as when a lawyer charges clients by the hour, or when
long distance companies charge callers by the minute. But even seemingly costless activities, such as casual conversations, have an
opportunity cost.7 6 Each second one engages in casual conversation one
forgoes the opportunity to engage in other, valuable activities, whether
they be leisure, profit-making, or otherwise.7 7 By reducing the time
needed to communicate, cooperation reduces the cost of doing so.
73. Id.
74. Another time-saving device is a pronunciation rule known as "flapping." See PINKER,
supra note 17, at 175-79 (discussing "flapping"). Professor Pinker describes the concept with the
following example:
Say the words pat and pad. Now add the inflection -ing and pronounce them again: patting, padding. In many dialects of English they are now pronounced identically; the
original difference between the tand the d has been obliterated. What obliterated them is
a phonological rule called flapping: if a stop consonant produced with the tip of the
tongue appears between two vowels, the consonant is pronounced by flicking the tongue
against the gum ridge, rather than keeping the tongue there long enough for air pressure
to build up.
Id. at 175. Professor Pinker explains how such phonological rules help make speech both faster and
less ambiguous. Id. at 179-81.
75. SPERBER & WILSON, supra note 8, at 46 ("Efficiency with respect to relative goals is a
matter of striking a balance between degree of achievement and expenditure."). As a matter of
evolution, it makes sense that a species would evolve to communicate more clearly and quickly. See
Steven Pinker, Survival of the Clearest,404 NATURE, Mar. 30, 2000, at 441,441 ("Language would
seem to be a natural target of evolutionary analysis. Universal, heritable, rapidly acquired by children and well suited to communicating complex information, language is plausibly an adaptation
that allowed our ancestors to share knowledge and negotiate agreements, fuelling the technological
and demographic explosions that led our species to infest the planet millennia ago."). A commentatorwho has reviewed recent work in evolutionary game theory argues that an alphabet of letters that
can be combined to form words (as opposed to a separate symbol for each object or action) and
syntax are optimal strategies for "Darwinian organisms." Id. at 441-42. See also Martin A. Nowak
etal., The Evolution of Syntactic Communication, 404 NATURE, Mar. 30, 2000, at 495, 495-98
(applying evolutionary game theory to syntax).
76.
See WILLIAM J. BAUMOL & ALAN S. BLINDER, ECONOMICS: PRINCIPLES AND POLICIES 36
(3d ed. 1985) ("'he opportunity cost of any decision is the foregone value of the next best alternative that is not chosen.").
77. Any lawyer who has billed by the hour has lived this experience. Casual office conversations are scarce because each second chatting is a second not billed.
KANSAS LAW REVIEW
[Vol. 52
And this speed does not come at the expense of clarity. Consider
again Professor Pinker's example of the exchange between a man and a
woman:
Woman: I'm leaving
you.
78
Man: Who is he?
Given the substantial, diverse information assumed by these words, it is
remarkable that speaker and listener hone in on the appropriate context.
Cooperation means not only that context can be left unspecified (make
speech lest costly), but that speaker and listener can rely on one another
to apply the most appropriate context under the circumstances (increasing clarity). 79 Because this process does not follow a precise algorithm,
mistakes happen. But, on80 balance, cooperation provides a remarkable
balance of clarity and cost.
Professor Pinker summarizes the speaker and listener's symbiotic relationship thusly:
The act of communicating relies on a mutual expectation of cooperation
between speaker and listener. The speaker, having made a claim on the
precious ear of the listener, implicitly guarantees that the information to
be conveyed is relevant: that it is not already known, and that it is sufficiently connected to what the listener is thinking that he or she can
make inferences to new conclusions with little extra mental effort.
Thus listeners tacitly expect speakers to be informative, truthful, relevant, clear, unambiguous, brief, and orderly. These expectations help
to winnow out the inappropriate readings of an ambiguous sentence, to
piece together fractured utterances, to excuse slips of the tongue, to
guess the referents of pronouns
and descriptions, and to fill in the miss8
ing steps of an argument. 1
78. PINKER, supra note 17, at 227.
79. Again, for a more detailed discussion of how people hone in on the most appropriate context for a given situation, see generally SPERBER & WILSON, supra note 8.
80. See id. at 44-45 (rejecting the idea that communication involves a "failsafe algorithm,"
instead arguing that "communication is governed by a less-than-perfect heuristic. On this approach,
failures in communication are to be expected: what is mysterious and requires explanation is not
failure but success.").
81. PINKER, supra note 17, at 228-29 (emphasis added).
2004]
SLIGHTING CONTEXT
When we speak or listen, we assume the cooperation of our conversational partner, attributing mistakes to error or oversight, not malice.82 In
short, cooperation makes conversation possible.
D. The Absence of Cooperationin Legal Drafting
Professor Pinker makes an important addendum to his explanation of
speaker-listener cooperation:
When a receiver of a message is not cooperative but adversarial, all of
this missing information [i.e., the context] must be stated explicitly,
which is why we have the tortuous language of legal contracts with their
'party of the first part' and 'all rights under said copyright and all re83
newals thereof subject to the terms of this Agreement.'
Professor Pinker might have also included "the tortuous language of'
statutes with their "as hereinbefore referenced in the preceding subsection" and "including but not limited to.''84 His basic point is that law
speak operates under a radically different assumption from ordinary conversation. Using this insight, this Section makes two points. First, while
those in ordinary conversation assume cooperation in supplying the correct context, those in law practice assume strategic behavior. Second,
fearing strategic behavior by those who will later use their words, legal
drafters try to leave as little meaning to context as they can. This effort
82. Paul Grice's Cooperative Principle offers a similar account of ordinary speech. See generally H. Paul Grice, Logic and Conversation,in 3 SYNTAX AND SEMANTICS: SPEECH ACTS 41 (Peter
Cole & Jerry L. Morgan eds., 1975). Grice offers several "maxims" that make conversation possible, such as that the speaker make her words "relevant" and "brief' and that she "avoid ambiguity."
Id. at 45-46. Several legal commentators have suggested the relevance of Grice's Cooperative
Principle to legal interpretation. See BERNARD S. JACKSON, MAKING SENSE IN LAW 70-73 (1995);
Geoffrey P. Miller, Pragmaticsand the Maxims of Interpretation, 1990 WIS. L. REV. 1179, 11911224; M.B.W. Sinclair, Law and Language:The Role of Pragmaticsin Statutory Interpretation,46
U. PITT. L. REV. 373, 373-420 (1985); Solan, supra note 39, at 251-62; Peter Tiersma, The Language of Silence, 48 RUTGERS L. REV. 1, 12 n.34 (1995). As above, the point is a descriptive one.
See Miller, supra, at 1192 ("[B]ecause people usually act cooperatively in conversational settings,
most conversational speech acts can be interpreted as being cooperative in nature.").
83.
PINKER, supra note 17, at 228-29.
84. Evidence of such language is the common caution by writers on legal drafting to avoid
such circumlocutions. See REED DICKERSON, THE FUNDAMENTALS OF LEGAL DRAFTING 207-09
(2d ed. 1986) (urging the legal drafter to avoid "gobbledygook" such as "hereinbefore" and "aforementioned," as well as redundancies such as "null and void" and "each and every"); JACK STARK,
THE ART OF THE STATUTE 76 (1996) (discouraging the use of lawyer jargon in statutes); G.C.
THORTON, LEGISLATIVE DRAFTING 80 (3d ed. 1987) ("One of the most telling criticisms of the
language of the law is that it habitually wraps its meaning in a mist of unnecessary jargon.").
KANSAS LAW REVIEW
[Vol. 52
This effort often results in word usages that have little or no parallel in
ordinary speech.
An adversarial attitude is endemic to law. The basic unit of law
practice is the lawyer-client relationship, 85 with the lawyer using her legal skills to further her client's lawful goals. In doing so, a lawyer owes
her client many duties, such as competence,86 confidentiality,8 7 and candor. 88 For our purposes, the most relevant duty is that of loyalty-the
lawyer must remain strictly loyal to her client's lawful interests. 89 And
essential to that loyalty is the lawyer's further duty to zealously pursue
her client's lawful interests. 9° Consequently, in interpreting a statute,
85.
See MODEL RULES OF PROF'L CONDUCT pmbl. (1983) [hereinafter MRPC]:
[I ] A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality ofjustice.
[2] As a representative of clients, a lawyer performs various functions. As advisor, a
lawyer provides a client with an informed understanding of the client's legal rights and
obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a
lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile
their divergent interests as an advisor and, to a limited extent, as a spokesperson for each
client. A lawyer acts as evaluator by examining a client's legal affairs and reporting
about them to the client or to others.
86. MRPC R. 1.1 ("A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.").
87. Id. R. 1.6(a) ("A lawyer shall not reveal information relating to representation of a client
unless the client consents after consultation, except for disclosures that are impliedly authorized in
order to carry out the representation, and except as stated in paragraph (b)."). The scope of permitted disclosure has recently become a controversial issue with the Securities and Exchange
Commission initially proposing to require some lawyers to make a noisy withdrawal from representing a client.
88. Id. R. 3.3(a) (noting that lawyers owe tribunal duty to not knowingly make false statements
of material fact, omit controlling adverse legal authority, or offer false evidence).
89. If the lawyer finds a prospective client's lawful goals to be repugnant, the lawyer may
refuse representation or withdraw from the matter. Id. R. 1.16(b) ("Except as stated in paragraph
(c), a lawyer may withdraw from representing a client if ... a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent .... "). Once the lawyer has undertaken
representation, however, the lawyer must act diligently to further her client's lawful goals. Id. R.
1.16(c) ("When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation."). Indeed, the profession's ethics rules limit the
lawyer's ability to withdraw without good cause, protecting the client from any prejudice such withdrawal might produce. Id. R. 1.16(b) ("Except as stated in paragraph (c), a lawyer may withdraw
from representing a client if withdrawal can be accomplished without material adverse effect on the
interests of the client .... ").
90. Id. R. 1.3 ("A lawyer shall act with reasonable diligence and promptness in representing a
client."); see also id. R. 1.1 ("A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably
necessary for the representation.").
2004]
SLIGHTING CONTEXT
one expects a lawyer to zealously advocate the interpretation that best
suits her client's interests. 91
To illustrate how a lawyer might act strategically in choosing which
context to advocate, consider a statute that provides, "It shall be unlawful to operate a vehicle in the park.' ' 92 Assume a lawyer is defending a
person charged with violating this statute by riding a bicycle in the park.
The interpretive question is whether a bicycle is a "vehicle" within the
meaning of the statute. Assume that plausible 93 alternate contexts for the
statute are, first, safety concerns for pedestrians, and, second, environmental concerns regarding air pollution.9 4 The zealous advocate will
select the context that best suits her client's interest. Here, the lawyer
will choose the second context (prevent air pollution) and argue that,
because her client's bicycle does not contribute to air pollution, it should
not be deemed a vehicle.
Of course, the lawyer's duty of zealous representation operates
within certain professional restrictions. For example, both the profession's ethics rules95 and the Federal Rules of Civil Procedure 96 prohibit
frivolous arguments. Yet, those prohibitions leave lawyers much room
within which to advocate for their clients. On legal ethics, the American
Bar Association's Model Rules of Professional Conduct provide: "A
lawyer shall not bring or defend a proceeding, or assert or controvert an
issue therein, unless there is a basis for doing so that is not frivolous,
which includes a good faith argument for an extension, modification or
91. As noted below in the text accompanying notes 95-111, the lawyer's advocacy of a favorable interpretation is tempered somewhat by the ethical and procedural prohibition of frivolous legal
arguments.
92. Professors Lon Fuller and H.L.A. Hart debated this hypothetical in their scholarly exchange
on interpretation. See Lon L. Fuller, Positivism and Fidelity to Law-A Reply to ProfessorHart, 71
Harv. L. Rev. 630, 663 (1958); H.L.A. Hart, Positivism and the Separationof Law and Morals, 71
Harv. L. Rev. 593, 607 (1958).
93. The ethical and procedural bars on frivolous legal arguments discussed in the next paragraph restrict lawyers to advocating plausible contexts.
94. Again, the lawyer's ethical and procedural obligations to avoid frivolous arguments will
limit her to advocating plausible contexts.
95. See id. R. 3.1 (requiring that a lawyer may not make an argument "unless there is a basis
for doing so that is not frivolous").
96. See FED. R. CIv. P. I1 (b)(2) ("By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney.., is certifying
that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the claims, defenses, and other legal contentions therein are
warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal
of existing law or the establishment of new law").
KANSAS LAW REVIEW
[Vol. 52
reversal of existing law." 97 The official comments note that the Rule is
not meant to mitigate the lawyer's duty of zealous advocacy: "The advocate has a duty to use legal procedure for the fullest benefit of the
client's cause, but also a duty not to abuse legal procedure. 9 8 And
while "[t]he law, both procedural and substantive, establishes the limits
within which an advocate may proceed ...
the law is not always clear
and never is static." 99 Thus, "the law's ambiguities and potential for
change ' °° leave the lawyer a wide range within which to advocate her
client's cause. Further, the lawyer's "action is not frivolous even though
the lawyer believes that the client's position ultimately will not prevail."' ' Rather, the lawyer
only needs to have a "good faith argument"
02
on her client's behalf.
On the procedural side, judges rarely categorize a substantive argument as frivolous, instead saving Rule 11 sanctions103 for rather clear
failings, such as misstatements of the law and inadequate legal research. 1°4 For example, a lawyer was properly sanctioned for including
in her brief quotations from judicial opinions that were edited in a misleading manner.10 5 And sanctions were upheld where the lawyer failed
97. MRPC R. 3.1. Regarding criminal proceedings, the Rule further provides: "A lawyer for
the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be
established." Id.
98. Id. R. 3.1 cmt. 1.
99. Id.
100. Id.
101. Id. R. 3.1 cmt. 2.
102. Id.
103. For an exhaustive review of the case law under Rule 11, see Jerold S. Solovy et al., Sanctions Under Rule 11, in CURRENT DEVELOPMENTS INFEDERAL CIVIL PRACTICE 141 (2001).
104.
5A CHARLES ALAN WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE AND PROCEDURE §
1335 (1990).
Not surprisingly, sanctions have been imposed when the party's position is groundless
under existing law, there is a failure to cite controlling law, or there is a misstatement as
to the content of existing law. Sanctions are not likely to be imposed, however, on a
matter of first impression, even if there is contrary authority in other courts, or when the
law is not clear. In order to avoid the feared "chilling effect" of Rule 11 becoming a reality, many federal courts have been quite tolerant of novel theories as long as they are not
completely lacking in merit. Also, a failure to comply with one of the procedural rules,
such as a pleading requirement, normally will not be sanctioned under Rule 11.
Id. (footnotes omitted).
105. See Precision Specialty, Inc. v. United States, 315 F.3d 1346 (Fed. Cir. 2003) (stating that
the lawyer's editing of quotations gave the tribunal a "misleading impression of the state of the law
on the point" and thus violated Rule 11 of the Court of International Trade, which parallels the
Federal Rule of Civil Procedure 11). Similarly, one court upheld sanctions where the lawyer "did
not indicate.., that they sought the reversal of precedent." United States v. Milam, 855 F.2d 739,
745 (11 th Cir. 1988).
2004]
SLIGHTING CONTEXT
to cite controlling precedent. °6 But a lawyer should not be sanctioned
for advocating an interpretation of an ambiguous statute that either is
later rejected by appellate courts,'1 7 or that runs counter to authority in
other jurisdictions. 18 One court has characterized the Rule 11 inquiry as
whether the party's legal argument has "no chance of success under existing precedents." 1° 9 As another court aptly noted, "it seems selfevident that when a particular point of law is unsettled, parties and (or)
their attorneys need not accurately prognosticate the correct law in order
to avoid sanctions."' 10 To do so would "stymie the necessary creativity,
diligence and zeal involved in effective advocacy."' ' l
So lawyers are free to argue all good faith interpretations of a statute. And one need not be a committed post-modernist to concede that
many statutes are susceptible to multiple, non-frivolous interpretations.
The best evidence of this fact is the Supreme Court's many split decisions in statutory interpretation cases." 2 Despite sometimes overheated
106. Jorgenson v. County of Volusia, 846 F.2d 1350, 1351 (1
lthCir. 1988).
107. Carragher v. Morgan Elecs., Inc., 971 F.2d 327, 328 (9th Cir. 1992): see also LaSalle
Nat'l Bank of Chicago v. County of DuPage, 10 F.3d 1333, 1338-39 (7th Cir. 1993) (recognizing
that the law at the time of filing was vague); Beverly Gravel, Inc. v. DiDomenico, 908 F.2d 223,
230 (7th Cir. 1990) (holding that the "pattern" element in the Racketeering Influenced and Corrupt
Organization Act was sufficiently ambiguous that the party's interpretation, which was ultimately
rejected, was not frivolous). Courts have held, however, that a lawyer may be sanctioned for reasserting a legal argument after the court has warned that the argument is meritless. Sprewell v.
Golden State Warriors, 231 F.3d 520, 530 (9th Cir. 2000); Berwick Grain Co. v. Ill. Dep't of Agric., 217 F.3d 502, 504 (7th Cir. 2000).
108. See, e.g., Solovy et al., supra note 103, at 211 ("Under the language authorizing arguments
for the extension of law, a party should not be sanctioned for raising an issue of first impression in
one circuit, even if other courts have resolved the issue to the contrary."); Danese v. City of Roseville, 757 F. Supp. 827, 830 (E.D. Mich. 1991) (holding that plaintiff's "failure to succumb to the
dictates of [two Fifth Circuit cases in a Sixth Circuit district court] does not amount to an unreasonable practice").
109. In re Who's Who Worldwide Registry, Inc., 232 B.R. 38, 49 (E.D.N.Y. 1999); see also
Eastway Const. Corp. v. City of New York, 762 F.2d 243, 254 (2d Cir. 1985) (stating that "where it
is patently clear that a claim has absolutely no chance of success under the existing precedents, and
where no reasonable argument can be advanced to extend, modify or reverse the law as it stands,
Rule II has been violated").
110. Sec. Indus. Ass'n v. Clarke, 898 F.2d 318, 321-22 (2d Cir. 1990), overruled on other
groundsby 496 U.S. 384 (1990).
111. Id. at 322; see also Protective Life Ins. Co. v. Dignity Viatical Settlement Partners, 171
F.3d 52, 57 (1st Cir. 1999) (holding that the party's "aggressive" advocacy was not sanctionable
even though it "attempted to squeeze too much from the[] cases" it cited as precedent). The Advisory Committee Notes to the 1983 amendments to Rule 11 echo this sentiment: "The rule is not
intended to chill an attorney's enthusiasm or creativity in pursuing factual or legal theories." FED.
R. Civ. P. 11 advisory committee's notes.
112. See WILLIAM N. ESKRIDGE, JR. Er AL., LEGISLATION: STATUTES AND THE CREATION OF
PUBLIC POLICY 817-1098 (3d ed. 2001) (excerpting a wide array of Supreme Court statutory interpretation opinions). See generally Charles Tiefer, The Reconceptualization of Legislative History
KANSAS LAW REVIEW
[Vol. 52
rhetoric," 13 one would hardly classify members of the Court as incompetent or their arguments as frivolous."14 Further, over its history, the
Supreme Court has applied various, sometimes conflicting,' 15 methods of
statutory interpretation." 6 In sum, a mere requirement of non-frivolous
argument leaves lawyers much room within which to advocate an understanding of a statute that best suits their client's purposes.'7
An example of this interpretive freedom is the canonical statutory interpretation case Holy Trinity Church v. United States.' 8 There, the
Court considered whether a federal statute governing immigration "to
perform labor or service of any kind" applied to a person who immigrated to serve as church "rector and pastor."" 9 Out of context, either
interpretation is plausible. Thus, the Court's task was to pair the text
with some context that made one interpretation more compelling than
the other.
As one might expect, each side argued that the statute's text supported its view. The United States argued that the statute should be
interpreted broadly to include work as a "rector or pastor," as the text
did not limit the word "service." Indeed, the text was expansive, extend-
in the Supreme Court, 2000 Wis. L. REV. 205 (reviewing the Supreme Court's turn away from
textualism and toward a renewed embrace of legislative history).
113. See FCC v. Nextwave Pets. Communications, Inc., 123 S. Ct. 832, 840-42 (2003) (accusing the dissent in interpreting a provision of the Bankruptcy Code of "distorting the text of the
provision" and of analyzing the statute's purpose "in splendid isolation from [the statute's] language"); id. at 842 (concurring with the majority, but calling the question "close") (Stevens, J.,
concurring).
114. Cf. Indianapolis Colts v. Mayor of Baltimore, 775 F.2d 177, 181-82 (7th Cir. 1985) (finding the fact that the trial judge and the dissenting judge on the appellate panel agreed with the
party's legal argument was enough to conclude that, the argument did not violate Rule 11).
115. For a classic discussion of conflicting canons, see Karl N. Llewelyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes are to be Construed, 3
VAND. L. REV. 395 (1950). Justice Scalia has argued that Llewelyn's criticisms misstated some
canons, made some up, and misunderstood yet others. A MATTER OF INTERPRETATION, supra note
4, at 26-27. For an annotated list of canons used by the Supreme Court, see WILLIAM N. ESKRIDGE,
JR., DYNAMIC STATUTORY INTERPRETATION 323-28 (1994).
116. For a discussion of the various methods used and the different outcomes reached, see
ESKRIDGE ET AL., supra note 112, at 817-1098.
117. Cf. Antonious v. Spalding & Evenflo Cos., 275 F.3d 1066, 1073 (Fed. Cir. 2002) (holding
that the lawyer's reliance on a dictionary definition to construe the terms of a patent was a nonfrivolous legal argument, even though the definition advocated was inappropriate in context).
118. 143 U.S. 457 (1892). For some extended analyses of this case, see ESKRIDGE, supra note
115, at 208-10; A MATTER OF INTERPRETATION, supra note 4, at 18-23; Carol Chomsky, Unlocking the Mysteries of Holy Trinity: Spirit, Letter, and History in Statutory Interpretation, 100
COLUM. L. REV. 901 (2000); Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 STAN. L. REV. 1833 (1998).
119. Holy Trinity, 143 U.S. at458.
2004]
SLIGHTING CONTEXT
ing the prohibition to "labor or service of anykind.'' 2 ° Further, the statute expressly exempted actors and lecturers; suggesting that all other
workers were within the statute's coverage.
Thus, the Court had no
basis to exclude service as clergy from the statute's reach.
In response, the church argued that "labor or service" should be interpreted to mean "only . . . the work of the manual laborer, as
distinguished from that of the professional man.' 2 2 To make this argument, the church argued that the statute's context was concern over
employers paying to immigrate manual laborers who would exacerbate
domestic unemployment. The Court agreed, finding clues to the statute's context in both its title and purpose.123 First, regarding the title of
the act:
[T]he title of this act is, "An act to prohibit the importation and migra-
tion of foreigners and aliens under contract or agreement to perform
labor in the United States, its Territories, and the District of Columbia."
Obviously the thought expressed in this reaches only to the work of the
manual laborer, as distinguished from that of the professional man. No
one reading such a title would suppose that Congress had in its mind
any purpose of staying the coming into this country of ministers
of the
24
gospel, or, indeed, of any class whose toil is that of the brain.
This context was confirmed by the evil at which the statute aimed:
It had become the practice for large capitalists in this country to contract with their agents abroad for the shipment of great numbers of an
ignorant and servile class of foreign laborers, under contracts, by which
the employer agreed, upon the one hand, to prepay their passage, while,
upon the other hand, the laborers agreed to work after their arrival for a
certain time at a low rate of wages. The effect of this was to break
down the labor market, and to reduce other laborers engaged in like occupations to the level of the assisted immigrant. The evil finally became
so flagrant that an appeal was made to Congress for relief by the passage of the act in question, the design of which was to .
120.
121.
122.
123.
124.
Id. (emphasis added).
Id. at 458-59
Id. at 463.
Id. at 463-64.
Id. at 463.
KANSAS LAW REVIEW
[Vol. 52
in
discountenance the migration of those who had not sufficient 2means
5
their own hands, or those of their friends, to pay their passage.'
work, not the
In this context, "labor or service" referred only to manual
26
work of those engaged in the traditional professions.
Holy Trinity illustrates how text and context can leave lawyers much
room to argue their preferred interpretation of a statute. The careful legal drafter internalizes this observation about language and lawyers'
strategic behavior. Specifically, she assumes that lawyers advocate the
statutory context entailed by their client's preferred interpretation. 127 To
prevent such manipulation, the careful legal drafter tries to leave less
meaning to context, incorporating aspects of the drafting context into the
text. 28 As Professor Pinker noted above, the consequence is phrases,
sentences, and word usages that have no natural parallel in ordinary
speech. To best understand this language, then, we should immerse ourselves in the legislative context, exploring the strategic concerns that
animated the drafters, and understand how the text responds to those
challenges. In sum, we must adopt the skeptical attitude of legislative
drafting, not the cooperative attitude of ordinary conversation. 129
125. Id. at 463-64 (quoting United States v. Craig, 28 F. 795, 798 (C.C.E.D. Mich. 1886)).
126. Id. at 472; see also Vermeule, supra note 118, at 1865 (arguing that the Court badly misread the applicable legislative history). But see Chomsky, supra note 118, at 943 (arguing that the
Court's use of legislative history was both unremarkable and incorrect). Their disagreement, while
interesting, is beyond the scope of this discussion. The present point is simply that Holy Trinity
illustrates once again how context provides meaning and thus is inseparable from text. Whether the
Court accurately described the statute's context is another question, which is not pursued here.
127. See, e.g., James F. Byrne, Standby Letter of Credit Rules: An Exercise in Drafting a Commercial Statute, 9 ARIZ. J. INT'L & COMP. L. 366, 379-485 (1992) (containing an edited transcript
of the Select Advisory Group discussion of a proposed draft of the Standby Letter of Credit Rules);
Jonathan W. Diehl, Note, Drafting a FairDNA Exception to the Statute of Limitations in Sexual
Assault Cases, 39 JURIMETRICS J. 431, 439-40 (1999) (noting that certain proposed statutory language may be "difficult to implement" because defendants may be able to make strategic use of it);
Thomas R. Haggard, The South CarolinaAnti-Stalking Statute: A Study in Bad Drafting, 5 S.C.
LAW. 13, 15 (1994) (noting that poor drafting of the state's anti-stalking statute allows a defendant
accused of "common and particularly egregious form of stalking" to argue that the defendant's
conduct falls outside the statute).
128. See DICKERSON, supra note 84, at 30-31 (stating that when a legal drafter cannot assume
that her audience will apply the correct context to her words, "needed context can be supplied by
including appropriate information in the instrument or by referring to other documentation.").
129. For example, federal courts appear to do so in tax cases, where ambiguous statutes are to be
interpreted to close loopholes. See Gitlitz v. Comm'r, 531 U.S. 206, 221-22 (2001) (arguing that
the majority should have read the literal language to close a loophole) (Breyer, J., dissenting);
United States v. Skelly Oil Co., 394 U.S. 678, 684 (1969) (stating that a "clear declaration of intent
by Congress" is needed to create a loophole); Charles lDfeld Co. v. Hernandez, 292 U.S. 62, 68
(1934) (emphasizing the need of a clear provision to establish a loophole). A tax loophole is a classic instance of strategic interpretation to one's client's advantage. A loophole exists when a uniform
scheme requires a certain tax treatment disadvantageous to one's client, but an ambiguity in a por-
20041
SLIGHTING CONTEXT
E. Coda
Part I developed four points. First, a word's meaning is descriptive,
determined by its use by speakers of a language. Second, when a word
has more than one usage, context determines which usage is in-play in a
given setting. Third, in ordinary conversation, speaker and listener each
assume that the other will cooperate by applying the correct word usage
and context. This cooperation is essential to effective conversation.
Fourth, legal drafters do not assume cooperation by readers of their
work. Rather, legal drafters assume that later readers (i.e., lawyers) will
strategically choose the context that supports their client's preferred interpretation. Consequently, the practice of legal drafting is far removed
from ordinary conversation. The next Part applies these insights to Justice Scalia's textualism.
111. ORDINARY USAGE IN JUSTICE SCALIA'S TEXTUALISM
This Part reviews three cases where Justice Scalia used ordinary
conversation in interpreting statutes, 130 making two points. First, the
discussion explains how Justice Scalia used a hypothesized conversation
to interpret the statute at issue. Second, I show how this conversationbased approach could support the opposite interpretation by offering my
own hypothetical conversation. This, of course, raises the question of
which hypothetical conversation best illuminates the statute's meaning, a
question which Justice Scalia ignores. 131
A.
Smith v. United States
132
Justice Scalia offers Smith v. United States13 3 as an exemplar of his
textualist approach. 134 Smith involved a federal statute that increased the
tion of the scheme allows the lawyer to argue for a contrary, advantageous treatment of her client's
specific circumstances.
130. As this Article was in the publication process, Justice Scalia once again used ordinary
conversation to interpret a statute, this time for a unanimous court. See Barnhart v. Thomas, 124 S.
Ct. 376, 381 (2003) (upholding Social Security Administration's decision that a person is not disabled under the Social Security Act if she is able to perform her prior job, regardless of whether her
prior job still exists in significant numbers in the national economy).
131. See generally Heidi M. Hurd, Sovereignty in Silence, 99 YALE L.J. 945 (1990) (arguing
that statutes are not communicative acts as are ordinary conversations).
132. 508 U.S. 223 (1993).
133. Id.
KANSAS LAW REVIEW
(Vol. 52
criminal penalty for a defendant who "during and in relation to any
crime of violence or drug trafficking crime . . .uses or carries a fire-
arm. ''0 35 In committing a drug offense, the defendant in Smith had
exchanged a gun for drugs, but had not brandished or discharged the
-gun. The issue was whether exchanging the gun for drugs constituted
"use" of the gun within the meaning of the statute.136 The Court held
conduct fell within the statute, and Justice Scalia
that the defendant's
37
dissented.1
Justice Scalia's dissent relied heavily on his view of how people use
the relevant statutory words in ordinary conversation. The argument
consists mainly of the following paragraph:
In the search for statutory meaning, we give nontechnical words
and phrases their ordinary meaning. To use an instrumentality ordinarily means to use it for its intended purpose. When someone asks, "Do
you use a cane?," he is not inquiring whether you have your grandfather's silver-handled walking stick on display in the hall; he wants to
know whether you walk with a cane. Similarly, to speak of "using a
firearm" is to speak of using it for its distinctive purpose, i.e., as a
weapon. To be sure, "one can use a firearm in a number of ways," including as an article of exchange, just as one can "use" a cane as a hall
decoration-but that is not the ordinary meaning of "using" the one or
the other. The Court does not appear to grasp the distinction between
how a word can be used and how it ordinarily is used. It would, indeed, be "both reasonable and normal to say that petitioner 'used' his
MAC-10 in his drug trafficking offense by trading it for cocaine." It
would also be reasonable and normal to say that he "used" it to scratch
his head. When one wishes to describe the action of employing the instrument of a firearm for such unusual purposes, "use" is assuredly a
verb one could select. But that says nothing about whether the ordinary
meaning of the phrase "uses a firearm" embraces such extraordinary
employments. It is unquestionably not reasonable and normal, I think,
to say simply "do not use firearms" when one means to prohibit selling
or scratching with them.'3s
Justice Scalia distinguishes between the possible uses of a word ("how a
word can be used") and the ordinary usage of a word ("how it ordinarily
134.
A MATTER OF INTERPRETATION, supra note 4, at 23-24.
135. 18 U.S.C. § 924(c)(1)(A) (2000).
136. Smith, 508 U.S. at 225.
137. Id. at 243.
138. Id. at 242-43 (citations and footnotes omitted).
2004]
SLIGHTING CONTEXT
is used"). Here, the ordinary usage of "use" is "use it for its intended
purpose." All other uses, while possible, are not ordinary and thus are
not the best interpretation of the statute. The next question, to which we
turn, is how Justice Scalia decides which word usage is "ordinary"?
The answer lies in Justice Scalia's provocative example of the cane
query. He argues: "When someone asks 'Do you use a cane?,' he is not
inquiring whether you have your grandfather's silver-handled walking
stick on display in the hall; he wants to know whether you walk with a
cane." 139 He uses an example of ordinary conversation to establish the
ordinary usage of a word. But is Justice Scalia's hypothetical question
intelligible outside of some context? Imagine that someone you never
met before approached you on the street and asked, "Do you use a
cane?" What would be your reaction? Would you simply respond, "I
do/do not walk with a cane," depending on your circumstances? Or, as
is more likely, would you respond, "Who are you?", and "Why are you
asking me that question?" Without knowing the answer to these two
questions, the stranger's question is difficult to process because the
speaker and listener do not have the shared context necessary to successfully communicate. 140
A personal anecdote may illustrate the perils of communication absent a shared context. One day, while standing on a street corner, a
woman I did not know approached me and asked, "Is it late?" Perhaps
because I was thinking about getting home in time for dinner, I interpreted her question as asking about the time of day-"Is it late in the
day?" Without her prompting, I supplied that missing information from
my own perspective. As it turns out, she was asking, "Is the bus late?"
You see, I was standing at a bus stop, and she wanted to know whether
the bus was running late. The anecdote illustrates how two people in the
same situation can understand words differently because they each highlight a different aspect of the shared context. I highlighted the late hour
of the day; the woman highlighted that we were standing at a bus stop. In
139. Id. at 242.
140. The same can be said for another hypothetical Justice Scalia offers in a footnote: "I think it
perfectly obvious, for example, that the objective falsity requirement for a perjury conviction would
not be satisfied if a witness answered 'no' to a prosecutor's inquiry whether he had ever 'used a
firearm,' even though he had once sold his grandfather's Enfield rifle to a collector." Id. at 242 n.1
(Scalia, J., dissenting). Well, that depends on the context. If the question were asked during a
prosecution of a defendant who allegedly sold stolen property to save her business, in context, it
might be clear that the question-"Did you use a gun?"-includes selling the gun for profit. By
answering "no" to that question, the defendant opens himself up to a perjury charge.
KANSAS LAW REVIEW
[Vol. 52
both instances, context, not some notion of ordinariness, supplied each
meaning.
Back to Justice Scalia's cane query. What if the question comes as I
am thinking about how I played stickball as a child? Will I process the
question as, "Do you use a cane to play stickball?" Perhaps. And what
if I am thinking about decorating my office? Will I process the question
as, "Do you use a cane as a decoration?" Perhaps. And what if I am
thinking about beating dust and dirt out of a rug? Will I process the
question as, "Do you use a cane to beat your rugs?" Perhaps. And what
if ... ? You get the picture. Descriptively, people do use the word
"use" in different ways, each way making sense in its own context.
Without knowing the speaker's context, we simply would not know how
to answer the question, "Do you use a cane?"
The important point is that the question, "Do you use a cane?," is
only determinate when we hypothesize a context for those words. As
just discussed, the question will be understood differently in different
contexts. Justice Scalia assumes a context in which the question asks
about the intended use of a cane. In doing so, however, he begs two important questions: first, why choose that context?, and second, why is
that context the most appropriate one for the statutory language in question? As his implicit choice of context effectively decides the outcome,
these are two crucial questions. Part IV returns to these questions.
141
B. O'Gilvie v. United States
Justice Scalia again used ordinary conversation in O Gilvie v. United
States,142 where the Court interpreted an Internal Revenue Code provision that excluded from gross income the "amount of any damages
received . . . on account of personal injuries or sickness." 143 Specifically, the case asked whether punitive damages awarded in a personal
144
injury lawsuit were "received . . . on account of personal injuries."'
Based on the Code's legislative and administrative history, as well as
judicial precedent, the Court held that the exclusion
included only com46
145
pensatory damages; Justice Scalia dissented.
141. 519 U.S. 79 (1996).
142. Id.
143. Id. at 81 (citing 26 U.S.C. § 104(a)(2) (1988)).
144. Id.
145. Id. at 83-90.
146. While the case was pending before the Supreme Court, Congress amended the relevant
provision of the Internal Revenue Code to clarify that punitive damages are not excluded from in-
2004]
SLIGHTING CONTEXT
Justice Scalia's dissent again used a hypothetical conversation to interpret the relevant statutory language:
The nub of the matter, it seems to me, is this: If one were to be
asked, by a lawyer from another legal system, "What damages can be
received on account of personal injuries in the United States?" surely
the correct answer would be "Compensatory damages and punitive
damages-the former to compensate for the inflicting of the personal
injuries, and the latter to punish for the inflicting of them." ... [The
Court's interpretation] is neither the exact nor the ordinarymeaning of
the phrase, and hence not the one that the statute should be understood
to intend. 147
As in Smith, Justice Scalia uses a hypothetical conversation to identify
the ordinary meaning of language. Once again, his hypothetical conversation is fully intelligible only if paired with a specific context. So the
next question is whether one might understand this conversation differently in a different context.
To answer our question, consider another question: Who is the
"one" that is asked the question by the foreign lawyer? An American
lawyer? An American personal injury lawyer, insurance defense lawyer,
general practitioner, etc.? The average American lay person? The average American who has been a litigant? Who? Does Justice Scalia
believe that all these people would give the same answer? Probably not.
Yet, for the conversation to have a single, ordinary meaning, he assumes
a specific identity for the listener.
Even after specifying the conversation's participants, how is Justice
Scalia so sure that the answer to his question, "What damages can be
received on account of personal injuries in the United States?," will include punitive damages? What if the listener interpreted the question to
mean, "What damages are measured by reference to the plaintiff's personal injuries?" The answer to that question would include such items
come: "the amount of any damages (other than punitive damages) received... on account of personal physical injuries or physical sickness." 26 U.S.C. § 104(a)(2) (2002) (emphasis added). The
House Conference Report, however, noted that the Court had granted certiorari in a case interpreting
the provision and explained that "[n]o inference is intended as to the application of the exclusion to
punitive damages prior to the effective date of the House bill in connection with a case involving a
physical injury or physical sickness." H.R. REP.No. 104-737, at 301 (1996). Further, the O'Gilvie
Court ignored the amendment both because "neither party has argued that it is relevant," and
"[b]ecause it is of prospective application, the section does not apply here." O'Gilvie, 519 U.S. at
90.
147. O'Gilvie, 519 U.S. at 94-95 (Scalia, J., dissenting) (emphasis added).
KANSAS LAW REVIEW
[Vol. 52
as medical expenses, pain and suffering, lost income, and loss of consortium, which are all measured directly by the extent of the plaintiff's
personal injuries. Conversely, punitive damages typically focus on the
defendant-the egregiousness of the defendant's conduct 48 as well as
the defendant's net worth. 149 While compensatory damages make the
plaintiff whole on account of her personal injuries, punitive damages
punish the defendant to deter that defendant and others from similar
misconduct. Understood this way, the natural response to Justice
Scalia's question would not include punitive damages.
So how do we know what the "normal" or "ordinary" response to
Justice Scalia's question would be? The answer lies in the nature of
conversation. As discussed above, two people in a conversation would
likely share an assumed context within which the question was relatively
clear. 50 For example, assume a conversation between a lawyer and a
client that went as follows:
Client: What kind of money could I get if I filed a lawsuit?
Lawyer: That depends. In a lawsuit like this, you certainly would get
money for your injuries-what happened to you in the accident. Also,
if the defendant did really bad things-acted with bad intent, like, uh,
malice-then you might be able to get more money-money to punish
him for what he did. They call that punitive damages.
Client: So I can get money to pay for my injuries, like having to miss
work, doctors' bills and the like. And I can also get money to punish
the guy.
Lawyer: Yes. Well, uh, you definitely can get money for the injuries to
your person-they call that personal injuries. But the punitive damages-to punish him-you, uh, need to-uh, you can only punish
someone if they did something really bad, like they wanted to harm you.
The law calls that recklessness or malice. If what he did wasn't reckless or malicious, then you can only get money for the personal injuries
I mentioned before.
Client: So what damages can I get on account ofpersonal injuries?
Lawyer: You can get your medical bills paid, any wages you
have lost, past or present, and any pain and suffering.
148. See Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 15 (1991) ("Under the traditional common-law approach, the amount of the punitive award is initially determined by a jury instructed to
consider the gravity of the wrong and the need to deter similar wrongful conduct.").
149. See TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 464 (1993) (stating that "many
States permit the jury to take account of the defendant's wealth" in awarding punitive damages).
150. See supra notes 54-82 and accompanying text.
2004]
SLIGHTING CONTEXT
Following along in this conversation, one would not read the italicized
question-Justice Scalia's question from above-to ask about punitive
damages. The preceding conversation makes clear that the lawyer and
client are speaking about personal injuries and punitive damages as separate items. And that is how a question like this arises-within a
conversation in which the context makes the question relatively clear.
The speaker and listener cooperate by bringing the same context to bear
on each other's words, and understanding follows.
Once again, Justice Scalia relies on a hypothetical conversation
without specifying the context within which his preferred reading is considered "ordinary" or "normal."
Again, this omission leaves two
important questions unanswered: why prefer that context? and why is
that context relevant to the statute under consideration?
C. Holloway v. United States 5 '
In Holloway v. United States, 15 the Court interpreted the federal
criminal carjacking statute, which prohibits the taking of an automobile
"with the intent to cause death or serious bodily harm."' 153 At trial, the
defendant admitted that he intended to kill his victims if they resisted his
carjacking attempt. The question was whether the carjacking statute applied to the defendant's conditional intent to harm, or whether the statute
required unconditional intent-intent to kill or harm regardless of what
happened during the carjacking attempt. The Court held that the statute
allowed conviction for conditional intent; 154 Justice Scalia dissented.
Justice Scalia dissented on his view "that in customary English usage the unqualified word 'intent' does not usually connote a purpose that
is subject to any conditions precedent except those so remote in the
speaker's estimation as to be effectively nonexistent."1 55 He endeavored
to prove this usage with examples from ordinary speech. As in the preceding cases, his discussion deserves close attention and thus is
excerpted in full.
151. 526 U.S. 1, 1-12 (1999).
152. Id.
153. 18 U.S.C. § 2119 (1994 & Supp. I]I) (emphasis added).
154. See Holloway, 526 U.S. at 12 ("The intent requirement of § 2119 is satisfied when the
Government proves that at the moment the defendant demanded or took control over the driver's
automobile the defendant possessed the intent to seriously harm or kill the driver if necessary to
steal the car.").
155. Id. at 13 (Scalia, J., dissenting).
KANSAS LAW REVIEW
[Vol. 52
In a first paragraph, Justice Scalia offered his examples of ordinary
speech:
If I have made a categorical determination to go to Louisiana for
the Christmas holidays, it is accurate for me to say that I "intend" to go
to Louisiana. And that is so even though I realize that there are some
remote and unlikely contingencies-"acts of God," for example-that
might prevent me. (The fact that these remote contingencies are always
implicit in the expression of intent accounts for the humorousness of
spelling them out in such expressions as "if I should
live so long," or
156
"the Good Lord willing and the creek don't rise.")
This description of ordinary speech should be uncontroversial. Indeed, it
nicely illustrates Professor Pinker's point about assumed context and
cooperation in speech.157 Through experience, we all know that certain
unlikely contingencies, such as death, serious bodily injury, or bad
weather could prevent us from doing an activity we intend to undertake.
As one of life's common denominators, this assumption remains unspoken, allowing speech to be more efficient. The cooperative listener will
supply the assumed condition-assuming I am not killed or seriously
injured-and understanding will occur.
The remainder of Justice Scalia's first paragraph is more questionable:
It is less precise, though tolerable usage, to say that I "intend" to go if
my purpose is conditional upon an event which, though not virtually
certain to happen (such as my continuing to live), is reasonably likely to
happen, and which I hope will happen. I might, for example, say that I
"intend" to go even if my plans
58 depend upon receipt of my usual and
hoped-for end-of-year bonus.'
It is not at all clear why this second usage is "less precise" or only "tolerable." If English speakers use "intend" in this way, and if the usage is
apparent in context, then how is it imprecise or somehow suspect? For
example, if during a conversation about what they will do with their anticipated bonuses, employees repeatedly say, "I intend to paint the
house," or, "I intend to go to Aruba," the listeners implicitly supply the
condition "if I get a bonus" to each speaker's statement. In this context,
156. Id. at 14 (Scalia, J., dissenting).
157.
158.
See supra notes 54-82 and accompanying text.
Holloway, 526 U.S. at 14 (Scalia, J., dissenting).
2004]
SLIGHTING CONTEXT
the usage is clear. The usage might be imprecise to a person who walks
in during the middle of the conversation, but that is only because the
new listener does not share the necessary context. Or, the conditional"intent" usage may be imprecise if the speaker uses it in a conversation
where the listeners will not supply the proper context. For example, if
people are discussing their plans for that evening-i.e., what each person
unconditionally "intends" to do that evening-a speaker's use of the
word "intend" to convey conditional intent, without further elaboration,
may be misunderstood. In both cases, usage of the word "intend" is imprecise only because listeners did not apply the correct context.
In the second paragraph, Justice Scalia continued his acontextual assault on uses of the word "intent":
But it is not common usage-indeed, it is an unheard-of usage-to
speak of my having an "intent" to do something, when my plans are
contingent upon an event that is not virtually certain, and that I hope
will not occur. When a friend is seriously ill, for example, I would not
say that "I intend to go to his funeral next week." I would have to make
it clear that the intent is a conditional one: "I intend to go to his funeral
next week if he dies." The carjacker who intends to kill if he is met
with resistance is in the same position: He has an "intent to kill if resisted"; he does not have an "intent to kill." No amount of
rationalization can change the reality of this normal (and as far as I
know exclusive) English usage. The word
in the statute simply will not
9
bear the meaning that the Court assigns.1
This time, Justice Scalia claims that a usage of the word "intent" is "unheard-of." That assertion is simply not true. Imagine the following
context. A parent directs their adult child that they should visit their
great aunt sometime over the winter holidays. The child reluctantly
agrees, though warns that he cannot make the visit if a bad snow storm
hits. In fact, given the sour relationship with this relative, the child
hopes it will snow so he does not have to make the visit. As the child
leaves the parents' house, the parent asks, "You're going to your great
aunt's house, right?" The child responds, "Yes, I intend to go." Parent
and child both know from context, however, that the child will happily
seize upon a valid excuse to not go.
'9 Id. (Scalia, J., dissenting).
KANSAS LAW REVIEW
[Vol. 52
So in the proper context, this usage of "intend" is possible. This
brings us back to the question of context. Again, the question is why
one hypothetical conversation represents the proper context and another
does not. Justice Scalia hypothesizes a context where a person speaks
about attending the funeral of a seriously ill friend. His observation
makes sense to me-i.e., it resonates with my experience. But, I hypothesized another context-the adult child visiting the great aunt-in
which such a conditional use makes sense. So why is the sick-friend
context a better match for the carjacking statute than the great-aunt context? As in Smith and O'Gilvie, Justice Scalia never justifies his choice
of context. In the next section, we turn to the implications of this omission.
IV. THE CRIrIQUE
The preceding Part reviewed three cases where Justice Scalia applied his ordinary conversation approach. In each case, we saw that
Justice Scalia used a hypothetical conversation to interpret statutory
words or phrases. Each hypothetical conversation assumed a hypothetical context within which the conversation made sense. Yet, Justice
Scalia never defended his choice of context. This Part uses these observations to make three points about his ordinary conversation approach.
First, Justice Scalia most likely ignored the choice of context because it
poses an insurmountable obstacle to an ordinary conversation approach
to statutory interpretation. His choice must be either normative or descriptive, and neither basis is acceptable. If it is normative, he has
abandoned the ordinary usage approach, which is entirely descriptive of
speakers' practices. If it is descriptive, the approach either poses insoluble empirical problems, or violates the rule of law.
Second, even if the context selection problem could be solved, differences between ordinary conversation and legal drafting cut against
such an approach. Recall that ordinary speakers assume good faith cooperation by their listeners. Conversely, legal drafters assume strategic
behavior by their audience. This leads legal drafters to use word usages
with no parallel in ordinary conversation.
Third, given the centrality of context to meaning, and given the special context of statutory drafting, we ought to interpret statutes within
their special context. Accepting that legal drafters try to pre-empt manipulation of their work product, we ought to consider the types of
manipulation they anticipated and how the statute's language addressed
20041
SLIGHTING CONTEXT
those possibilities. To the extent that legislative history sheds light on
these issues, it ought to be considered. The following sections treat
these three points in turn.
A.
Slighting Context
A common thread throughout Part III was Justice Scalia's failure to
defend his choice of context in constructing a hypothetical conversation.
To see this more specifically, consider the analytical structure of his hypothetical conversation arguments. First, he isolated the statutory word
or phrase to be interpreted. Second, he identified what he called the ordinary usage of the word or phrase, which in each case differed from the
Court's preferred interpretation. Third, to illustrate that his interpretation corresponded with ordinary usage, he offered a hypothetical
conversation where he believed the ordinary usage made sense. Fourth,
to counter competing interpretations, he showed how other uses of the
relevant word or phrase would make the hypothetical conversation nonsensical. In this analysis, the third and fourth steps bear the analytic
workload. The first step merely frames the question, and the second step
merely asserts the conclusion to be supported. The third and fourth steps
are where Justice Scalia must persuade us that his interpretation matches
ordinary usage.
As discussed in Part 111, a hypothetical conversation only has meaning when placed in a hypothetical context. Consequently, each of
Justice Scalia's proffered hypothetical conversations necessarily entailed
a specific context within which it had the meaning he claimed for it. But
as we showed, each of his hypothetical conversations would have a different meaning if transplanted to a different context. (This information
is summarized in Table 1.) Justice Scalia never explained why the context that implicitly underlay his interpretation was "ordinary" or
"normal," while other possible contexts were "extraordinary," "unreasonable," or "unheard-of."
KANSAS LAW REVIEW
Table 1-Conversations and Context
Case
Statutory
Conversation
Name
Text
"Do you use a
Smith
"uses... a
firearm"
cane?"
O'Gilvie
"on account of
personal
injuries"
"What damages can be
received on
account of
personal injuries in the
United
States?"
Holloway
"intent to
cause death
or serious
bodily
harm"
"I intend to go
to ... ."
[Vol. 52
Context
Meaning
1. Conversation about
disabilities,
2. Conversation about
stickball.
1. Conversation with
foreign lawyer who
wants to
know what
types of
damages
United
States allows.
2. Conversation with
client.
1. Conversation about
attending
sick friend's
funeral.
2. Conversation about
visiting great
aunt.
1. use for it
intended
purpose
2. use in
any way
1. compensatory and
punitive
damages
2. only
compensatory
damages
1. unconditional intent
2. conditional intent
Justice Scalia's choice of context could be either normative or descriptive. First, consider the normative possibility. The hypothetical
conversation approach would require an analogy between the context of
the hypothetical conversation and that of the statute. The two contexts
must be relevantly similar for the hypothetical conversation to be probative of statutory meaning. To make such an analogy, Justice Scalia must
identify some similarity or common thread that links the hypothetical
2004]
SLIGHTING CONTEXT
conversation to the statute. This requires a normative judgment that
some aspect of context is essential or primary to both the hypothetical
conversation and the statute.
This is precisely the analytical move that an ordinary usage method
rejects. Recall Wittgenstein's example of how we use the word
"game." 160 There may be family resemblances between the various activities that we call games. But any similarities are simply a product of
social usage, not any logically deduced relationship among the activities.
So in describing the word's ordinary usage, it is incorrect to argue that a
new activity should be called a game because a supposedly similar activity is so called. An ordinary usage approach rejects this shift from is to
ought.
To see how this point applies to statutory interpretation, again consider Smith, where the Court decided whether the exchange of a gun for
drugs constituted "use" of the gun during a drug crime. Justice Scalia
might say that the cane conversation is relevant to the statute because
both the cane conversation and the statute mention tools that perform
certain functions-the cane assists in walking, and the gun can serve as a
weapon. As both contexts involve tools, usage in one context may, by
analogy, be transplanted to the other context. Yet, one could argue that
the two contexts are different precisely because one is an ordinary conversation and the other is a statute. As discussed in Part II, ordinary
conversation relies on cooperation between listener and speaker in applying the correct word usages and context. Conversely, statutory
drafters try to anticipate strategic conduct by later users of their texts.
For example, why might a statutory drafter have written "use a firearm"
instead of more specific words such as "discharge," "brandish," or "fire"
a firearm? Perhaps because the broader word "use" included circumstances where the firearm was present and posed a potential threat, but
was not actively used as a weapon. If the more specific words were
used, the Smith defendant could say, "I didn't fire the gun, I just exchanged it for the drugs," even though the gun was an ever-present
threat. The word "use," it may have been thought, avoided this strategic
manipulation of the statute.
So we have reason to treat Justice Scalia's cane conversation and the
drug crime statute as involving similar contexts (i.e., both involve tools)
and different contexts (i.e., one is a conversation and the other is a stat160. See supra notes 19-23 and accompanying text.
KANSAS LAW REVIEW
[Vol. 52
ute). Choosing between these contexts decides the case. That choice,
however, requires resort to some normative standard that tells us which
aspects of context are more important than others. A descriptive enterprise, such as an ordinary conversation approach, cannot supply the
needed standard. Indeed, resort to a normative standard makes hypothesizing examples of ordinary conversation unnecessary. If a normative
standard can identify a word's ordinary usages, we ought to apply that
standard directly, instead of hypothesizing ordinary conversations.
Second, consider the empirical account of ordinary usage. Justice
Scalia may be labeling as ordinary the word usage that occurs most frequently in conversation. The hypothetical conversation, then, is offered
as empirical evidence that his preferred usage is in fact the most common. This approach suffers two problems. First, a single instance of a
given word usage in a hypothetical conversation is hardly proof that a
word usage occurs more than other possible usages. Indeed, given that
we have no cosmic tote board registering each instance of a word's various usages, this approach poses an insurmountable data problem. An
implicit recognition of this problem can be found in some Justices' resort to newspapers and other popular media to estimate the likelihood of
a word's usage. 161 This less-than-scientific method proves the point: we
have no good way to determine a usage's62 ordinariness as a function of
the number of instances of its actual use. 1
If the hypothetical conversation is not scientific proof of ordinariness, then it must appeal to a common denominator with the reader.
Perhaps Justice Scalia believes that by offering a hypothetical conversation that resonates with the reader, he can tap into our shared
knowledge-we know that a word is used in a certain way, but we have
no reasons that can explain why this is so. Usage simply is, without
needing reasons. But this creates a real difficulty for Justice Scalia, because those for whom his hypothetical conversation does not ring true
must simply take his word as to which usage is "ordinary." Leaving the
conclusion to faith, however, breaches the rule of law, which requires
161. See, e.g., Muscarello v. United States, 524 U.S. 125, 129-30 (1998) (deciding whether a
defendant who had a gun in his vehicle during a drug offense "carries a firearm," within the meaning of a federal criminal statute, by reviewing The Bible, Moby Dick, Robinson Crusoe, and
newspaper articles regarding use of the word "carry"); id. at 142-44 & nn.2-5 (Ginsburg, J., dissenting) (citing Biblical, literary, and newspaper excerpts to counter those of the Court).
162. In conversations over prior drafts of this Article, my colleague Val Ricks suggested that
opinion polls may be the only way to approximate this data.
2004]
SLIGHTING CONTEXT
that judges give reasons for their decisions.163 By pointing to a single
hypothetical conversation, Justice Scalia effectively says to the reader,
"Trust me. This is the ordinary way people use this word." If his usage
does not resonate with you, there is no way to respond other than, "No it
isn't." At that point, Justice Scalia's only response is, "Yes it is." We
are left with unarticulated intuition, having no grounds for further debate.
Justice Scalia himself has touted the importance of such rule of law
values. In Planned Parenthood of Southeastern Pennsylvania v. Casey,164 he criticized the Court's unprincipled adherence to the abortion
right first recognized in Roe v. Wade.165 The Court defended its decision
to retain Roe as a product of judicial reason: 'The inescapable fact is
that adjudication of substantive due process claims may call upon the
Court in interpreting the Constitution to exercise that same capacity
' 66
which by tradition courts always have exercised: reasonedjudgment."'
According to Justice Scalia, however, the majority's argument could not
meet its proffered standard. The Court describes Roe's methodology as
balancing the woman's interest in terminating a pregnancy against "the
interest of the State in the protection of potential life."'16 7 Justice Scalia
notes, however, that this constitutional calculus begs a crucial question:
whether "what the Court calls the fetus and what others call the unborn
child is a human life"?168 As even Roe conceded, if the fetus is a person
protected under the Constitution, there can be no abortion right. 69 Thus,
if the Roe and Casey decisions are to fulfill the requisites of the rule of
law, they must exercise reasoned judgment in answering whether a fetus
is a person.
163. As Professor Richard Fallon has discussed, the rule of law has many threads. See Richard
H. Fallon, Jr., "The Rule of Law" as a Concept in Constitutional Discourse, 97 COLUM. L. REv. 1,
2 (1997) (discussing the origins of the Rule of Law ideal). See also Margaret Jane Radin, Reconsidering the Rule of Law, 69 B.U. L. REv. 781, 781 (1989) (noting that "[a]lthough the Rule of Law
ideal is central to our legal tradition it is deeply contested"). Professor Fallon refers to the version of
the rule of law discussed above as "the Legal Process ideal type." See Fallon, supra, at 30 ("Legal
Process accounts maintain that a reasoned connection between recognized legal norms and sources
of authority and the outcome in particular cases often will satisfy the requirements of the Rule of
Law, even if the result is not determined by a clear rule or an original historical understanding."
(footnote omitted)).
164. 505 U.S. 833 (1992).
165. 410U.S. 113 (1973).
166. Casey, 505 U.S. at 849 (emphasis added).
167. Id. at 871 (emphasis added).
168. Id. at 982 (Scalia, J., dissenting).
169. Roe, 410 U.S. at 156-62.
KANSAS LAW REVIEW
[Vol. 52
For Justice Scalia, neither reasoned judgment, nor "the proper criteria of [constitutional] text and tradition," even arguably supported the
Court's decision that a fetus is not a person. 70 Indeed, he doubts that
the question is amenable to judicial resolution: "[t]here is of course no
way to determine that as a legal matter; it is in fact a value judgment.
Some societies have considered newborn children not yet human, or the
incompetent elderly no longer so. ' "1 7 If neither reason nor constitutional
law supported the Court's decision, the decision must rest on the majority's personal "value judgment."' 72 Thus, Casey was an instance of the
rule of men, not the rule of law. 173 To emphasize the Court's lawless170. Casey, 505 U.S. at 983 (Scalia, J., dissenting).
171. Id. at 982 (Scalia, J., dissenting) (emphasis added).
172. Id. at 982 (Scalia, J., dissenting). Justice Scalia has leveled this criticism elsewhere. For
example, in Michael H. v. GeraldD., 491 U.S. 110 (1989), he (writing for a plurality) criticized the
dissent's substantive due process analysis. That case involved the lawsuit of the purported natural
father seeking visitation with his purported child. When the child was born, the mother was married
to another man. Under California law, the husband was presumed to be the child's father, and only
the husband or wife could rebut that presumption. The purported biological father argued that the
presumption violated his substantive due process right to establish paternity. Justice Scalia rejected
the claim, arguing that United States law has no tradition protecting the paternity interest of the
father of a child born to another man's wife. Id. at 125 ("We have found nothing in the older
sources, nor in the older cases, addressing specifically the power of the natural father to assert
parental rights over a child born into a woman's existing marriage with another man."). Justice
Brennan dissented, arguing that Justice Scalia looked for an applicable tradition at an insufficient
level of generality. Id. at 839 (Brennan, J., dissenting) ("If we had looked to tradition with such
specificity in the past, many a decision would have reached a different result."). Instead, more
general legal traditions, such as those protecting the "family" or "parenthood," supported the father's claim. Id. at 141-47 (Brennan, J., dissenting). Justice Scalia rejected the dissent's attempt to
define tradition more broadly on rule of law grounds:
Because such general traditions provide such imprecise guidance, they permit judges to
dictate rather than discern the society's views. The need, if arbitrary decisionmaking is
to be avoided, to adopt the most specific tradition as the point of reference-or at least to
announce, as Justice Brennan declines to do, some other criterion for selecting among the
innumerable relevant traditions that could be consulted-is well enough exemplified by
the fact that in the present case Justice Brennan's opinion and Justice O'Connor's opinion, which disapproves this footnote, both appeal to tradition, but on the basis of the
tradition they select reach opposite results. Although assuredly having the virtue (if it be
that) of leaving judges free to decide as they think best when the unanticipated occurs, a
rule of law that binds neither by text nor by any particular, identifiable tradition is no
rule of law at all.
Id. at 127 n.6 (citation omitted).
Justice Scalia reached a similar conclusion in Employment Division v. Smith, 494 U.S. 872
(1990), where (writing for the Court) he rejected strict scrutiny for general criminal laws that incidentally burden religious exercise. An alternate rule urged on the Court would apply strict scrutiny
to those laws that burdened a practice "central" to a sect's religious beliefs. Id. at 887. Justice
Scalia rejected this test because judges have no standard, consistent with the rule of law, with which
to judge the centrality of religious beliefs: "What principle of law or logic can be brought to bear to
contradict a believer's assertion that a particular act is 'central' to his personal faith?" Id.
173. Id. at 984 (Scalia, J., dissenting) ("It is not reasoned judgment that supports the Court's
decision; only personal predilection.").
2004]
SLIGHTING CONTEXT
ness, Justice Scalia invoked Dred Scott v. Sandford,174quoting from Justice Benjamin Curtis' dissent:
[W]hen a strict interpretation of the Constitution, according to the fixed
rules which govern the interpretation of laws, is abandoned, and the
theoretical opinions of individuals are allowed to control its meaning,
we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the
Constitution
is, according to their own views of what it ought to
75
mean.
Justice Scalia's Casey dissent nicely dovetails with our discussion of
ordinary speech. At bottom, an ordinary speech argument asks the
reader to accept the writer's personal judgment-and nothing morethat the offered hypothetical conversation accurately represents ordinary
usage. Neither "reasoned judgment" nor any other legal argument enters
the picture. When reason runs out, to paraphrase Justice Curtis, we are
under the government of individual justices, who for the time being have
power to declare what a statute is, according to their own views of what
it ought to mean. In short, ordinary speech abandons the rule of law.
B. Ordinary Conversation?
Justice Scalia's use of ordinary conversation to establish ordinary
usage begs another important question--do the statutory texts discussed
above bear any resemblance to the way people speak? If not, what sense
does it make to analogize between ordinary speech and statutory text?
To consider this point, Table 2 compares each of the statutory texts with
a possible ordinary speech alternative:
174. 60 U.S. (19 How.) 393 (1856).
175. Casey, 505 U.S. at 984 (Scalia, J., dissenting) (quoting Dred Scott v. Sandford, 60 U.S. (19
How.) 393, 621 (1856) (Curtis, J., dissenting)) (emphasis added).
KANSAS LAW REVIEW
[Vol. 52
Table 2-Comparing Statutory Text and Ordinary Conversation
Statutory QuesOrdinary Speech
Case
Text
tion
Smith
"uses... a fire"Did you use a
"Did you fire the
arm"
firearm?"
gun?"
O'Gilvie
"on account of
"What damages
"How much
personal injucan I receive on
money can I get
ries"
account of my
for my car accipersonal injuries?" dent?"
Holloway
"intent to cause
"Did you intend to "Did you mean to
death or serious cause his death?"
kill him?," or "Did
bodily injury"
"Did you intend to you kill him on
cause him serious
purpose?"
bodily injury?"
"Did you mean to
hurt him?," or
"Did you hurt him
on purpose?"
Now, these examples of ordinary speech may resonate with you. Or,
perhaps you may think that ordinary speech looks different from the examples above. Even so, my guess is that your ordinary speech examples
are different from-some might say more colloquial than-the statutory
text. Either way, the point remains the same-statutory text often consists of word groupings unfamiliar to ordinary speech. People do not
ordinarily speak the way that legislators write.
That statutory texts bear little resemblance to ordinary speech should
not surprise us. It is common knowledge that the written and spoken
word are quite different. While conversation can make use of inflection,
pacing, and body language, the written word must largely stand alone,
76
using language and punctuation to get across the same information.
Consequently, we often read sentences that we would never hear a person speak.
176. See Richard A. Posner, What Has Modem Literary Theory to Offer Law?, 53 STAN. L.
REV. 195, 205 (2000) ("Common sense tells us that speech is a more reliable, in a sense more 'basic,' method of communication than witing because it is immediate, because it enables meaning to
be clarified by inflection and body language and by interrogating the speaker, and because the
speaker knows who his 'reader' (that is, listener) is and can fit his words to the listener's understanding."); Max Radin, Statutory Interpretation, 43 HARV. L. REV. 863, 874 (1930) ("Emphasis
will help us in ordinary speech, but except for such inferred emphasis as the general purpose of the
act will enable us to apply, no other stress on the words will be apparent in the printed page.").
2004]
SLIGHTING CONTEXT
As we discussed in Part fl.D, statutes are a further step removed
from ordinary speech, because the legislative drafter cannot rely on the
good faith, cooperative assumption that greases the wheels of ordinary
conversation. Instead, a legislative drafter tries to anticipate the strategic
games lawyers will play with the statute's text. While ordinary conversation assumes cooperative behavior, legislative drafting assumes
strategic behavior. While ordinary conversation assumes that a shared
context will fill the textual gaps, legislative drafters abhor such a textual
vacuum. The result is an attempt to say as much as possible in text, and
leave as little as possible to context, making statutory language cumbersome and archaic.
Of course, regardless of the drafter's proficiency, statutes will still
have gaps. Language is an imperfect medium, and the human imagination has its limits. Some ambiguity and vagueness are inevitable. The
question, then, is how judges should plug this remaining gap in interpreting statutes. For the reasons elaborated in this and the preceding section,
usage in ordinary conversation cannot play this role. The next section
explains why legislative history should do so.
C. Legislative History as Context and the Possibilityof Strategic
Purposivism
To interpret a statute, we must select the proper context in which to
read the statute's words. This brings us back, yet again, to the difference
between ordinary conversation and legal drafting we discussed in Part II.
Unlike the speaker in ordinary conversation, the legislative drafter assumes that her audience (mainly lawyers) will act strategically, selecting
the context that best suit their interests. Legislators try to leave as little
meaning to context as possible, at times creating word usages that have
no parallel in ordinary conversation. This pattern of anticipating and
responding to strategic behavior shapes the final text.
If the legislative process has its own assumptions and word usages,
the process itself should be the context within which we seek a statute's
meaning. The words emerge from a process that includes many actors
seeking to solve a problem. During that process, hearings and debates
are held, members of Congress are lobbied, information is exchanged,
compromises are reached, and all else that constitutes the American leg-
KANSAS LAW REVIEW
[Vol. 52
islative process occurs. 177 Also during that process, legislators and their
staff dwell upon statutory language and how it might be manipulated or
abused. These considerations further shape the text considered by Congress. It is within that context that a statute's words gained their
meaning. And as text and context are inseparable, the statute's text only
exists within that context. To hypothesize a different context, as with
Justice Scalia's hypothetical conversations, is to hypothesize a different
text.
If the legislative process is a statute's proper context, then legislative
history is probative evidence of that process. 178 Admittedly, all legislative history is not of equal probity. Even judges and commentators who
advocate use of legislative history concede that some material generated
during the legislative process may itself be strategic, of little value in
discerning a statute's meaning.179 For example, legislators or interest
groups who lost a battle in drafting text might seek a partial victory by
inserting legislative history that puts a favorable gloss on the text. Yet,
these writers also argue that careful review of the legislative record can
offer a context that sheds light on statutory meaning. 80 On this view,
statutory interpretation and scholarship should analyze and critique the
various sources of legislative history, assessing how well those sources
177. See Tiefer, supra note 112, at 262-64. See generally Nourse & Schacter, supra note 3
(discussing results of authors' survey of congressional staff regarding drafting of legislation).
178. To be clear, legislative history is not always clear and does not eliminate judicial discretion. As Dean John Landis wrote:
The so-called rules of interpretation are not rules that automatically reach results, but
ways of attuning the mind to a vision comparable to that possessed by the legislature.
The vision of itself rarely actually grasps the particular determinate, but the eye once
aligned in the same direction will more probably place a particular determinate in its appropriate spot.
John M. Landis, A Note on "Statutory Interpretation," 43 HARV. L. REV. 886, 892 (1930). Indeed,
for Dean Landis, rejecting legislative history was to give "[sitrong judges" "free rein" to indulge
their policy preferences regardless of the legislature's desires. Id. at 891. Thus, he would be quite
surprised by Justice Scalia's argument that legislative history is itself an invitation to unlimited
judicial discretion.
179. See, e.g., Bank One Chicago v. Midwest Bank & Trust Co., 516 U.S. 264, 277 (1996)
(Stevens, J., concurring) (acknowledging that examining the legislative history may have its imperfections, but stating that there is "no reason why conscientious judges should not feel free to
examine all public records that may shed light on the meaning of statute"); Stephen Breyer, On the
Use of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845, 862 (1992) ("No one
claims that history is always useful; only that it sometimes helps."); Tiefer, supra note 112, at 25171 (defending the Court's use of a subset of legislative history materials that the author calls institutional legislative history). See generally Vermeule, supra note 118 (describing how the Supreme
Court incorrectly applied legislative history in Holy Trinity Church v. United States).
180. Landis, supra note 178, at 889 ("Legislative history.., affords in many instances accurate
and compelling guides to legislative meaning.").
2004]
SLIGHTING CONTEXT
reflect the legislative context from which the statute emerged.18' We
should
better understand the legislative process, and not simply trash
82
it.'
The method suggested here is akin to what some call "purposivism.' ' 183 Purposivism asks, first, what was the evil or problem Congress
sought to address?, and second, what interpretation of the statute best
addresses that evil or problem? 1 4 To illustrate this approach, once again
consider the hypothetical city ordinance that prohibits operation of a
"vehicle" in a public park. In deciding whether a bicycle falls within the
meaning of the statute, one might ask why the city adopted the ordinance. If the city did so to protect the park from air and noise pollution,
banning bicycles would not further that purpose. If, however, the city
did so to protect pedestrian safety, banning bicycles might make sense.
To the extent that legislative history explains the evil at which a statute
is aimed, it can aid in this analysis.
Given the observation that legislative drafters anticipate strategic
manipulation of their work product, I suggest a variation on the purposive analysis: first, what strategic behavior did Congress try to
anticipate in drafting the relevant text?, and second, how does the statutory text address that anticipated strategic behavior? Call this variation
strategic purposivism. It would not replace purposivism, but rather supplement it by highlighting that one purpose behind statutory text might
be anticipation of strategic behavior.
181. See Tiefer, supra note 112, at 25 1-71 (defending the Court's use of a subset of legislative
history materials that the author calls institutional legislative history). Further, as Professors Victoria Nourse and Jane Schacter have urged, we should seek a realistic picture of how that process
operates. Nourse & Schacter, supra note 3, at 576.
182. See Landis, supra note 178, at 888 ("The records of legislative assemblies once opened and
read with a knowledge of legislative procedure often reveal the richest kind of evidence."). Indeed,
one author argues that recent political science writing on Congress finds that throughout the 1990s,
and especially after the 1994 congressional election, Congress' behavior has not tracked the public
choice, interest group account of legislative action. Tiefer, supra note 112, at 264-71.
183. ESKRIDGE ET AL., supra note 112, at 220; see also HENRY M. HART, JR. & ALBERT M.
SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 1375-80
(William N. Eskridge, Jr. & Philip Frickey eds., 1994) (discussing the importance of ascertaining
Congress's legislative intent); Alexander M. Bickel & Harry H. Wellington, Legislative Purpose
and the JudicialProcess: The Lincoln Mills Case, 71 HARV. L. REV. 1. 15-17 (1957) ("The task of
projection and imputation is often a formidable one of historical reconstruction. The atmosphere
which gave birth to a statute, the needs and agitation which evoked it, must be sympathetically
understood.").
184. Of course, this method must also address questions such as trade-offs between competing
purposes as well as the possibility that Congress chose to address a problem only to a certain extent.
But these are simply refinements of the basic approach.
KANSAS LAW REVIEW
[Vol. 52
Of course, purposivism has recognized pitfalls. 185 Two main criticisms focus on tradeoffs among purposes and the malleability of
purpose. First, consider tradeoffs among purposes. In drafting a statute,
a legislature may have balanced two or more purposes, none of which is
dominant throughout the statutory scheme. When applying purpose to a
specific interpretative question, courts have no guidance as to what
tradeoffs to make among those purposes. 186 For example, regarding the
vehicle ordinance, the city council may have balanced the need for public safety and noise reduction against the desire to allow adequate
recreational use of the park. How do these purposes apply to snowmobiles? Snowmobiles raise obvious safety and noise concerns, but they
are also a popular winter recreational vehicle. Further, during the winter, fewer people may use the park, thus reducing the safety and noise
threats of snowmobiles. Nothing in the ordinance and its purposes suggests how the council balanced these interests regarding snowmobiles.
Second, even when we identify a single purpose, the purpose may be
stated at such a level of generality that its application to a specific case is
185. Purposivism is an improvement over the search for specific legislative intent, which refers
to the attempt to identify the legislature's intention regarding a specific application of a statute. See
WILLIAM N. ESKRIDGE, JR. ET AL., LEGISLATION AND STATUTORY INTERPRETATION 214-18 (2000)
[hereinafter ESKRIDGE, LEGISLATION].
Specific legislative intent is faulted as both non-existent and
"undiscoverable in any real sense." Radin, supra note 176, at 870. On the existence of specific
legislative intent, Professor Max Radin explained that "[tihe chances that of several hundred men
each will have exactly the same determinate situations in mind as possible reductions of a given
[statute], are infinitesimally small." Id. At most, we could hope to "learn all that was in the mind of
the draftsman, or of a committee of half a dozen men who completely approved of every word." Id.
Yet, that says absolutely nothing about the intentions of the other legislators who merely register a
vote on the subject. As a body, the legislature has no intent. But see Landis, supra note 178, at 888
(stating that "[t]o insist that each individual legislator besides his aye vote must also have expressed
the meaning he attaches to the bill as a condition precedent to predicating an intent on the part of
the legislature, is to disregard the realities of legislative procedure"). On discoverability, Professor
Radin is equally doubtful:
Even if the contents of the minds of the legislature were uniform, we have no means of
knowing that content except by the external utterances or behavior of these hundreds of
men, and in almost every case the only external act is the extremely ambiguous one of
acquiescence, which may be motivated in literally hundreds of ways, and which by itself
indicates little or nothing of the pictures which the statutory descriptions imply.
Radin, supra note 176, at 870-71.
Purposivism tries to overcome the existence and discoverability problems. First, it seeks an
overall goal of a statute instead of an intent specific to the issue before the court. While specific
intent rarely exists, it is largely uncontroversial that legislation is motivated by some overarching
goal or goals. See ESKRIDGE, LEGISLATION, supra, at 221 (stating that "purposivism asks questions
about which there may have been greater consensus in the legislative deliberations"). Second, the
overall goal should be more easily discoverable than specific intent. Both social circumstances and
legislators' public statements should reveal the overarching goals at work. As discussed above,
however, this does not mean that purposivism is without its own problems.
186.
ESKRIDGE, LEGISLATION, supra note 185, at 221-22.
2004]
SLIGHTING CONTEXT
indeterminate. 187 For example, Title VII of the Civil Rights Act of 1964
proscribes employers from "discriminat[ing] against any individual"
based on (among other things) their race, 188 and some writers have argued that the purpose of this provision is to ensure equal employment
opportunities. 189 How does this purpose apply to an employer's racebased affirmative action program that reserves a specific number of positions for African American workers? On the one hand, the program
arguably gives African American workers a special advantage as they
have a number of positions where they do not have to compete against
the general applicant pool. On the other hand, given pre-existing race
discrimination in the workplace, the program arguably levels the playing
field by assuring an equal opportunity that did not previously exist. The
abstract purpose of "equal employment opportunity," without more, cannot answer our interpretive question.
Strategic purposivism avoids these pitfalls. First, it avoids the tradeoff problem because it is a meta-purpose that we might reasonably
attribute to a reasonable legislature to the exclusion of conflicting purposes. 190 Once we identify strategic behavior that the legislature sought
to avoid, we have no good reason to interpret the statute to allow that
behavior. And because we are identifying a specific form of strategic
behavior, we avoid purposivism's second pitfall-malleability. The
specific instance of strategic behavior identified under step one of strategic purposivism determines the appropriate interpretation under step
two.
To see how strategic purposivism might work, consider once again
Holloway v. United States,191 where the Court construed the word "intent" as used in the federal anti-carjacking statute. Recall that the issue
was whether the statute punished only unconditional intent-intent to
harm or kill regardless of the circumstances--or also punished condi-
187. Id. at 222 ("Often an attributed policy purpose is too general and malleable to yield interpretive closure in specific cases, because its application will depend heavily upon context and the
interpreter's perspective.").
188. 42 U.S.C. § 2000e-2(a)(l) (2000). This example is discussed further in ESKRIDGE, LEGISLATION, supra note 185, at 222, and ESKRIDGE, supra note 115, at 14-47.
189. See United Steelworkers of Am. v. Weber, 443 U.S. 193, 254 (1979) (Rehnquist, J., dissenting) (referring to a speech made by Senator Dirksen that emphasized not just "equality," but
"equality of opportunity" as the "spirit" of the Act).
190. See HART & SACKS, supra note 183 (discussing various judicial decisions and their treatments of legislative purpose).
191. 526 U.S. 1 (1999).
KANSAS LAW REVIEW
[Vol. 52
tional intent-intent to harm or kill if necessary to commit the crime.192
Justice Scalia took us on a journey through hypothetical conversations
about funerals and sick friends in choosing unconditional intent. 193 Conversely, the Court took a more straightforward approach-it asked what
the typical carjacking looks like, for that was Congress's target., 94 The
Court believed that Congress aimed at the paradigm carjacking scenario,
regularly reported on local television news and in local newspapers,
where a person with a gun accosts the driver of a car and says something
like, "Give me the car or I'll shoot."' 195
Strategic purposivism supports the Court's interpretation. The anticarjacking statute was amended in 1994. Prior to this amendment, the
statute criminalized carjackings only when the perpetrator "possess[ed] a
firearm."' 196 As the statute contained no element regarding an intent to
harm or kill, 197 it was undisputed that a carjacker committed a violation
by taking a car with a threat to harm the driver-the conditional intent
scenario.
The 1994 amendment did three things: (1) removed the "possessing
a firearm" element,198 (2) added the "with the intent to cause death or
serious bodily harm" element, 99 and (3) increased the maximum penalty
to death. 200 For a strategic purposivist, the question is whether a strategic gap in the original statute motivated these changes. The only
legislative history on these changes shows that two bill sponsors were
indeed troubled by such a strategic gap. 201 Specifically, one Senator
192. Id. at 3.
193. Id. at 14 (Scalia, J., dissenting).
194. Id. at 8 ("The carjacking statute essentially is aimed at providing a federal penalty for a
particular type of robbery.").
195. Id. at 9. The Court explained its interpretation as follows:
[Tihe statute as a whole reflects an intent to authorize federal prosecutions as a significant deterrent to a type of criminal activity that was a matter of national concern.
Because that purpose is better served by construing the statute to cover both the conditional and the unconditional species of wrongful intent, the entire statute is consistent
with a normal interpretation of the specific language that Congress chose. Indeed, petitioner's interpretation would exclude from the coverage of the statute most of the
conduct that Congress obviously intended to prohibit.
Id. (footnote and citation omitted).
196. Anti Car Theft Act of 1992, Pub. L. No. 102-519 § 101(a), 106 Stat. 3384 (1992).
197. Id.
198. Pub. L. No. 103-322 § 60003(a)(14), 108 Stat. 1959, 1970 (1994).
199. Id.
200. Id.
201. Another arguable purpose for the amendments is that defendants charged under the prior
statute had been raising double jeopardy challenges. U.S. CONST. amend. V ("nor shall any person
be subject for the same offense to be twice put in jeopardy of life or limb"). The Court has interpreted the Double Jeopardy Clause to have two components: first, the government may not conduct
20041
SLIGHTING CONTEXT
explained that by punishing only those carjackers who possessed a firearm, the statute missed those carjackers who, though not possessing a
firearm, endangered the victims' life or safety.2 °2 For example, a carjacker could threaten the driver with a knife, or a victim could be killed
when dragged by the car as the carjacker speeds off.20 3 The pre-1994
statute was too narrow, allowing carjackers to seize on the firearm possession element to avoid criminal liability. To solve this problem, the
1994 amendment substituted the intent element for the possession element. 2 04 Now, a perpetrator who intended to harm his victim, regardless
successive prosecutions for the same crime; second, the government may not impose more than one
punishment for the same crime. See Forrest G. Alogna, Note, Double Jeopardy,Acquittal Appeals,
and the Law-Fact Distinction, 86 CORNELL L. REv. 1131, 1137-53 (2001) (reviewing double jeopardy law). In many carjacking cases, the government charged defendants with both carjacking and
illegal possession of a firearm. See Mary C. Michenfelder, Note, The Federal Carjacking Statute:
To Be or Not to Be? An Analysis of the Propriety of 18 U.S.C. § 2119, 39 ST. LOUIS U. L.J. 1009,
1016-18 (1995) (discussing the double jeopardy challenges to the pre-1994 carjacking statute).
Because the pre-1994 carjacking statute required the possession of a firearm, these defendants argued that punishment for both firearm possession and carjacking was double punishment for the
same basic conduct. One district court has noted, however, that the amendment may not have been
needed, as defendants had been uniformly unsuccessful in their double jeopardy challenges. United
States v. Rodriguez, 871 F. Supp. 545, 547 n.2 (D.P.R. 1994). See also United States v. Jones, 34
F.3d 596 (8th Cir. 1994) (holding that multiple punishments for firearm possession and carjacking
do not constitute double jeopardy); United States v. Johnson, 32 F.3d 82 (4th Cir. 1994) (same);
United States v. Harris, 25 F.3d 1275 (5th Cir. 1994) (same); United States v. Mohammed, 27 F.3d
815 (2d Cir. 1994) (same); United States v. Johnson, 22 F.3d 106 (4th Cir. 1994) (same); United
States v. Singleton, 16 F.3d 1419 (5th Cir. 1994) (same). But, as one commentator has noted, defendants had been more successful at the district court level, suggesting that amendment would have
removed any doubt that remained in the district and circuit courts that had not addressed the issue.
Michenfelder, supra, at 1017-18. Regardless of which position is more persuasive, there is no
indication in any material surrounding the 1994 amendments that the double jeopardy question was
of congressional concern.
202. See generally 139 CONG. REC. S5821 (1993) (remarks of Sen. Lieberman).
203. See 139 CONG. REC. S15,301 (1993) (statement of Sen. Lieberman) ("The law must be
broadened to include all carjackings that result in death, not simply armed carjackings ....
If a
carjacking occurs and a death occurs as a result of that, does it really matter whether a firearm was
used, whether a knife was used, whether physical force was used... ?"); 139 CONG. REC. H6741
(1993) (Rep. Thurman complaining that "[the Anti Car Theft Act of 1992] requires the possession
of a firearm, and the criminal may not necessarily possess a gun-a lead pipe or tire-iron might be
sufficient"). As an example, Senator Lieberman described a reported carjacking where the victim
was dragged to her death, but the perpetrators did not possess a firearm. 139 CONG. REC. S5821
(1993).
204. Senator Lieberman's proposed bill, which addressed only the carjacking offense, was never
enacted into law. That bill, in its entirety, read:
Section 1. Carjacking. Section 2119 of title 18, United States Code, is amended (1)
by striking, "possessing a firearm as defined in section 921 of this title,"; and (2) in
paragraph (3) by striking "or imprisoned for any number of years of for [sic] life, or
both" and inserting "or punished by death or imprisoned for any term of years or for life,
or both."
KANSAS LAW REVIEW
[Vol. 52
of the weapon he wielded, fell within the statute. To further deter such
offenders, Congress increased the penalty to death.
Note how this legislative history tracks the strategic purposivism
proposed here. First, Congress addressed a strategic gap in the pre-1994
statute: the firearm possession element allowed some carjackers to escape criminal liability by arguing that they possessed a weapon other
than a firearm. Second, to preempt such strategic arguments, Congress
substituted the intent element for the firearm possession element. In
sum, Congress extended the carjacking prohibition to those who acted
without a firearm. In this strategic context, only the Court's conditional
intent interpretation fits. 205 Nothing in this context suggests that the
1994 amendment sought to drastically curtail the statute's reach by adding an unconditional intent requirement. Indeed, unconditional intent is
wholly at odds with this context-a complete non sequitur.
206
The Court's decision in Morse v. Republican Party of Virginia, a
voting rights case, provides another example of strategic purposivism.
The case involved the Virginia Republican Party's decision to select its
nominee for the United States Senate through local meetings and conventions attended by the state's registered voters. 207 To attend one of
these meetings, a voter had to register as a delegate with a local party
committee and pay a fee of either thirty-five or forty-five dollars.20 8 Virginia voters challenged the fee requirement under the Voting Rights Act
See 139 CONG. REC. S5821 (1993) (discussing S. 942, 103d Cong. (1993)). Rather, the 1994
amendments were part of the massive Violent Crime Control and Law Enforcement Act of 1994,
which was a 356-page public law covering a wide variety of criminal matters, from community
policing to truth in sentencing grants. See Pub. L. No. 103-322, § 60003(a)(14), 108 Stat. 1959,
1968-70 (1994) (amending 18 U.S.C. § 2119(3) (1992)).
205. An interpretation's "fit" with other material, such as surrounding text, context, or policy, is
often referred to as its "coherence." See ESKRIDGE, supra note 115, at 146-48 (discussing the argument that statutes should "evolve" with general legal principles and policies in order to maintain
their "integrity").
206. 517 U.S. 186 (1996). Another example of strategic purposivism appears in the Court's
recent decision upholding most provisions of the Bipartisan Campaign Reform Act of 2002
deliver(BCRA). McConnell v. F.E.C., 124 S.Ct. 619, 643 (2003) (Stevens, J., and O'Connor, J.,
ing opinion of the Court on Title's I and II of BCRA). There, the Court construed BCRA's ban on
certain donations by national, state, and local party committees. The question was whether the ban
applied to all such donations, or only donations made with so-called "soft money." (Soft money
means funds collected outside the federal campaign regulations.) While BCRA's legislative history
did not address the specific issue, the history did reveal Congress' general concern that politicians
were easily evading the campaign finance laws by channeling soft money to sympathetic groups. Id.
at 681-82. Indeed, the Court explained that BCRA's "exclusive focus [was] on abuses related to
soft'money." Id. at 682. To close this strategic loophole, the Court interpreted BCRA's partycommittee provision to ban only soft-money donations. Id. at 681-82.
207. Morse, 517 U.S. at 190.
208. Id.
2004]
SLIGHTING CONTEXT
Act of 1965,209 which requires preclearance from the United States
Department of Justice, through the Attorney General, for certain changes
in voting laws of "a State or political subdivision."2 10
It was
"undisputed" that imposition of poll taxes and other fees in a state-run
primary election required such preclearance. 2 1 The question was
whether a party-run nominating convention212 fell within the statute's
coverage of "a State or political subdivision.,
In an opinion joined by two other justices, 213 Justice Stephen Breyer
offered an analysis similar to strategic purposivism. He began his opinion by describing strategic behavior occurring at the time the statute was
drafted. States had repeatedly tried to circumvent the Fifteenth Amendment, which provides in relevant part: "The right of citizens of the
United States to vote shall not be denied or abridged by... any state on
account of race, color, or previous condition of servitude., 21 4 Justice
Breyer described how states tried to get around this provision by delegating election functions to political parties, who (they argued) were
outside the amendment's reach:
One historical fact makes it particularly difficult for me to accept
the statutory and constitutional arguments of appellees. In 1965, to
have read this Act as excluding all political party activity would have
opened a loophole in the statute the size of a mountain. And everybody
knew it. They knew that, despite the enactment of the Fourteenth and
Fifteenth Amendments, African-Americans had been systematically deprived of the right to vote in many places and for many years. They
knew, too, that States had tried to maintain that status quo through the
"all-white" primary-a tactic that tried to avoid the Fifteenth Amendment by permitting white voters alone to select the "all-white"
Democratic Party nominees, who were then virtually assured of victory
in the general election. Once the Supreme Court held unlawful the "allwhite" primary, the obvious next step would have been to substitute an
"all-white" preprimary Democratic Party nominating process for the
209. 42 U.S.C. § 1973c (2000).
210. Id.
211. Morse, 517 U.S. at 194.
212. See id. ("What is in dispute is whether the [statute] encompasses the Party's voting qualifications and procedure when its nominees are chosen at a convention.").
213. Justice John Paul Stevens announced the judgment of the Court in an opinion joined only
by Justice Ruth Bader Ginsburg. Morse, 517 U.S. at 190. Justice Breyer authored an opinion concurring in the judgment, joined by Justices Sandra Day O'Connor and David Souter. Id. at 235.
214. U.S. CONST. amend. XV, § I (emphasis added).
KANSAS LAW REVIEW
[Vol. 52
"all-white" primary. And, indeed, that is just what happened, though
the tactic failed because the Supreme Court held one version of it, the
Jaybird Association straw poll, unconstitutional. 1 5
Justice Breyer explained that the Congress that enacted the Voting
Rights Act "knew this history well,, ' 21 6 and knew of other similar attempts to circumvent the Fifteenth Amendment.2 17 He concluded
rhetorically:
How is it possible that a Congress, knowing this obvious history, would
have wanted to enact a "voting rights" law containing a major and obvious loophole that would allow such practices to continue, thereby
the very promise of elementary fairthreatening to destroy in practice
2 18
ness that the Act held out?
For Justice Breyer, then, Congress's obvious response to strategic behavior aimed at circumventing the Fifteenth Amendment was to adopt
language that covered both states and political parties. And he believed
that Congress had done so when it used the words "a State or political
subdivision." For, before passage of the Voting Rights Act of 1965, the
Court had held that a political party could fall within the meaning of
"State" as that term is used in the Fifteenth Amendment. 219 Aware of
this case law, Congress chose the very same term to achieve the very
same result--coverage of political parties when used to circumvent the
federal guarantee of voting rights. 220 This is strategic purposivism.
First, Justice Breyer identified prior strategic behavior-states had
sought to circumvent the Fifteenth Amendment by delegating election
matters to political parties. Second, he interpreted the statute in a manner that prevented such manipulation: "In light of history-that of Jim
Crow and that of the Act--one cannot understand Congress as having
intended to endorse any such evasion. '221
215. Morse, 517 U.S. at 235-36 (citations omitted).
216. Id.at 236.
217. Id.
218. Id.
219. Id. at 237 (citing Terry v. Adams, 345 U.S. 461 (1953), and Smith v. Allwright, 321 U.S.
649 (1944)).
220. Id. at 237-38.
221. Id. at 237.
20041
SLIGHTING CONTEXT
V. CONCLUSION
This Article begins from a simple observation about language: text
and context are inseparable in determining the meaning of specific instances of language use. Changing one or the other yields a different
instance of language use. From this observation, I have made two
claims. First, any attempt to interpret statutes by reference to ordinary
conversation is destined to fail for two important reasons. The first reason is that ordinary conversation and legal drafting assume different
dispositions in their listeners. In conversation we assume a cooperative
listener; in legal drafting, we assume a strategic reader. This expectation
yields word usages in each context that have little (if any) parallel in the
other.
The second reason ordinary conversation fails is that it cannot explain why a proffered example of ordinary conversation is probative of a
given statute's meaning. Again, context is the key. The problem is that
when one confronts ambiguous statutory language (as one does on the
cases worth considering), it is possible to construct multiple, conflicting
hypothetical conversations. Each hypothetical conversation assumes a
different context within which that conversation has meaning. The conversation approach breaks down because it gives us no basis on which to
decide which hypothetical conversation (and its attendant context) is
most appropriate to the statute. With no basis on which to rule, the
judge appealing to ordinary conversation is completely adrift, unmoored
to any legal basis for decision. Consequently, appeals to ordinary conversation violate the rule of law.
The second, derivative claim of this Article is that legislative history
must play some role in statutory interpretation.222 If context and text are
inseparable, and statutes are drafted in a unique context, it only makes
sense to bring that context to bear in interpreting statutes. To the extent
that legislative history provides probative evidence of that context, it
ought to be consulted. Of course, this argument is but a first step, defending some role for legislative history. The real work lies aheadidentifying and defining that role in light of an appropriate understanding of the legislative process.
222. See generally Paul E. McGreal, A ConstitutionalDefense of Legislative History in Statutory Interpretation(discussing Justice Scalia's arguments against legislative history in statutory
interpretation and how they ignore the significance of context) (unpublished manuscript on file with
author).