12 - Surveys and Experiments in Statutory Interpretation

Summary

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