Plain Meaning and Hard Cases

Abstract

If the language of a statute is plain, how can interpreting that statute create a hard case?And if a case is hard, how can recourse to the statutory language help resolve the case?This essay will explore the apparent paradoxes raised by these questions.In his recent book, The Language of Judges, Lawrence Solan, a lawyer first trained as a linguist, uses linguistics to critique a variety of opinions in which he believes the Supreme Court has erroneously claimed that its decision was based on the plain meaning of a statute.After examining Solan's conclusions, this essay will use his book to show how linguists can provide very useful information as to whether a text is ambiguous.In doing so, we hope to go beyond Solan's intentionally narrow undertaking-using linguistics to critique judicial decisions after the fact for treating ambiguous texts as if they were plain-to experiment with ways that analysis of ambiguous texts by linguists could actually assist judges in identifying and choosing among possible interpretations in a principled and objective way that remains grounded in the textual language.It is probably safe to assume that most statutory interpretation cases before the Supreme Court present hard problems of textual analysis, especially where there has been a split among the circuit courts of appeal.

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