It is a persistent theme in statutory interpretation theory—one shared by textualists, purposivists, and intentionalists alike—that a statutory term must have the same meaning from case to case and from litigant to litigant. The word “knowingly” in the same statute cannot mean one thing as applied to Sally and another as to Jim. To hold otherwise, courts and scholars have agreed, would violate fundamental principles of fairness and stability and upend the rule of law. Yet in a provocative and compelling new article, Can a Statute Have More Than One Meaning?, Ryan Doerfler makes a convincing case for rethinking this conventional view and contemplating just such variability of meaning.
Like all of Doerfler’s work, the article is incredibly smart and forces one to think about statutory interpretation in a fresh and unorthodox manner. Building on the linguistic observation that speakers can and often do communicate different things to different audiences using the same words or written text, the article argues that there is no reason to assume that Congress does not do the same—and several reasons to assume that it does.
Doerfler begins by using examples of familiar real world speech and written text to make the point that, linguistically, it is quite common for speakers and authors to communicate different things to different audiences using the same words. In so doing, Doerfler draws from linguistic theory and concepts such as “indexicals”1 but manages to do so in a manner that is accessible to non-linguists. The article then turns to making the case that Congress regularly employs terms—e.g., gradable adjectives such as “dangerous,” “serious,” or “significant”—that acquire meaning only in context, and argues that it makes sense to suppose that Congress would want such context-sensitive language to be interpreted differently across importantly differing contexts.
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