Ordinary Meaning as Last Resort
I appreciate this opportunity to guest blog on the Volokh Conspiracy about my latest article, posted on SSRN a few weeks ago, entitled Ordinary Meaning as Last Resort: The Meaning of “Undue Hardship” in Title VII. This is the first of two posts and will focus on the first half of the article, where I clarify textualist doctrine and refine textualist methodology. Tomorrow’s post will focus on applying this clarification and refinement to a pending U.S. Supreme Court case—Groff v. DeJoy—to show that most everyone has missed the meaning of “undue hardship” in Title VII of the 1964 Civil Rights Act.
The Problem with Ordinary Meaning on Steroids
The presumption of ordinary meaning may be textualism’s most fundamental principle. It is nearly two centuries old. Professor Bill Eskridge refers to “the primacy of the ordinary meaning rule” and argues that ordinary meaning is the “linchpin of statutory interpretation.” Or as Justice Kavanaugh put it, “follow[ing] ordinary meaning” is “Statutory Interpretation 101.” Cases applying the doctrine usually present determining the ordinary meaning of a statutory term as the first step—and often the last step—of interpretation.
But a too robust presumption creates tension with a counter presumption of textualism: “when Congress employs a term of art, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken.” Such terms of art can come from science, business, other industry, or most commonly, the law. On t
Article from Reason.com
