Anuj C. Desai (University of Wisconsin Law School) has posted Textualism Step Zero: Who is the Reader of Statutory Text?* on SSRN. Here is the abstract:
Textualists argue that judges should interpret statutes based on how a reasonable reader would understand the statutory text, not on the legislature’s subjective intent. But who is that reasonable reader? The answer matters: the reader’s identity should properly determine the available interpretive tools an interpreter may use. This Article introduces the concept of Textualism Step Zero-the threshold determination of who the textualist’s reasonable reader is. While textualists often invoke the ordinary person as reader, many staple interpretive doctrines implicitly assume the reader is a lawyer. I use as examples four such doctrines: the statutory definition doctrine, the temporal principle, the in pari materia doctrine, and the common law rule. These lawyerly doctrines are widely used in appellate interpretation, suggesting that the objective reader in most such disputes is a lawyer, not a layperson. Recognizing the need for this threshold determination clarifies that the fair-notice justification for textualists’ invocation of ordinary meaning depends on the ordinary person having a lawyer. I conclude by reflecting on the tension between textualism’s fair-notice ideal and the reality that legal interpretation in appellate disputes inevitably requires lawyerly expertise. Even if a lawyer is the objective reader for the statutory text in most appellate disputes, there may be good reasons not to abandon the ideal of the ordinary person as objective reader.
Important and highly recommended.
For a discussion of these issues reaching somewhat different conclusions without using the “step zero” nomenclature, see Textualism and Pragmatics.