Extended Abstract Out of the Ordinary: Common Use Arguments in Legislative Classification

Abstract

The common-law doctrine of stare decisis tasks the courts with comparing, sorting, and regulating new cases based on established standards of legality, a lineage of thought that seeks continuity between past and future rulings (Scalia 1997, 7). Regardless of this strong desire for stability and consistency, the frustrating reality is that ambiguity is often written—intentionally or accidentally—into legislation, contracts, and policy, questionable phrasing that can severely hinder a court’s ability to determine how new cases relate to previous findings. As the text of a legal document provides the normalized naming around which future cases are considered, statutory interpretation is needed to “determine an instrument’s meaning” (Baude and Sachs 2017, 1086) when subjects deviate too far from or challenge previously defined regulatory categories. This interpretation ensures that a statue is “not only internally consistent, but also compatible with previously enacted laws” (Scalia, 16). Different modalities, discourses, and theories can influence and guide judicial interpretation. Here, I will be focusing on the legal canons of “ordinary meaning,” “plain meaning,” and “common use,” flexible interpretive devices frequently evoked by scholars and judges to clarify ambiguous terminology and manage legislative classifications. Although each is unique and distinct, I argue that appeals to the plain, ordinary, and common can be unified under a singular knowledge organization (KO) theory motivated by a desire for atheoretical meaning and rooted in three unifying characteristics: obfuscation, hegemonic appeal, and autopoietic validation. Each of these attributes provides extremely valuable epistemic opportunities, yet their effective combination creates a mechanism that most readily substantiates, rather than dismantels, oppressive norms.