Over the past few years, there has been a surge of research in the new field of experimental jurisprudence. Work in this field uses systematic experimental studies to address the conceptual and theoretical problems associated with traditional work in jurisprudence. Experimental jurisprudence research has already explored a wide variety of different issues in the law, including everything from torts to criminal law to foundational questions in general jurisprudence.
This webpage is devoted to papers in experimental jurisprudence that are concerned specifically with interpretation theory. Thus, these papers address core questions in interpretation theory (concerning originalism, textualism, purposivism, etc.) but seek to address those questions using experimental studies of the sort one might find in psychology, cognitive science, or experimental philosophy.
(1) Almeida, Guilherme. (2022). A dual character theory of law.
What is the best way to describe a case that violates the text of a rule, but not its purpose? This paper suggests that it is to say that the rule was violated in a sense, but that if you stop to think about what it truly means to violate the rule, you would have to say it was not violated at all. Moreover, the author argues that this description has important implications for general jurisprudence.
(2) Almeida, Guilherme, Joshua Knobe, Noel Struchiner, and Ivar Hannikainen. Purposes in law and in life: An experimental investigation of purpose attribution. Canadian Journal of Law and Jurisprudence (forthcoming).
This paper brings together work on purposivist interpretation of laws with the larger psychological literature on how people attribute purposes. The key experimental finding is that people attribute purposes to laws based not on original intention or on morality but rather on present practice.
(3) Andrade, Priscila, Almeida, Guilherme, Hannikainen, Ivar, and Struchiner, Noel. What do we mean by precedent? Empirical evidence of ordinary usage. Forthcoming in: Piotr Bystranowski, Bartosz Janik, Maciej Próchnicki (eds.), Judicial Decision-Making: Integrating Empirical and Theoretical Perspectives.
How do people interpret precedents? Do they make loose analogies based on previous rulings? Or do they extract clear rules that are then prospectively applied to future cases falling under their purview? This paper shows that lay people tend to interpret precedents as loose analogies. However, unlike what one would expect from the jurisprudential literature, participants didn’t find robust evidence that people were less likely to feel constrained by precedents based on analogy when compared to rule-like precedents.
(4) Bystranowski, Piotr et al. Do Formalist Judges Abide By Their Abstract Principles? A Two-Country Study in Adjudication. International Journal for the Semiotics of Law – Revue internationale de Sémiotique juridique (2021).
These two papers describe experiments where participants were asked about the correct solution to cases involving either a vague legal standard protecting human dignity, or clear cut rules. The authors then manipulated whether the cases were described in abstract or concrete ways. The main finding is that the solution to cases involving both standards and rules is influenced by the concreteness in which the situation is described. Moreover, this pattern holds among lawyers both from a particularistic legal culture (Brazil) and from a very formalistic legal culture (Poland).
(5) Chen, Benjamin Minhao. Textualism As Fair Notice? Washington Law Review (forthcoming, 2022):
This paper argues that fair notice might not require legal rules to be given their ordinary meaning. A survey experiment reveals that the severity of punishment influences lay judgments of fair notice, and that judicial reliance on legislative purpose and history does not offend popular notions of fair notice except when the law precludes resort to such materials.
(6) Hannikainen, Ivar R., Kevin P. Tobia, Guilherme da FCF de Almeida, Noel Struchiner, Markus Kneer, Piotr Bystranowski, Vilius Dranseika et al. Coordination and Expertise Foster Legal Textualism: A Multi-Country Investigation. (2021)
Laypeople from 15 different countries vary widely in their preferences for either rules’ texts or their purposes in situations where these two elements point towards different results. On the other hand, lawyers consistently prefer the textually mandated result. This paper goes on to argue that this is partly driven by concern for coordination: when laypeople are incentivized to coordinate with others without the opportunity to exchange information, they also lean towards textualism.
(7) LaCosse, Jennifer and Quintanilla, Victor, Empathy Influences the Interpretation of Whether Others Have Violated Everyday Indeterminate Rules, Law and Human Behavior, Vol, 45, No. 4, 287-309 (2021).
This paper shows that those who empathize with people involved in justified instances of rule violation are less likely to think that they violated the rule.
(8) Macleod, James A. Finding Original Public Meaning. Ga. L. Rev. 56 (2021): 1.
This paper tests the original public meaning (OPM) of Title VII’s prohibition on discrimination “because of sex” as applied to LGBT employment discrimination. Then, using the Title VII experiments as an illustration, the paper highlights the ambiguities in textualists’ and originalists’ conceptions of OPM. It argues that without greater clarity about their conceptions of OPM—clarity that experiments can help facilitate—textualism and originalism will continue to underdetermine outcomes in most hard cases.
(9) Macleod, James A. Ordinary Causation: A Study in Experimental Statutory Interpretation. Ind. L.J. 94 (2019): 957.
This paper argues that experimental survey studies can provide probative evidence of ordinary meaning for purposes of statutory interpretation. The paper provides evidence that ordinary understanding of common causal phrases does not neatly track the U.S. Supreme Court’s simple “but-for” test of causation, despite the Court’s recent claims to the contrary. The paper discusses the implications of its findings for understanding the development of law in common-law systems, and for philosophical analyses of causation in tort and criminal law theory.
(10) Pirker, Benedikt and Skoczeń, Izabela. Pragmatic Inferences and Moral Factors in Treaty Interpretation—Applying Experimental Linguistics to International Law. German Law Journal, Vol. 23, Special Issue 3 (2022).
This work leverages recent developments in pragmatics to design experiments involving treaty interpretation. The authors use the data they collected to argue that interpreters are less confident in the truth of utterances that affirm elements of a legal rule that are pragmatically conveyed when compared to elements of it that are semantically conveyed. Moreover, they argue that confidence levels stay very high when the content being affirmed is morally desirable.
(11) Struchiner, Noel, Ivar Hannikainen, and Guilherme Almeida. An experimental guide to vehicles in the park. Judgment and Decision Making 15, no. 3 (2020).
This paper tests people’s intuitions about cases where the text and the purpose of the rule point towards competing solutions. Overall, the experiments find support for the influence of both text and purpose, and notices that some circumstances (e.g., asking about text and purpose alongside rule violation) favor textualist responses, while other circumstances (e.g., asking solely for participants’ rule violation judgments) favor purposivist responses.
(12) Struchiner, Noel, Hannikainen, Ivar, and Almeida, Guilherme. Legal decision-making and the abstract/concrete paradox. Cognition 205 (2020).
This paper tests whether the so-called ‘abstract/concrete paradox’ jeopardizes the consistency of judicial reasoning. In a series of experiments, both lay and professional judges sometimes reached opposite conclusions when reasoning about concrete cases versus the underlying issues formulated in abstract terms.
(13) Tobia, Kevin P. Testing ordinary meaning. Harv. L. Rev. 134 (2020): 726.
Establishing the ordinary meaning of statutes, constitutions, and contractual provisions is seen as an important task in contemporary jurisprudence. Often, lawyers and legal scholars use two methods to establish ordinary meaning: dictionary definitions and the analysis of corpus linguistics. Through a series of experiments, Tobia shows that laypeople, legal students, and judges who use these methods often end up with interpretations that diverge from ordinary meaning in systematic ways: those who rely on dictionary definitions are overly inclusive, while those relying on corpus linguistics are overly restrictive.
(14) Tobia, Kevin, and John Mikhail, Two Types of Empirical Textualism. Brook. L. Rev. 86 (2021): 461.
This paper tests laypeople’s understanding of Title VII’s prohibition on discrimination “because of” sex, race, and gender. It also tests the difference between laypeople’s application of Title VII’s “because of” language, on the one hand, and their application of an established legal criterion for causation (the “but-for” test) on the other.
(15) Tobia, Kevin, Brian G. Slocum, and Victoria Nourse. Statutory interpretation from the outside. Colum. L. Rev. 122 (2022): 213.
The authors test numerous traditional linguistic canons of interpretation to determine which canons track laypeople’s and law students’ understanding, and which do not. They also uncover possible new canons that track lay understanding but are not presently recognized as legal canons. Finally, the paper discusses evidence that ordinary interpretation of rules differs in various respects from ordinary interpretation of language in other settings
(16) Tobia, Kevin, Brian G. Slocum, and Victoria Nourse. Ordinary Meaning and Ordinary People. 171 Penn. L. Rev. (forthcoming 2023).
In this paper, the authors examine the assumption that ordinary people rely on ordinary meaning when interpreting legal documents. Across five experiments, the paper shows that ordinary people defer to specialists when interpreting terms that have a technical meaning – a tendency that is especially pronounced in the legal domain.