Workshop on Hannah Walser’s “Interpretive Facts: Textualism, Empiricism, and the Law-Fact Divide”
Hannah Walser, Interpretive Facts: Textualism, Empiricism, and the Law-Fact Divide.
Solum’s Download of the Week for May 17, 2025. Available on SSRN.
This is a synthetic academic workshop generated using enTalkenator (a variation of the Workshop template, using Claude 3.7 Sonnet).
Abstract: “This Article offers the first systematic examination of where empirical linguistic evidence should fit in the federal court system's division of labor based on law and fact. I begin by identifying "interpretive facts": generalized empirical evidence about how a particular word or phrase has been used by a population of speakers, understood by a population of listeners, or both. Thanks to technological advances in corpus linguistics permitting the quantitative analysis of large numbers of texts, as well as methodological shifts that frame ordinary meaning as an empirical question, such facts are increasingly prominent in statutory and constitutional interpretation cases. I explain the complications that interpretive facts create for two key aspects of the law-fact division of labor: the default expectation that questions of fact be submitted to a jury, and the more deferential standard of appellate review that applies to a trial court's findings of fact. If courts continue to rely on interpretive facts to interpret statutes and constitutional provisions, I argue that they should avoid procedural incoherence by drawing on techniques developed in two other contexts: contract and patent law. Linguists offering interpretive fact evidence should present their arguments to a jury or a judge acting as fact-finder, as in contract cases; findings of interpretive fact should be reviewed for clear error by appellate courts, as in patent claim construction cases. In closing, I situate interpretive facts in the context of scholarly conversations about the increasingly dispositive role of historical facts in the Supreme Court's jurisprudence.”