The Harvard Law Review Forum has just published Professor Anita S. Krishnakumar’s Response, Meta Rules for Ordinary Meaning, an essay that responds to Kevin Tobia’s recent HLR article, Testing Ordinary Meaning.

Professor Krishnakumar’s Response suggests that Tobia’s excellent study fails to grapple sufficiently with the question of who the relevant audience is for particular statutes (or kinds of statutes).  It also notes that the survey data produced by the study could be operationalized to encourage Congress and/or the courts to establish certain meta-rules for ordinary meaning analysis, such as (1) specifying the relevant statutory audience;  (2) specifying whether a specific statute (or kind of statute) should be interpreted in light of its prototypical versus its expansivist, legalist meaning; or (3) using survey data as prima facie evidence of statutory ambiguity.