A frequent maxim of statutory interpretation is the so-called “plain meaning” rule — that judges should consider legislative history, statutory purpose, the statute’s title and whatever else, if and only if the text’s meaning is unclear. When the text is clear or plain, by contrast, you begin and end with the text.

Now I am a big believer in statutory text, so for a long time I have accepted this kind of thing pretty uncritically, but I think it turns out to have a puzzling structure once you think about it. Why should so much hinge on whether the text is “plain” or not? Why not have analogous rules of law for plain texts and for less plain ones?

Ryan Doerfler and I now have an article reconstructing and critiquing this use of “plain” meaning, called The (Not So) Plain Meaning Rule, out in the University of Chicago Law Review.

Here is the introduction:

Many tenets of statutory interpretation take a peculiar form. They allow consideration of outside information—legislative history, practical consequences, the statute’s title, etc.—but only if the statute’s text is unclear or ambiguous. These tenets are often expressed as a variation of the “plain meaning rule.” If the text’s meaning is “plain,” the other information can’t be considered. If it isn’t plain, the information comes in.

On its surface, the rule has an intuitive appeal. It seems like a safe intermediate position between strict textualism and some form of all-things-considered eclecticism or pragmatism. But if we poke below the surface, we ought to see that the basic structure of the plain meaning rule is quite puzzling. In our normal lives, in most contexts under the rules of evidence, and elsewhere, information is either useful or not. Information that is relevant shouldn’t normally become irrelevant just because the text is clear. And vice versa, irrelevant information shouldn’t become useful just because the text is less than clear.

This puzzling structure—“consider only in case of ambiguity”—deserves investigation. In this Article, we first explain the puzzle more formally, and then begin that investigation. It turns out that we can sketch some conditions under which this puzzling structure could be justified, for certain kinds of evidence. But nobody has shown that the plain meaning rule in fact meets these conditions, and we rather doubt that they could justify the plain meaning rule across the board. More importantly, we suspect that most interpreters have never even asked themselves the question.

Note that we do not take a position on whether one ought to be a textualist or an intentionalist or something else in the first place. That is of course “the big debate” in statutory interpretation. Similarly, we take no position here on the correct theory of statutory “meaning.” This is not to deny that there are right answers to these questions. But the plain meaning rule attempts to transcend those debates, and our criticisms of it do, too.

Textualists who think they have good reasons to ignore legislative history or the like shouldn’t automatically cave when the statute is ambiguous. Intentionalists who insist that legislative history is relevant shouldn’t automatically discard it when the text by itself seems clear. The plain meaning rule asks both sides to surrender the courage of their convictions. That surrender has not been justified, and perhaps cannot be.

We go on to sketch out at least six possible justifications for the plain-meaning rule in some possible circumstances, although we think it unlikely that any of them actually supports an across-the-board plain-meaning rule. Anyway, if you liked Judge Brett M. Kavanaugh’s piece last year on “Fixing Statutory Interpretation,” you will find some more food for thought here.

Here’s the whole thing.