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56 Ga. L. Rev. 1 (2021-2022)

handle is hein.journals/geolr56 and id is 1 raw text is: FINDING ORIGINAL PUBLIC MEANING
James A. Macleod*
Textualists seek to interpret statutes consistent with their
original public meaning (OPM). To find it, they ask an
avowedly empirical question: how would ordinary readers have
understood the statute's terms at the time of their enactment?
But as the Supreme Court's decision in Bostock v. Clayton
County highlights, merely asking an empirical question doesn't
preclude interpretive controversy. In considering how Title VII
applies to LGBT people, the Bostock majority and dissents
vehemently disagreed over the statute's bar on discrimination
because of sex-each side claiming that OPM clearly
supported its interpretation. So who, if anyone, was right? And
how can textualists' supposedly commonsense OPM inquiry
yield such divergent conclusions?
This Article introduces a new applied-meaning-experiment
method to answer those questions and develop the theory of
textualism. The method asks ordinary readers to apply the
relevant statutory language in context, under experimental
conditions that minimize the effect of potential biases or
differences between enactment-era and present-day usage. For
Bostock, the applied-meaning-experiment method reveals that
the majority was probably right: textualists' ordinary reader
at the time of Title VII's enactment would most likely have
understood it to bar LGBT discrimination. The insights from
* Assistant Professor of Law, Brooklyn Law School. For helpful feedback, thank you to
Mitch Berman, Anya Bernstein, Jessica Bulman-Pozen, Guy Uriel-Charles, Anuj Desai,
Mihailis Diamantis, Benjamin Eidelson, William Eskridge, Ellen Katz, Josh Knobe, Anita
Krishnakumar, Guha Krishnamurthi, Brian Leiter, Kate Levine, David Noll, Samuel
Rickless, Scott Shapiro, Jocelyn Simonson, Brian Slocum, Lawrence Solan, Roseanna
Sommers, Glen Staszewski, Kevin Tobia, Maggie Wittlin, and participants in the University
of Chicago Law School's New Frontiers in Experimental Jurisprudence Conference, Iowa Law
School's Experimental Jurisprudence Seminar, the Michigan Law School Junior Scholars
Conference, the Yale Law School Legislation Roundtable, the AALS New Voices in
Legislation Panel, the Richmond Law School Junior Faculty Forum, and the SEALS Annual
Call-for-Papers Award Panel. For excellent editing, I thank the Georgia Law Review. The
Brooklyn Law School Faculty Fund provided financial support.


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