Confusing Circular and Definitive

 Over at PrawfsBlawg, Gerard Magliocca isn't allowing comment on his dubious claim that  "plain meaning arguments are largely circular." This is a basic argument which is thrown at every statute which doesn't have enough ambiguity to open it to interpretation from outside sources. It's also superficial and flawed.

Circular Reasoning: When you see an explanation of circular reasoning you usually see something like this:

 

 The characteristic most pointed out in circular reasoning is that both statements can be perfectly true, but not actually require the other. It's accurate as far as it goes, but it doesn't really explain the problem correctly.

 

What you actually have in circular reasoning are two sets of possibilities which overlap (sometimes one is a subset of the other). A more accurate depiction would be: 

There are many other reasons that we know Elvis is dead other than no one seeing him today. There are many other reasons you might not see Elvis other than him being dead (after all, there are indications he fought off a mummy in an East Texas retirement home). The sets do overlap and you can make both statements honestly, but the entirety of each set is larger than the assumption in the argument.

While it could get more nuanced, this is a good basic understanding of why the circular argument is problematic.

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Definitive: What Professor Magliocca doesn't like is that his learned, well researched, dare we say erudite argument is running into a stone wall. Either the other party is stating there is a plain meaning or the judge is finding so. The very first test is the plain meaning test. If the statute passes that one then it is immune from collateral attacks. In other words, the statute itself is definitive.

Arguing something is definitive is not making a circular argument. It is stating that the meaning is settled. Collateral attempts to get around the actual meaning are entirely irrelevant. When someone demands the irrelevant be considered in a settled matter, it is not circular to point out that it is settled. It is pointing out an a priori condition which precludes consideration of further, irrelevant evidence. There are not two or three differing sets that overlap making a circular argument. The model for the professor's situation looks like this:

Ignoring the wording used to label the circle, the black circle speaks for itself. It is a black circle. It is definitive. The other circles do not intersect in any way with it and they do not change the nature of the circle. Telling someone this truth does not constitute a circular argument. It is pointing out a definitive point which cannot be changed thus making the other three circles incidental at best.

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Contrary to what the professor states, a plain meaning does not require that both parties agree on the meaning for existence. It requires that there be a solid established understanding of the terms in the statute/contract. It is quite possible for philosophical differences to color arguments. In other words, if one were to believe that meanings can constantly be reinterpreted and there is no such thing as a definitive statute, then one would always say that the outside considerations should be allowed and even relied heavily upon. Thus, Professor Plum's article pointing out that black is the lack of any color, the fact that the artist meant it to be navy blue, and the fact that all the other circles are in the rainbow could be applied to find the circle is meant to be blue and therefore is. When it's necessary for your case it's amazing what you can come to truly believe.

Meanwhile, everyone else in the world is looking at the circle and saying it's a black circle on its face and needs no further interpretation. And they're right.

The actual battle in most statutes is whether there is ambiguity such that interpretation of the language is needed. If it is the party arguing for ambiguity gets to have its secondary sources considered. The reality here is that we've all seen courts rule things were plain on there face when they weren't and vice-versa. It's unfortunate, but true. I know that I actually included a sentence diagram in an appellate court petition once to show the court how its interpretation was badly out of kilter with the plain language of a statute. My brave foray back into 7th grade English did me no good. The unpublished rejection I got seemed to be confused about what the diagram was. I guess I can take solace in the knowledge that my 7th grade English teacher was better than that of whoever the appellate judge's intern was. Reality is always going to be that statutory interpretation is an inexact science, but that doesn't make a definitive statute ambiguous or the defense of it circular.