Jeremy Graboyes has published, “Now, Voyager: Deixis and the Temporal Pragmatics of Statutes,” in the George Mason Law Review.
An excerpt:
You come across a fortune cookie. The fortune inside reads: “The plans you now have are going to succeed.” Unsure when now is, you are left wondering which of your goals will be successful. There are three possibilities. First, now references some fixed point in the past—be it the moment the fortune was first conceived, printed, enclosed in its cookie, or shipped from the factory. All goals you had at that moment will be successful, but you have no guarantees as to goals made later in time, including goals at the time of reading the fortune. Second, now references the moment you first read your fortune. All goals you have at that moment will be successful, but you have no guarantees as to goals you may make later in time. Third, now references any moment you read your fortune. Whenever you read the fortune, no matter how many times you read it, you are guaranteed that all goals you have at that moment will be successful.
A legal journal would be a strange place, indeed, for an article discussing the hermeneutics of fortune cookies. But this interpretive problem has reared its head in the context of statutory interpretation, most recently in Carcieri v. Salazar, decided by the Supreme Court in 2009. This Comment analyzes the interpretive problem now presents in statutory language and gauges methods to resolve the ambiguity. After beginning with the word’s ordinary meaning and finding it to offer no real guidance, this Comment concludes that, absent clear indication of the word’s meaning from legislative history, only a purposive or pragmatic determination can provide a solution. What is significant about now—and what forms the crux of this Comment—is that the resolution of the signification of now relies on what we think a statute really is.
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