Hypothetical examples are a pervasive feature of legal discourse in the United States, my home jurisdiction. Law professors base class discussion on questions about hypothetical scenarios. Examinations, in law school and for licensing purposes, ask test-takers to read descriptions of imagined occurrences and analyse the legal implications of the events described. Advocates and judges use hypothetical examples to explain and justify rules and describe the limits of their application. But unlike some related legal discourse practices, such as the case method and analogical reasoning, the legal use of hypothetical examples has not been systematically studied.

This chapter examines the use of one type of hypothetical example by justices of the US Supreme Court in three recent terms. The chapter focuses on the justices’ use of hypothetical utterances – invented ‘samples’ of language use – in the service of arguments about the ordinary meaning or original understanding of statutory or constitutional language. Ordinary-meaning analysis has received significant recent scholarly attention (e.g., Slocum 2015), and some of the rhetorical techniques associated with such arguments, especially judges’ reliance on dictionary definitions, have also been discussed and criticised at length. This chapter shows that judges making ordinary-meaning arguments seem to support them with language-use hypotheticals just about as often as with dictionaries. If judges’ use of dictionaries deserves attention, then so might their use of language-use hypotheticals.

When judges and justices support their arguments using hypothetical scenarios or examples, including language-use examples, they are not just offering premises for the conclusions reached in particular cases, but also providing their readers with examples of acceptable argument forms. Judicial opinions function as records of decision and as how-to guides for lawyers and judges. Because of the outsize influence of the US Supreme Court on US legal education and practice, Supreme Court justices’ explanatory practices are especially likely to serve as models in this way. The focus on Supreme Court opinions in this chapter is, then, not motivated solely by those opinions’ status as legal authority, but just as much by the opinions’ institutionalisation as discourse models in the US legal sphere.

The pages that follow briefly review some recent work on the rise of ordinary- meaning analysis and the use of dictionaries to support such arguments.