Legal philosophy
Tobia has defended "experimental jurisprudence," [15] a new approach to legal philosophy. [16] He proposes that legal philosophers should not limit themselves to their own intuitions. Instead,they can use empirical methods to assess whether their intuitions are shared among ordinary people. He has claimed that this approach can help legal philosophers disentangle legal concepts from related ordinary ones:
[L]aw impacts ordinary people, structuring their families, welfare, employment, freedoms, and responsibilities. Ordinary people also create law, contributing directly to the production of legal content as jurors deciding mixed questions or as statutory interpreters. Moreover, any legal expert (whether a legal philosopher or legal official) was once an ordinary person, and it is plausible that they bring some aspects of that ordinary experience and understanding to law. There are similar considerations about legal language: Law is clearly written and expressed with technical language, but it is not a foreign language to its ordinary citizens. Legal notions—cause, consent, reasonableness, intent—share names with similar notions that we use in ordinary life, whose legal meanings are not entirely distinct from their ordinary ones. Empirical study of ordinary notions and ordinary people can help disentangle the ordinary from the legal. [17]
He also studies legal-philosophical questions across languages and cultures and has found cross-cultural similarities in legal principles [18] and interpretation. [19]
In 2022, he published a survey of what hundreds of American law professors believe about legal theory debates. [20] The study found that most professors are on the left [21] and reject originalism; however, more professors were favorable towards textualism. [22]
Legal interpretation
Tobia has written broadly about textualism in statutory interpretation, [23] often with William Eskridge [24] and Victoria F. Nourse. [25] [26] [27] He has criticized some judicial uses of corpus linguistics, [28] [29] although he and Stefan Th. Gries defended a limited use, [30] and cautioned against recent judicial uses of large language models. [31] He has defended LGBTQ+ rights, especially in the context of employment discrimination. [32] [33] [34]
With Larry Gostin, Tobia defended the legality of federal transit mask requirements during the COVID-19 pandemic, arguing that the Public Health Service Act "plainly empowers CDC to require masks in the midst of a massive and sustained public health emergency" and "that CDC must have ample powers to act decisively and nimbly when the next health crisis arises—and it will." [35] They filed a amicus brief, signed by the American Public Health Association,the Association of American Medical Colleges,the Association of American Medical Colleges, the Infectious Diseases Society of America, and 231 experts in public health and the law, including six former CDC Directors, who led the nation’s response to all modern health emergencies, from SARS, MERS, and Zika to Ebola and Influenza H1N1. The critique centered on a judge's analysis of the linguistic meaning of the Public Health Service Act [36] and use of corpus linguistics. [37]
Tobia and Thomas Rex Lee submitted an amicus brief in Pulsifer v. United States, [38] a Supreme Court case concerning the First Step Act's relief of criminal defendants from mandatory minimum sentences for drug-related crimes. That brief drew on their journal article studying how Americans understood the statute's language. [39] Justice Neil Gorsuch, in dissent, cited their brief and its "study involving ordinary Americans." Pulsifer v. United States , 601U.S.__ (2024). This was reported as "the first time the Supreme Court has cited a survey of Americans to inform its interpretation of a statute’s ordinary meaning." [40]
In 2024, he submitted an amicus brief with linguists including James Pustejovsky in Bondi v. VanDerStok, [41] arguing that gun parts kits are subject to federal firearm regulations. Tobia argued that the Gun Control Act's definition of "firearm" includes kits of unassembled firearm parts that can be converted into functional firearms in a day's work. [42] The Supreme Court cited the brief in its linguistic analysis of "firearm," [43] and Justice Thomas's dissent accused the majority of "drawing heavily" from it. Bondi v. VanDerStok , 604U.S.__ (2025).
