Responding further to Hessick on corpus linguistics (The first in a series)

Carissa Hessick has recently posted a near-final version of her forthcoming article Corpus Linguistics and the Criminal Law, which will appear in  a special issue of the B.Y.U. Law Review devoted to the papers that were presented at the law-and-corpus-linguistics conference at Brigham Young about a year ago. Like the draft that Hessick posted in September, the new version argues against the use of corpus linguistics in statutory interpretation. And although the article deals specifically with the use of corpus linguistics in criminal cases, Hessick acknowledges that some of her criticisms may apply more broadly.

I blogged about the previous draft, outlining some of my disagreements with Hessick’s position, and also offered some comments in response to her trio of posts about corpus linguistics at PrawfsBlawg (link, link, link). My disagreements apply equally to the revised version.

In this post, I’ll have some further things to say about Hessick’s portrayal of corpus linguistics as “a radical break from current interpretive theories.” The targets of that claim are Stephen Mouritsen and Utah Supreme Court Justice Lee. But as I’ll discuss, Mouritsen disputes Hessick’s reading of both his individual work and the work he and Lee have done together. (Justice Lee has so far maintained radio silence; perhaps he and Mouritsen will respond to Hessick in their forthcoming article in the Yale Law Journal [draft].) And in two or three posts that will follow this one, I’ll address some of the other aspects of Hessick’s argument.

HESSICK’S THESIS HASN’T CHANGED SIGNIFICANTLY between her original draft and the revised version. So the new draft, like the previous one, paints what I believe is an inaccurate picture of how corpus linguistics relates to statutory interpretation, and of the views and goals of corpus linguistics’s proponents.

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Voting rights and the language of causation

Last week the Supreme Court heard Husted v. A. Philip Randolph Institute, a big voting-rights case that—as I only recently learned—involves a statute raising a linguistic issue similar to the one I argued in my amicus brief in University of Texas Southwestern Medical Center v. Nassar. The statute in each case makes it illegal to take certain action if  the action is taken for a prohibited reason. In Husted, the statute prohibits states from removing people from the list of eligible voters “solely by reason of a failure to vote.” In Nassar, it prohibited employers from discriminating against any employee “because he has opposed any practice made an unlawful employment practice by [the statute], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the statute].”

The linguistic issue that I want to talk about is whether the boldfaced language in each statute has the effect of requiring “but for” causation. As the lawyers reading this will know, a “but for” cause is a cause without which (i.e., but for which) the result in question would not have occurred. In philosophy, but-for causes are referred to as “necessary causes,” and they are distinguished from “sufficient causes,” which are causes that would be sufficient to bring about the result, but that may co-occur with other sufficient causes.

My amicus brief in Nassar (discussed here and here) challenged the Supreme Court’s earlier holding in Gross v. FBL Financial Services that under a statute prohibiting discrimination “because of” an employee’s age, plaintiffs are required to prove that their age was a but-for cause of the employer’s action against them. The Court in Gross had relied mainly on dictionary definitions (which didn’t actually address the issue, but never mind that), as well as on cases in that had held but-for causation to be required by the various other expressions, including by reason of. My brief argued that Gross was incorrect and that its error should not be extended to the different statute that was at issue in Nassar. I knew that the odds were against my argument being accepted by a majority of the justices, but I figured that at a minimum, the dissenters would pick up on it. As things turned out, that was, shall we say, overoptimistic on my part. The brief went nowhere.

And now along comes Husted, which gives me an excuse opportunity to bring up this issue again.

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More on the relevance of frequency data: Responding to Steinberg

In a comment on one of Carissa Hessick’s posts about corpus linguistics at Prawfsblawg, Asher Steinberg expressed the view that relying on frequency data in deciding issues of ordinary meaning is misguided. (Steinberg blogs at The Narrowest Grounds, where he frequently writes intelligently about statutory interpretation.) Shortly after that, I posted Meaning in the framework of corpus linguistics here, in which I explained why I believe that frequency data can in fact be relevant in doing legal interpretation. And that post prompted a long comment by Steinberg, elaborating on his objection to using frequency data in legal interpretation.

Steinberg fears that if the courts were to draw on corpus linguistics in the way I that I advocate, statutory interpretation would “fall into fundamental error[.]”His point of departure is my analysis of the corpus data regarding the issue raised by Muscarello v. United States—whether driving somewhere with a gun in the trunk or glove compartment counts as carrying a firearm. (My conclusions are briefly summarized in the post Steinberg comments on; for the full analysis, see my forthcoming article A Lawyer’s Introduction to Meaning in the Framework of Corpus Linguistics (henceforth, A Lawyer’s Introduction)) Steinberg argues that frequency data—or at least the kind of frequency data that my analysis is based on— is inherently unreliable as evidence of ordinary meaning.

I beg to differ.

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Another judicial endorsement of corpus linguistics

On Facebook, Stephen Mouritsen writes, “Justice Christine Durham [of the Utah Supreme Court] finally comes around to corpus linguistics . . . and then promptly retires. (Oh well. A win’s a win.)”

Mouritsen is referring to this, from footnote 9 in Justice Durham’s concurrence in Fire Insurance Exchange v. Oltmanns, 2017 UT 81 [paragraph break added]:

Even though we place great trust in a judge’s discernment, a “judge’s confidence in her linguistic intuition may be misplaced. . . . Though the human language faculty is very good at assessing which meanings are linguistically permissible in a given context, human intuition is less successful in selecting the most common meaning or common understanding.” Stephen C. Mouritsen, Hard Cases and Hard Data: Assessing Corpus Linguistics as an Empirical Path to Plain Meaning, 13 Colum. Sci. & Tech. L. Rev. 156, 160–61 (2012) [hereinafter Mouritsen, Hard Cases]. When terms are to “be interpreted according to their ordinary meaning, they implicate a set of empirical questions, many of which are amenable to different types of linguistic analysis. . . . [I]n the field of corpus linguistics, scholars . . . determine . . . those meanings that are consistent with common usage,” or “the term’s ordinary or most frequent meaning” based on empirical data rather than personal intuition. Id. at 161.

These tools for empirical analysis are readily available to lawyers and should be used when appropriate. See, e.g., Rasabout, 2015 UT 72, ¶¶ 57–134, (Lee, J., concurring); In re Adoption of Baby E.Z., 2011 UT 38, ¶¶ 86–105, 266 P.3d 702 (Lee, A.C.J., concurring); Brief for the Project On Government Oversight et al. as Amici Curiae Supporting Petitioners, FCC v. AT&T, Inc., 562 U.S. 397 (2011) (No. 09-1279) [link – NG]; 2017 BYU Law Review Symposium, Law & Corpus Linguistics, 2017 B.Y.U. L. Rev. (forthcoming), http://lawcorpus.byu.edu/; Neal Goldfarb, Words, Meanings, Corpora: A Lawyer’s Introduction to Meaning in the Framework of Corpus Linguistics, 2017 B.Y.U. L. REV. (forthcoming), https://ssrn.com/abstract=2907485; Stephen C. Mouritsen, The Dictionary is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning, 2010 B.Y.U. L. REV. 1915; Mouritsen, Hard Cases, supra; Daniel Ortner, The Merciful Corpus: The Rule of Lenity, Ambiguity and Corpus Linguistics, 25 B.U. Pub. Int. L.J. 101 (2016); James C. Phillips, Daniel Ortner, & Thomas Lee, Corpus Linguistics & Original Public Meaning: A New Tool to Make Originalism More Empirical, 126 Yale L.J. Forum 20 (2016); Neal Goldfarb, LAWN LINGUISTICS, https://lawnlinguistics.com/ (last visited May 16, 2017) (discussing many contemporary issues regarding corpus linguistics and the law and providing links to various online tools and resources).

 

What is this thing called law and corpus linguistics?

I recently came across a new paper by Stephen Mouritsen: “Corpus Linguistics in Legal Interpretation—And Evolving Interpretive Framework” (pdf). Judging from the title, you might think that the paper is intended as an introduction to corpus linguistics as an interpretive tool, with the intended audience being lawyers, judges, and law professors. But if you thought that, you’d be wrong.

The paper traces the birth and development (so far) of law-and-corpus-linguistics as a field of practice and study. (Hmmm…“field of practice and study”? Doesn’t that sound a little overblown?) Because the paper was written for an audience that was already familiar with corpus linguistics, it doesn’t explain what corpus linguistics is. What it does instead is to give a fairly complete description of the work that has been done so far in this area of inquiry. (No, that’s worse.) It covers what’s happened in the courts, in the legal academy, and in the internet-o-sphere. And with more attention starting to be paid law-and-corpus-linguistics movement (oy), there has been a need for something that will help them get up to speed. This paper fills that need.

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Meaning in the framework of corpus linguistics

At the end of my previous post discussing Carissa Hessick’s paper “Corpus Linguistics and the Criminal Law,” I said that I would follow up with another post “making the affirmative case for the relevance of frequency data in determining ordinary meaning.” This is that post.

Given that subject, you might wonder why I’ve titled this post “Meaning in the framework of corpus linguistics.” The answer is that corpus linguistics has not only provided a methodology for investigating meaning, it has also generated important insights about word meaning. (That was the subject of the paper I presented at the BYU symposium in February, which will be published, along with the other papers from the symposium, in a special issue of the BYU Law Review.) I’ll draw on those insights when I talk about frequency analysis, and I thought it would be helpful to make them explicit.

THERE ARE A VARIETY OF DIFFERENT WAYS to think about word meanings. One of them is the way that I see as characteristic of how lawyers and judges tend to think: the meaning of a word is more or less equated with its dictionary definition, and then the definition is in effect read into the statute. If you’ve read a lot of cases, you’ll probably recognize the pattern:

The issue here is what “flood” means. Webster’s Dictionary defines “flood” to mean, “a great flow of water over what is usually dry land.” Therefore, the plaintiffs must show that the water in their basement resulted from a great flow of water over what is usually dry land.

Under this approach, the dictionary entry is treated as if what it defines is the concept flood rather than the word flood. The dictionary entry is being used as stating the conditions determining whether a particular instance of water on the ground qualifies as a flood. Considering the role that dictionaries have come to play in legal interpretation, it is no small irony that many lexicographers would say that the definitions they write aren’t intended to serve that purpose.

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Some comments on Hessick on corpus linguistics (updated)

UP UNTIL NOW, the use of corpus linguistics in legal interpretation has gotten almost entirely good press—probably because almost all the press it’s gotten has come from its advocates. That situation has now changed, though, with the posting on SSRN of a paper by UNC law professor Carissa Hessick, who was one of the participants at the BYU law-and-corpus-linguistics symposium this past February. (Hessick has blogged about her paper at Prawfsblawg, here and here.)

The paper, “Corpus Linguistics and the Criminal Law” (pdf), argues that corpus linguistics “is not an appropriate tool” for interpreting statutes. Although it deals specifically with using corpus linguistics in interpreting criminal statutes, and Hessick’s concerns may not be as strong as to other areas of the law, much of her criticism would apply across the board. In this post I am going to discuss some of the issues that the paper raises, and if you’ve followed this blog before, you won’t be surprised to find out that I disagree with Hessick’s conclusion.

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