Coming soon in the Brigham Young University Law Review: “The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning,” by Stephen Mouritsen.
Mouritsen, who is currently clerking on the Utah Supreme Court, has an MA in linguistics from BYU, with an emphasis on corpus linguistics. He studied under Mark Davies, who compiled the Corpus of Contemporary American English and the Corpus of Historical English. The appearance of his article at a time when blogospheric attention is being paid to the legal uses of corpus analysis (e.g., on at The Atlantic and on Language Log) is a nice bit of serendipity.
Mouritsen’s article focuses on Muscarello v. United States, where the Supreme court considered whether driving around with a gun in the trunk or glove compartment counts as “carrying” a firearm. The Court in Muscarello held (by a vote of 5–4) that it does.
The majority opinion (by Justice Breyer) argued that this conclusion was supported by what it viewed as the “primary” meaning of carry:
Consider first the word’s primary meaning. The Oxford English Dictionary gives as its first definition “convey, originally by cart or wagon, hence in any vehicle, by ship, on horseback, etc.” 2 Oxford English Dictionary 919 (2d ed. 1989); see also Webster’s Third New International Dictionary 343 (1986) (first definition: “move while supporting (as in a vehicle or in one’s hands or arms)”); Random House Dictionary of the English Language Unabridged 319 (2d ed. 1987) (first definition: “to take or support from one place to another; convey; transport”).
…
…[T]o make certain that there is no special ordinary English restriction (unmentioned in dictionaries) upon the use of “carry” in respect to guns, we have surveyed modern press usage, albeit crudely, by searching computerized newspaper data bases—both the New York Times data base in Lexis/Nexis, and the “US News” data base in Westlaw. We looked for sentences in which the words “carry,” “vehicle,” and “weapon” (or variations thereof) all appear. We found thousands of such sentences, and random sampling suggests that many, perhaps more than one-third, are sentences used to convey the meaning at issue here, i. e., the carrying of guns in a car.
Breyer also quoted passages from the Bible, Robinson Crusoe, and Moby Dick in which carry was used in the convey-by-vehicle sense.
Justice Ginsberg dissented, and offered quotes of her own using carry in the move-while-supporting sense, which she pointed to in support of the contention that the case couldn’t be resolved on the basis of word meaning alone.
Academic legal commentary has not treated the Muscarello decision kindly. Larry Solan likened the debate between the majority and the dissent to a food fight. Adrian Vermeule complained that the dueling opinions represented “[t]he reductio ad nauseam of the search for ordinary meaning” More recently, Ethan Leib and Michael Serota said “The textual analysis on display in Muscarello veers toward the absurd[.]” And (judge) Frank Easterbook offered this:
Finding definitions outside of dictionaries is even more risky, a point that the Justices missed when turning to newspapers and biblical quotations in a vain effort to cabin the meaning of the word “possess.”[*] See Muscarello v. United States, 524 U.S. 125, 129 (1998). The Justices missed the point that the context of a word depends on the linguistic community of addressees and not the full range of how a word ever has been used. Dictionaries are not better just because their etymology sections now can be researched online!
[*Possess, carry, whatever.]
Mouritsen, too, criticizes Breyer’s opinion on several grounds, but they’re different from those above. First, he faults Breyer’s dictionary skills. Breyer found the convey-by-vehicle sense of carry to be primary because it was the first definition listed in several dictionaries, including the Oxford English Dictionary and Webster’s Third. Mouritsen points out that OED and W3 list senses chronologically, in order of their earliest attested appearance in English—not based on any determination that those senses are “primary.”
Second, Mouritsen also criticizes Breyer’s electronic survey of actual usage, but in a way that differs from previous criticisms. Unlike some of Muscarello’s critics, Mouritsen has no problem with investigating meaning via database searches of usage, which is to say that he has no problem with investigating meaning via corpus techniques. Rather, he argues convincingly that Breyer structured his search the wrong way.
Recall how Breyer described his methodology: “We looked for sentences in which the words ‘carry,’ ‘vehicle’ and ‘weapon’ (or variations thereof) all appear.” Here’s what Mouritsen says:
The majority has not simply asserted that [convey-by-vehicle] is a linguistically permissible reading of carry. Rather they have claimed that [convey-by-vehicle] is the “ordinary” and “primary” meaning of carry, while [move-while supporting] carry is a “different, rather special” meaning. The entire case turns on whether carry ordinarily means in a vehicle. Thus, when Justice Breyer conducts his search for sentences containing the words carry, weapon, and vehicle, he is simply phrasing his question in the form of his desired answer.
The correct methodology, Mouritsen says, is not simply to look at the frequency of carry firearms in the sense of convey-by-vehicle, but to compare that frequency with the frequency of the move-while-supporting sense. Mouritsen conducted a corpus analysis using that methodology, and he found that examples of move-while-supporting outnumbered examples of convey-by-vehicle more than 5 to 1.