Adam Liptak reports in the New York Times that President Trump will announce a number of nominations to the lower federal courts, and that one of them is Justice Joan L. Larsen of the Michigan Supreme Court, who will be nominated to the United States Court of Appeals for the Sixth Circuit.
That caught my eye, because in June 2016, the Michigan Supreme Court became the first state supreme court in the country to expressly approve the use of corpus linguistics in statutory interpretation. In fact, it was as far as I know the first court of any kind to do so anywhere in the world. Although Associate Chief Justice Thomas Lee of the Utah Supreme Court has written several opinions that have drawn on corpus linguistics and that have argued forcefully in favor of using it, those were separate opinions that were not joined by any of the other justices.(See especially State v. Rasabout from 2015 and In re Baby E.Z. from 2011.) The Utah Supreme Court as a whole has been wary of corpus linguistics, but that wariness is apparently due in part to the fact that it has not heard a case in which a corpus analysis was argued by one of the parties, either as part of the briefing or by way of expert testimony or affidavits. However, Justice Lee has been going around the country giving talks about the use of corpus linguistics in legal interpretation, including one at the University of Michigan Law School, which probably had something to do with the Michigan Supreme Court’s endorsement of corpus analysis. (For commentary about the decision shortly after it was issued, see this post by Gordon Smith at Conglomerate Blog and this one by Mark Liberman at Language Log.)
So with Justice Larsen apparently heading to the Sixth Circuit (assuming she is confirmed), lawyers with statutory issues on appeal there might want to consider whether corpus analysis would help their case. Actually, lawyers litigating statutory issues anywhere should consider that, but the Sixth Circuit could become an especially promising venue.
By the way, in case you’re not aware: both Justice Larsen and Justice Lee are on President Trump’s list of potential SCOTUS nominees.
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This is as good a time as any to provide an update on developments in the world of law and corpus linguistics, as well as links to some useful resources.
- The second law & corpus linguistics conference was held at the Brigham Young University Law School in February, and it was great. The conference web page is here, but the papers are password protected. I’ve previously posted about my paper, which is available on SSRN. A draft of Jennifer Mascott’s paper, The Dictionary as a Specialized Corpus, is also available there. If you’re wondering what other papers were presented, you can look on the conference schedule to see who else presented papers, and contact them directly, or you can wait until December, when the papers from the conference (along with commentaries on them) will be published in a special issue of the BYU Law Review.
- Speaking of the BYU Law School: They’ve made a big commitment to promoting law and corpus linguistics, which is only natural given that BYU is the home of the Corpus of Contemporary American English and several other corpora, which collectively are the only game in town (or anywhere else) when it comes to free, publicly-available corpora. The law school offers a course in law and corpus linguistics, and several of their students have posted papers drawing on corpus linguistics on SSRN. The new dean at the law school, Gordon Smith is a big proponent of law and corpus linguistics; along with Carolina Nuñez, he organized the February conference. Hopefully the conference will continue to be an annual event.
- Justice Lee and Stephen Mouritsen recently posted a paper on SSRN, titled Judging Ordinary Meaning, which has been accepted for publication by the Yale Law Journal. Stephen Mouritsen was one of Justice Lee’s first law clerks, and before he went to law school, he got a Masters in corpus linguistics — in both cases at BYU. He gets the credit for turning Justice Lee on to corpus analysis, and he has written two law review articles about L&CL:
The Dictionary Is Not A Fortress: Definitional Fallacies and A Corpus-Based Approach to Plain Meaning, 2010 B.Y.U. L. Rev. 1915 (2010) (pdf).
Hard Cases and Hard Data: Assessing Corpus Linguistics As an Empirical Path to Plain Meaning, 13 Colum. Sci. & Tech. L. Rev. 156 (2012) (link).
- An ongoing project at BYU is the creation of COFEA: the Corpus of Founding-Era American English, which is planned to be a 100-million word corpus of texts from the period 1760-1799, a period that runs “from the start of King George III’s reign to the death of George Washington.” COFEA is intended to serve as a resource for researching linguistic issues relevant to investigating the original meaning of the Constitution, and it will include “letters, diaries, sermons, speeches, debates, newspapers, court opinions, government materials, legal documents, pamphlets, broadsides, non-fiction books, and fiction writing from the Founding Era.” COFEA is not yet up and running; they are grappling with the challenges of digitizing sources from the 18th century, which include such issues as unstandardized spelling and scanning-related OCR difficulties.
- The two quotes in the preceding paragraph come from an article that Justice Lee co-authored with James Phillips and Daniel Ortner, titled Corpus Linguistics & Original Public Meaning: A New Tool To Make Originalism More Empirical. The article is available on the Yale Law Journal’s online-only Forum. Also available at the same place is a commentary on that article, by Larry Solan: Can Corpus Linguistics Help Make Originalism Scientific? Larry also presented a paper at the BYU conference, which he co-authored with Tammy Gales. And in the course of googling up links for this post, I discovered a paper by Larry and Tammy that was just published by the International Journal of Legal Discourse: Finding ordinary meaning in law: The judge, the dictionary or the corpus? It can currently be downloaded for free, but I don’t know how long that will last. If you’re interested, act now and beat the crowds.
- Harvard Law Review published a casenote in 2016 about Justice Lee’s Rasabout opinion. More recently, Joseph Scott Miller posted a paper on SSRN dealing with the use of corpus linguistics in connection with the issue of indefiniteness as a basis for invalidating a patent: Reasonable Certainty & Corpus Linguistics: Judging Definiteness after Nautilus & Teva. The paper will be published in the Kansas Law Review. And Lee Strang has published How Big Data Can Increase Originalism’s Methodological Rigor: Using Corpus Linguistics to Reveal Original Language Conventions in the UC Davis Law Review.
- Larry Solum (not to be confused with Larry Solan) has a paper posted on SSRN that’s titled Originalist Methodology, which includes a section on corpus linguistics. [Update: The paper has been published in the University of Chicago Law Review (link).]
- Here is a video of a panel on corpus linguistics and legal interpretation from January of this year, featuring Justice Lee, Stephen Mouritsen, and Larry Solan. You might want to skip ahead to about 11:45, when the moderator’s remarks begin. And here is a video of a presentation by Justice Lee at Stanford Law School in the fall of 2015; his presentation is longer than the one on the first video, but unfortunately parts of it are inaudible.
- Later this month there will be a two-day conference at the University of Chicago on Historical Semantics and Legal Interpretation. The conference is a joint venture of the law school (in the person of Allison LaCroix) and the linguistics department (Jason Merchant). There will be presentations by law professors with and without linguistics background; linguistics professors, some of whom have done work relating to the law; and yours truly. Several of the presentations will deal with corpus linguistics; check out the schedule at the link above.
- Finally, I’m going to exercise Blogger’s Prerogative and link to the amicus brief I filed in the Supreme Court in FCC v. AT&T (opinion; SCOTUSblog), which was as far as I know the first brief anywhere to rely on corpus analysis. The brief was mentioned favorably during oral argument by Justice Ginsburg (transcript p. 37), and it most likely inspired this portion of the opinion:
“Personal” ordinarily refers to individuals. We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities. This is not to say that corporations do not have correspondence, influence, or tragedies of their own, only that we do not use the word “personal” to describe them.
Certainly, if the chief executive officer of a corporation approached the chief financial officer and said, “I have something personal to tell you,” we would not assume the CEO was about to discuss company business. Responding to a request for information, an individual might say, “that’s personal.” A company spokesman, when asked for information about the company, would not. In fact, we often use the word “personal” to mean precisely the opposite of business-related: We speak of personal expenses and business expenses, personal life and work life, personal opinion and a company’s view.
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That’s a pretty long list of stuff, and I’m sure it’s not complete. Apologies to anyone I haven’t mentioned, either by name or by link to a conference schedule.
And if you haven’t yet tried out any of the BYU corpora, here’s an easy link that will take you there, so now you have no excuse.