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).