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.
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.
Posted in "because", "by reason of", Alito, Gross v. FBL Fin. Servs., Husted v. A. Philip Randolph Institute, Kennedy, Law & linguistics, Roberts, Scalia, Statutory interpretation, Thomas, Univ. of Texas SW Medical Ctr. v. Nassar, Word meaning
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.