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. (Part 2 is here.)

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.

Hessick portrays corpus linguistics as a self-contained, maximalist theory of statutory interpretation, in which frequency analysis displaces all other interpretive inputs and factors, including judges’ intuitions about meaning. In Hessick’s words, corpus linguistics “reframes the ‘plain’ or ‘ordinary’ meaning inquiry,” thereby “render[ing] statutory interpretation essentially unrecognizable.” To be sure, Hessick offers some caveats. For example, she says that Brian Slocum and his co-author are more modest in their claims for corpus linguistics than are Lee and Mouritsen, but the overall impression I get from the article is that in criticizing corpus linguistics, Hessick paints with a broad brush.

Hessick’s alarmist description of corpus linguistics is especially unfortunate considering that there is no mention of the comments by proponents of corpus linguistics on Hessick’s earlier draft, which dispute Hessick’s characterizations of their views. For example, Mouritsen’s comments repeatedly  make it clear that he doesn’t think that statutory interpretation should be reduced to corpus analysis, without any consideration of other factors. In a comment on Hessick’s first PrawfsBlawg post, he says, “I don’t advocate (and I don’t think anyone in the pro-corpus camp advocates) foreclosing consideration of other evidence of meaning simply because the corpus data suggests a particular answer.” And he reiterates the point in a comment on her second post: “I don’t think that [corpus linguistics] should be used to foreclose consideration of other evidence of meaning.”

On top of that, Mouritsen denies Hessick’s assertion that he sees corpus linguistics as a new theory of statutory interpretation:

I disagree with the suggestion that what Justice Lee and I have advocated treats corpus linguistics as more than a tool that can provide useful information when the law asks certain linguistically oriented questions. In short, I don’t believe, and haven’t advocated, corpus linguistics as a “new twist on textualism.”

As an example of the fact that using corpus analysis doesn’t exclude considering other factors, Mouritsen points to Justice Lee’s first opinion drawing on corpus linguistics (which Mouritsen, who was Lee’s law clerk, presumably had a hand in writing). As Mouritsen points out, that opinion didn’t limit its discussion to the corpus analysis, but also considered a variety of factors that regularly play a role in mainstream statutory interpretation:

Justice Lee examines the statutory definition of ‘custody’ and ‘visitation,’ the text and grammatical context of the act, the Act’s constitutional implications (it is one of the few statutes enacted pursuant to the Full Faith & Credit Clause and the enabling act of that Clause), the statutory preamble and its stated purpose, the legislative history of the [Act], and a clear statement rule about narrowly construing federal statutes that implicate traditional state law prerogatives like family law.

Based on statements like these, I suspect that Mouritsen would join me in agreeing with Brian Slocum’s statement that “no one should argue that corpus linguistics by itself can resolve issues of statutory meaning.”

Turning from the ultimate question of a statute’s legal meaning to the issue of ordinary meaning (which is not necessarily the only factor relevant to statutory interpretation), Mouritsen takes issue with Hessick’s description of his views. In her first post, Hessick had said, “If the database says a term is more often used as X than Y, then corpus linguistics tells us that is the ‘ordinary meaning.’” But that characterization, he said, “doesn’t capture the approach we have outlined in our paper.” For example, Mouritsen denies that he advocates “merely characterizing the most frequent sense of a word as the ordinary meaning.” And even when there is strong corpus evidence for a particular reading, so that it would be  reasonable to conclude “that the people subject to that statute would have understood the word in a way that is consistent with its most common meaning in those circumstances,” Mouritsen still wouldn’t treat that evidence as decisive. Rather, he would regard it as giving rise to “a presumption that…should be rebuttable where there is compelling evidence that an alternative sense of the word or phrase was intended.”

Finally, Mouritsen does not contend that corpus analysis is appropriate for all cases. On the contrary, he recognizes that determining when corpus linguistics should and should not be used is a topic that needs to be discussed: “Shared standards, practices, and methods emerge when people in the relevant field start using the tool and start debating where it is useful and where it is not useful (or even harmful).” And while I don’t know whether Justice Lee has said anything about how often cases will arise in which corpus analysis would be appropriate, his practice in deciding cases suggests that he doesn’t expect such cases to be all that common. In the six-and-a-half years since he first looked to corpus linguistics in July 2011, he has only used it in one other case, and has mentioned it in only two more. That hardly suggests that he sees corpus linguistics as the basis for an all-encompassing theory of interpretation.

IN ADDITION TO not dealing with Mouritsen’s comments on her previous draft, Hessick reads his work (both as sole author and with Justice Lee)  in ways that differ substantially from how I understand them.

For example, Hessick says that Lee and Mouritsen “denounce the reasonable person standard as nothing more than ‘judicial intuition,’ which is insufficiently objective and does not result in predictable outcomes.” The “reasonable person standard” to which Hessick refers is the conception of ordinary meaning that is espoused by textualists, which she describes at one point as “the meaning that is intended by a reasonable speaker or the meaning that is understood by a reasonable listener.” (I need to note here that contrary to what that statement suggests, textualists do not think that courts should try to determine the meaning that is “intended by a reasonable speaker”; their focus is on how the text is likely to be understood.)

Hessick also argues that Lee and Mouritsen “have been quite clear that they prefer corpus linguistics to the reasonable person standard because corpus linguistics minimizes judicial discretion,” and that they “object to the reasonable person standard because the standard is ‘idealized’ and therefore it ‘has little or nothing to do with the actual meaning intended by a legislator or understood by the public.’”

I don’t think those statements accurately describe the views of either Lee or Mouritsen, or that they are  borne out by the citations that are offered as evidence to support them. I’ll start focus here on with the passage quoted at the end of the previous paragraph. The source that is cited for Hessick’s statement is a portion of Lee and Mouritsen’s forthcoming Yale Law Journal article (draft pp. 21-22) discussing Harvard law professor Richard Fallon’s article The Meaning of Legal “Meaning” and Its Implications for Theories of Legal Interpretation. Fallon’s article describes a number of different conceptions of legal meaning; the one that is the subject of the discussion that Hessick cites (82 U. Chi. L. Rev. at 1250-51) is what Fallon calls “reasonable meaning,” which Lee and Mouritsen refer to as “‘reasonable’ or ‘imputed’ meaning.” Fallon’s article makes it clear that what he is talking about is the conception of legal meaning that was advanced by Hart and Sacks in The Legal Process, which is not primarily concerned with determining ordinary meaning. And that failure to focus on ordinary meaning is precisely what Lee and Mouritsen are critical of. The Hart and Sacks reasonable-meaning approach is, in Lee and Mouritsen’s words, “a conception of extra-ordinary meaning” (their hyphen), and they say that it “has nothing to do with the actual communicative content of the words of the law[.]” (Draft p. 21.)

So despite the use of the word reasonable in the “reasonable meaning” label as used by Fallon, Lee and Mouritsen are not criticizing the equation of ordinary meaning with the “the understanding of the objectively reasonable person.” Indeed, far from rejecting that conception of meaning, their advocacy of corpus linguistics is based on it.

In fairness to Hessick, I should note that Fallon at one point seems to conflate Hart and Sacks’s  conception of legal meaning, which focuses on the purpose that is imputed to the legislature), with the textualists’ focus on the how the text is likely to be understood by a reasonable reader. (See his footnote 54 and the accompanying text.) And Hessick quotes a confusingly-written passage by Judge Frank Easterbrook—a leading textualist—that discusses the reasonable-person standard (not the reasonable-meaning standard) in terms that might lead one to mistakenly think that he, too, was channeling Hart and Sacks. But even granting any confusion generated by Fallon and Easterbook, the fact is that Hessick’s account of Lee and Mouritsen’s position is, I believe, inaccurate.

IN THIS POST, I have talked mainly about the relationship between corpus linguistics and the ultimate goal of legal interpretation, that goal being to determine (or, if you prefer, declare) the legal meaning of the text at issue. I’ve talked only a little about the possible role of corpus linguistics in the task of determining the text’s ordinary meaning. That issue will be  much more prominent in my next post, which will take issue with Hessick’s contention that using corpus linguistics would radically reframe the ordinary-meaning inquiry in ways that are, in her view, unprecedented.

Hessick describes corpus linguistics as “claim[ing] that ordinary meaning is an empirical question” as “tell[ing] us that this empirical question ought to be answered by how frequently a term is used in a particular way.” In her view,  “these analytical moves represent significant departures from current theories of statutory interpretation[.]” I agree that corpus linguistics treats meaning as an empirical question and that corpus analysis often involves analyzing the relative frequencies of the different ways in which linguistic expressions are used. But I disagree with Hessick’s contention that empiricism and a concern with relative frequency are in any way new to legal interpretation. They have, I believe, been part of legal interpretation all along—but implicitly, not on the surface where they can be seen.

In the next part of this series of posts (here), I’ll explain my basis for saying that.