Lucia v. SEC: Corpus linguistics and originalism

Over about the past year, there’s been a significant increase in the attention being paid to the idea of using corpus linguistics in legal interpretation. One of the most recent developments has occurred in a case that will be argued next week in the Supreme Court, in which two of the amicus briefs rely on corpus linguistics (Brief of Scholars of Corpus Linguistics; Brief of Prof. Jennifer L. Mascott).

The case in question is  Lucia v. Securities and Exchange Commission, and it raises  the question whether federal Administrative Law Judges are “officers of the United States” within the meaning of the Appointments Clause of the Constitution. This is the first of what will be two or three posts that are prompted by the filing of these briefs. However, none of the posts will deal with the substance of the legal or linguistic issues in the case.

Lucia is the first Supreme Court case I’m aware of in which anyone has relied on corpus analysis since FCC v. AT&T, Inc., in which I filed an amicus brief that was largely corpus-based. It’s also as far as I know the only case in any court where corpus analysis has been used in a brief in connection with an issue of constitutional interpretation.

That’s significant, because I suspect that for many people who’ve heard of corpus linguistics but haven’t had any experience with it, there is a tendency to associate it with originalist approaches to constitutional interpretation. That wouldn’t be surprising, given that much of the legal scholarship dealing with corpus linguistics approaches the issue from an explicitly originalist perspective. And in fact a major project of several of these originalist scholars has been the development of the Corpus of Founding Era American English, the purpose of which is to provide a resource for originalist research.

I’m concerned that the association of corpus linguistics with originalism might incline some nonoriginalists to be more skeptical of corpus linguistics than they would be otherwise. That would be unfortunate, because corpus linguistics is a tool that can be useful no matter what interpretive approach you follow. So being open to the idea of using corpus linguistics doesn’t require a commitment to originalism, and it shouldn’t be understood as being a sign of  such a commitment. As I’ve said about the broader issue of lawyers and judges drawing on  linguistics in general (here and here), there is no interpretive framework that ignores the issue of ordinary meaning. And corpus linguistics is relevant only to that issue. So for those who think that the ordinary meaning of a text doesn’t necessarily determine its legal meaning, there is no inconsistency in using corpus linguistics at the ordinary-meaning stage and then going on to consider nontextual factors in resolving the issue of legal meaning.

In fact, although I’m ecumenically agnostic when it comes to theories of interpretation, I’ve noted that my assumptions about the relevance of linguistics to legal interpretation “are as a practical matter at least partially consistent with intentionalism, and they could help to justify considering at least some types of legislative history” (link). (Which is not to say that those assumptions are inconsistent with textualism.)

For anyone whose skepticism about corpus linguistics I haven’t managed to allay, here’s another point to consider. Although it’s too early to know the extent to which corpus linguistics will catch on among lawyers and judges, I don’t think it’s something that can be safely ignored. As corpus linguistics attracts more attention, it’s likely that more judges will express an interest in it and that practicing lawyers will consider the possibility of relying on corpus analysis in their cases. If that happens, the two phenomena may well become mutually reinforcing: any indication of interest by judges will give lawyers added incentive to explore corpus linguistics, and once lawyers start making corpus-based arguments, judges will have to address them, which will in turn attract still more attention and continue to feed the cycle.

And because there are always at least two opposing sides in litigation, for every case in which one side relies on corpus linguistics, there will be attorneys on the other side who will need to know how to respond—for example, by arguing that the issue is not a good candidate for corpus analysis, by criticizing the first party’s collection or analysis of the data, or by offering data supporting a different conclusion. In other words, there may come a point when familiarity with corpus linguistics (or at least access to somebody having such familiarity) becomes part of what it means to be a competent litigator, just as has become true of familiarity with electronic discovery today.

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