At the end of my previous post discussing Carissa Hessick’s paper “Corpus Linguistics and the Criminal Law,” I said that I would follow up with another post “making the affirmative case for the relevance of frequency data in determining ordinary meaning.” This is that post.
Given that subject, you might wonder why I’ve titled this post “Meaning in the framework of corpus linguistics.” The answer is that corpus linguistics has not only provided a methodology for investigating meaning, it has also generated important insights about word meaning. (That was the subject of the paper I presented at the BYU symposium in February, which will be published, along with the other papers from the symposium, in a special issue of the BYU Law Review.) I’ll draw on those insights when I talk about frequency analysis, and I thought it would be helpful to make them explicit.
THERE ARE A VARIETY OF DIFFERENT WAYS to think about word meanings. One of them is the way that I see as characteristic of how lawyers and judges tend to think: the meaning of a word is more or less equated with its dictionary definition, and then the definition is in effect read into the statute. If you’ve read a lot of cases, you’ll probably recognize the pattern:
The issue here is what “flood” means. Webster’s Dictionary defines “flood” to mean, “a great flow of water over what is usually dry land.” Therefore, the plaintiffs must show that the water in their basement resulted from a great flow of water over what is usually dry land.
Under this approach, the dictionary entry is treated as if what it defines is the concept flood rather than the word flood. The dictionary entry is being used as stating the conditions determining whether a particular instance of water on the ground qualifies as a flood. Considering the role that dictionaries have come to play in legal interpretation, it is no small irony that many lexicographers would say that the definitions they write aren’t intended to serve that purpose.
UP UNTIL NOW, the use of corpus linguistics in legal interpretation has gotten almost entirely good press—probably because almost all the press it’s gotten has come from its advocates. That situation has now changed, though, with the posting on SSRN of a paper by UNC law professor Carissa Hessick, who was one of the participants at the BYU law-and-corpus-linguistics symposium this past February. (Hessick has blogged about her paper at Prawfsblawg, here and here.)
The paper, “Corpus Linguistics and the Criminal Law” (pdf), argues that corpus linguistics “is not an appropriate tool” for interpreting statutes. Although it deals specifically with using corpus linguistics in interpreting criminal statutes, and Hessick’s concerns may not be as strong as to other areas of the law, much of her criticism would apply across the board. In this post I am going to discuss some of the issues that the paper raises, and if you’ve followed this blog before, you won’t be surprised to find out that I disagree with Hessick’s conclusion.
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. Continue reading
Posted in Corpus linguistics & lexicography, Larsen, Law & corpus linguistics, Law & linguistics, Law review articles, Lee, Rasabout, Self-promotion, Smith, Solan, Solum
On Friday I will be presenting a paper at a conference at Brigham Young University Law School on law and corpus linguistics. Here is the description from the conference website:
Building on the 2016 inaugural Law and Corpus Linguistics Conference, the 2017 BYU Law Review Symposium, “Law & Corpus Linguistics” brings together legal scholars from across various substantive areas of scholarship, prominent corpus linguistics scholars, and judges who have employed corpus linguistics analysis in their decisions.
Although there’s a link on the webpage for the papers that will be presented, they are password-protected. However, my paper is posted on SSRN and can be downloaded there. It is titled Words, Meanings, Corpora: A Lawyer’s Introduction to Meaning in the Framework of Corpus Linguistics, and the abstract is below the fold.
[This post has been revised; see my note at the bottom.]
The post before this one, dealing with the dueling canons in Lockhart v. United States, was my first after a gap of more than two years. In my last post before that gap, I wrote about an amicus brief I had just filed in the Supreme Court in Nassar v. University of Texas Southwestern Medical Center. The brief dealt with the meaning of the construction because of X. Specifically, it dealt with whether that construction incorporates the notion of but-for causation as part of its meaning. My brief argued that it does not.
The Supreme Court had previously reached the opposite conclusion, in a case involving the Age Discrimination in Employment Act: Gross v. FBL Financial Services. In Nassar, the question was whether the holding in Gross should be extended to a different statute that similarly used the formulation because of X. I argued that the Court should not follow Gross because Gross had been wrong about what because means. Some might regard such an argument as quixotic; I preferred to think of it as audacious.
The core of my argument was based on real-world sentences like Example (1) (emphasis added):
(1) The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.