Category Archives: Cases

Meaning in the framework of corpus linguistics

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.

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Some comments on Hessick on corpus linguistics (updated)

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.

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Corpus linguistics coming to the Sixth Circuit bench? (Plus LAWnCorpusLing roundup)

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

Words, Meanings, Corpora: A Lawyer’s Introduction to Meaning in the Framework of Corpus Linguistics

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.

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More on the dueling canons

After further thought about my dueling-canons post, I have a few additional points that I need make. And also a special offer for law-review staff members.

First, I have to make a correction. I spoke too broadly when I said that Reading Law didn’t cite anything in the prior caselaw to show that there existed such a thing as the Series-Qualifier Canon. The book does cite cases stating that when an adjective appears before a series of nouns, it is generally understood to modify all the items. It also cites cases that can be read to state an analogous proposition with respect to adverbs and verbs. And it cites cases that reach results consistent with those propositions, but without making any broad generalizations. So I shouldn’t have said there was no support in the caselaw for the Series-Qualifier Canon as it relates to modifiers that precede the items they modify.

However, the situation is different as to modifiers that follow the items they modify. In the cases that are cited that involved such constructions, the decision was based narrowly on the specifics of the particular statute, not on general statements about how such constructions are generally understood. In fact two of the cases cited the Rule of the Last Antecedent, but interpreted the modifier as having a wider scope based on other factors—as the Rule recognizes is possible. So not only do those cases not support the Series-Qualifier Canon with respect to postmodification, but they provide further evidence that the carve-out from the Nearest-Reasonable-Referent Canon is not justified by the caselaw.

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The Supreme Court’s misinterpretation of the word “because”

[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.

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Coming to SCOTUS: Battle of the dueling interpretive canons. [Updated]

THE CANONS OF LEGAL INTERPRETATION are pithy sayings setting out various ways in which statutes should or should not be interpreted:

Every word in a statute should be given effect.
Expressio unius est exclusion alterius (the expression of one thing suggests the exclusion of others).
Ejusdem generis (interpret a general term to reflect the class of objects reflected in more specific terms accompanying it).
Statutes should be presumed not to apply extraterritorially.
and so forth.

Karl Llewellyn, a prominent mid-20th century legal scholar, famously said that “there are two opposing canons on almost every point.” On November 3, the Supreme Court will hear argument in Lockhart v. United States, a case that presents about as stark a clash between opposing canons as you could ever hope to find.

Lockhart is of interest to us here at LAWnLinguistics because the canons at issue are among the small group of “linguistic canons”—those that deal with language-related issues. In particular, they deal with resolving ambiguities that arise as a result of the statutory language having more than one plausible syntactic structure. I dealt at some length with the general issue of syntactic ambiguity, and with the specific canons that are now at issue in Lockhart, in my multipart look at Reading Law: The Interpretation of Legal Texts, by Supreme Court Justice Antonin Scalia and legal-writing guru Bryan Garner. (Of my previous posts about the book the ones most relevant here are Syntactic ambiguity, Three syntactic canons, On Garner on Posner on Scalia & Garner, and Last antecedents, series qualifiers, and psycholinguistics.)

In those posts (particularly the last three) I criticized several aspects of how Reading Law treated the canons that are now at issue in Lockhart. And those some of those criticisms, as well as others that have occurred to me as I’ve thought about Lockhart, are pertinent to the legal issues in the case. And more broadly, as I’ve continued to think about Reading Law’s handling of the syntactic canons, I’ve come to believe that the framework established by Reading Law is not merely problematic, but deeply flawed. And as it turns out, Lockhart provides a good lens through which those flaws can be examined.

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