[An introduction and guide to my series of posts “Corpora and the Second Amendment” is available here.]
Two quick updates.
First, David Weisberg has replied to my response to his post on the Originalism Blog, but he doesn’t address the point that I made, which was that I disagreed with his framing of the issue.
Weisberg also notes that I didn’t respond to the second point in his original post (which dealt with a purely legal issue), and he goes on to say this:
Many people (and I think Goldfarb is one) believe the correct sense of the 2nd Amend is this: “The right of the people to keep and bear Arms, for use in a State’s well regulated Militia, shall not be infringed.” But, if that is what the framers meant, why isn’t that what they wrote? I think that is a very fair question to ask, and it merits an answer. After all, 5 words would have been saved. Will corpus linguistics provide an answer?
I’m not going to offer any views in this series of posts about how I think the Second Amendment as a whole should be interpreted; I’m focusing only on Heller‘s interpretation of the phrase keep and bear arms. So I’m not going to say whether Weisberg is correct in his speculation about what I think on that score. Weisberg then asks why, if the framers had intended to convey the meaning he posits, they didn’t write the amendment in those terms. Although Weisberg thinks that is “a very fair question to ask,” I don’t think it’s a question that’s relevant to the issue as the Court framed it in Heller, which had to do with how the Second Amendment’s text was likely to have been understood by members of the public, not with what the framers intended. Nevertheless, I’ll say that the question to which Weisberg wants an answer is not one that can be answered by corpus linguistics.
The B.Y.U. Law Review has published its special issue devoted to the papers presented at the 2017 law-and-corpus-linguistics conference hosted by the B.Y.U. Law School.
One of the papers in the volume is mine: “A Lawyer’s Introduction to Meaning in the Framework of Corpus Linguistics” (abstract; pdf), which discusses a new way of thinking about the issue of word meaning that has developed as a result of the use of corpus linguistics in lexicography. A condensed version of that discussion (very condensed) can be found in my post Meaning in the Framework of Corpus Linguistics.
Of the other papers, there are three that I think will be of the most interest to readers (whether judges, lawyers, or legal academics) who want to learn more about what role corpus linguistics can play in legal interpretation. Two of those papers view the use of corpus linguistics positively; the other is critical of it.
Carissa Hessick and I have been debating the appropriateness of using empirical methods in legal interpretation. The debate began on PrawfsBlawg, then moved over here (with some continued discussion at Prawfs), and then spread to Twitter. The relevant tweets are collected in my previous post, and in this post I’ll respond to Hessick’s most recent points.
As I understand her, Hessick contends that the issue of ordinary meaning isn’t an “empirical question” because the question of how a reasonable person would understand the text is inherently qualitative rather than quantitative, and therefore can’t be answered in a way that is “provable or verifiable.” I accept Hessick’s characterization of the ordinary-meaning issue as being qualitative rather than quantitative, but it doesn’t follow that quantitative information is always irrelevant.
My last post, Corpus linguistics: Empiricism and frequency, prompted a Twitter exchange between Carissa Hessick and me, a lightly edited version of which I present here.
One question based on my quick read: Do you think most people would understand “relying on linguistic intuition” to be an empirical undertaking? I appreciate the insight into how people’s linguistic intuitions are formed. But don’t most people think that, if something is an empirical question, that means there is a demonstrably correct answer?
And if we often have different intuitions about what a word means (as the split decisions on ordinary meaning illustrate), and if judges resolve the Q of ordinary meaning by consulting their own intuitions, then how can ordinary meaning be an empirical Q? If I have one intuition and you have another, then how to we demonstrate which is correct and which is incorrect?
Me: Continue reading
This is the second in a series of posts about the essentially final version of Carissa Hessick’s article Corpus Linguistics and the Criminal Law. The first post dealt mainly with Hessick’s views about how corpus linguistics relates to ultimate purpose of legal interpretation, which is to determine the legal meaning of the text in dispute. This time around, I’ll be discussing her claim that incorporating corpus linguistics into legal interpretation would radically transform the process of determining the text’s ordinary meaning:
Corpus linguistics reframes the “plain” or “ordinary” meaning inquiry in two ways. First, it claims that ordinary meaning is an empirical question. Second, it tells us that this empirical question ought to be answered by how frequently a term is used in a particular way. Both of these analytical moves represent significant departures from current theories of statutory interpretation, including textualism, and they render statutory interpretation essentially unrecognizable.
This statement is a mixed bag. In one respect, it’s correct. Those who support the use of corpus linguistics in legal interpretation do regard ordinary meaning as an empirical question—or at least as involving empirical questions. In a different respect, it is partly correct but oversimplified. Analysis of frequency data is in fact central to corpus linguistics, but it is not necessarily decisive, and in some cases (perhaps in many cases) it will not be helpful at all. And in a third respect, Hessick’s statement is wrong. Neither the empiricism of corpus linguistics nor the attention it pays to frequency represents a “significant departure” from existing interpretive theories.
Empiricism Continue reading
Sometimes, it’s immediately obvious from the opinions that a case raises questions about interpretation that are interesting, important, or both. Smith v. United States, in which the question was whether trading a handgun for drugs amounts to “using” it, is a classic example. At first glance, the Supreme Court’s decision in Artis v. District of Columbia doesn’t seem to be in that category. It doesn’t offer interesting linguistic issues that call attention to themselves, except for someone who is familiar with the work of the linguist John Sinclair and the lexicographer Patrick Hanks. But with some digging, Artis yields some issues that I think are interesting and significant, having to do with new approaches to analyzing questions of word meaning and with how not to use dictionaries.
Posted in "toll" (v.), Alito, Artis v. District of Columbia, Corpus linguistics & lexicography, Corpus linguistics and statutory interpretation, Dictionaries, Ginsburg, Gorsuch, Law and corpus linguistics, Law and linguistics, Word meaning
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.