In a comment on one of Carissa Hessick’s posts about corpus linguistics at Prawfsblawg, Asher Steinberg expressed the view that relying on frequency data in deciding issues of ordinary meaning is misguided. (Steinberg blogs at The Narrowest Grounds, where he frequently writes intelligently about statutory interpretation.) Shortly after that, I posted Meaning in the framework of corpus linguistics here, in which I explained why I believe that frequency data can in fact be relevant in doing legal interpretation. And that post prompted a long comment by Steinberg, elaborating on his objection to using frequency data in legal interpretation.
Steinberg fears that if the courts were to draw on corpus linguistics in the way I that I advocate, statutory interpretation would “fall into fundamental error[.]”His point of departure is my analysis of the corpus data regarding the issue raised by Muscarello v. United States—whether driving somewhere with a gun in the trunk or glove compartment counts as carrying a firearm. (My conclusions are briefly summarized in the post Steinberg comments on; for the full analysis, see my forthcoming article A Lawyer’s Introduction to Meaning in the Framework of Corpus Linguistics (henceforth, A Lawyer’s Introduction)) Steinberg argues that frequency data—or at least the kind of frequency data that my analysis is based on— is inherently unreliable as evidence of ordinary meaning.
I beg to differ.
I recently came across a new paper by Stephen Mouritsen: “Corpus Linguistics in Legal Interpretation—And Evolving Interpretive Framework” (pdf). Judging from the title, you might think that the paper is intended as an introduction to corpus linguistics as an interpretive tool, with the intended audience being lawyers, judges, and law professors. But if you thought that, you’d be wrong.
The paper traces the birth and development (so far) of law-and-corpus-linguistics as a field of practice and study. (Hmmm…“field of practice and study”? Doesn’t that sound a little overblown?) Because the paper was written for an audience that was already familiar with corpus linguistics, it doesn’t explain what corpus linguistics is. What it does instead is to give a fairly complete description of the work that has been done so far in this area of inquiry. (No, that’s worse.) It covers what’s happened in the courts, in the legal academy, and in the internet-o-sphere. And with more attention starting to be paid law-and-corpus-linguistics movement (oy), there has been a need for something that will help them get up to speed. This paper fills that need.
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.
Posted in "carry", Corpus linguistics & lexicography, Corpus linguistics and statutory interpretation, Dictionaries, Hessick, Interpretation versus comprehension, Law and corpus linguistics, Law and linguistics, Muscarello v. United States, Slocum, Uncategorized
“I really, really like the work in Congress, I really do, but I love my family more. People may try to make it more than that, but it’s really that simple,” Chaffetz said on MSNBC. “I just turned 50. I’m sleeping on a cot in my office.”
Chaffetz On No 2018 Run: ‘I Just Turned 50, I’m Sleeping On A Cot In My Office,’ Talking Points Memo xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxx
Everyone familiar with the academic literature on statutory interpretation is aware of the vehicles-in-the-park hypothetical. It was formulated by the legal philosopher H.L.A. Hart to illustrate the argument that the words in which a law is written must have “a core of settled meaning”—a set of standard instance in which no doubts are felt about [the law’s] application”—but will also have “a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out.” Harvard law professor Lon Fuller denied the existence of any core area in which the law’s applicability was clear; for Fuller, the law’s applicability turned not on linguistic semantics but on the law’s purpose. Thus, he asked whether, under the hypothesized prohibition against vehicles in the park, “mount[ing] on a pedestal in the park a truck used in World War II…in perfect working order” would fall within the law’s core or its periphery.
Less well known is a separate hypothetical offered by Fuller to support his challenge to Hart. Fuller posits a law making it a misdemeanor “to sleep in any railway station.” He then supposes that two people have been arrested for violating this law: one who dozed off while waiting for a train, and another “who had brought a blanket and pillow to the station and had obviously settled himself down for the night[,]” but who had been arrested before he fell asleep. “Which of these cases,” Fuller asked, “presents the ‘standard instance’ of the word ‘sleep’?” And would it be faithful to the law to say that the law had been violated by the second person but not the first?
The hypothetical is thought-provoking because applying what is assumed to be the literal meaning of the law—that it prohibits being asleep in a railway station—would yield a conclusion that seems nonsensical: that the law was violated by the dozing passenger but not by the guy who was bedded down but still awake. The hypothetical has been discussed by some very smart legal scholars and philosophers over the years, including Kent Greenawalt, Fred Schauer, John Manning, Scott Soames, and Andrei Marmor, and with few exceptions (mainly Robyn Carston) they have accepted that assumption. Schauer put it as well as anyone: “Sleep is a physiological state, and as a matter of physiology Fuller’s businessman was sleeping. Period.”
But in fact (you can guess where this is going, can’t you?), the assumption’s validity is doubtful at best. It is entirely consistent with actual usage to use sleep in a railway station to mean ‘use a railway station as a place to sleep’ rather than ‘be asleep in a railway station.’
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, Corpus linguistics and statutory interpretation, Larsen, Law and corpus linguistics, Law and 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.