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.
In my first language-of-the-law post the other day, I talked about the fact that the words interpret and interpretation are polysemous—they can be used in multiple different ways that are related to one another: they can be used to refer both to the conscious process of deliberation that underlies legal interpretation and to the automatic and effortless cognitive processes that underlie the comprehension of utterances and texts. And I said that although it’s not unusual to use those word in both ways, in the context of discussing legal interpretation the can be to obscure the fact that the processes differ. As a result, I prefer to use interpret and its derivatives only with respect to legal interpretation, and to use the words comprehend and comprehension to refer to the cognitive processes by which utterances and texts are understood.
It occurred to me that this would provide a good lead for me to discuss some of the assumptions that underlie my efforts to apply linguistics to legal interpretation. I’m going to do that now, and I’m going to do it by drawing on (and adapting) something that I wrote as part of a book proposal.
Posted in "interpret", "interpretation", -isms of interpretation, Bryan Garner, Canons of interpretation, Interpretation versus comprehension, Law and linguistics, Originalism, Polysemy, Scalia, Statutory interpretation, Textualism
THE NATURE OF LEGAL LANGUAGE has been a recurring subject of discussion, within applied linguistics and (U.S.) legal academia. The latest contribution to that discussion is a recently-posted draft paper by John McGinnis and Michael Rappaport, titled The Constitution and the Language of the Law. (h/t Legal Theory Blog)
McGinnis and Rappaport are the primary advocates of an approach to constitutional interpretation known as original-methods originalism, under which courts today are to apply the interpretive methods that prevailed at the time of the framing (pdf). Their new paper argues that original-methods originalism is supported by the fact that (as they see it), the Constitution is written in “the language of the law.”
Although Larry Solum, of Legal Theory Blog, calls the paper “important and brilliant,” I’m afraid that I find its primary argument to be pretty seriously flawed. [UPDATE: McGinnis and Rappaport have responded to this post, and I have replied to their response.]
I’m going to talk here about two related aspects of the paper that I think are problematic. One is its treatment of “the language of the law” (a phrase that I will henceforth capitalize whenever I use it in the way that McGinnis and Rappaport do). McGinnis and Rappaport come close to treating The Language of the Law as a full-blown language on the order of French and Japanese, which I don’t think is justified by the facts. The other major problem that I see lies in the analogy that the paper draws between the rules of legal interpretation and what it calls the “interpretive rules” of ordinary language (which are better described as the cognitive processes involved in the comprehension of utterances and texts). This analogy, which plays a key role in McGinnis and Rappaport’s argument, is invalid because each of the things that they are analogizing is fundamentally dissimilar from the other.
Posted in "interpret", "interpretation", "Language of the law", "language", Constitution, Discourse coherence, Interpretation versus comprehension, Law and linguistics, Law review articles, Legal language, nature of, McGinnis, Originalism, Polysemy, Rappaport, Rules (vs. generalizations, regularities, etc.), Solum