Category Archives: Law and linguistics

“Empirical” doesn’t necessarily mean “definitively verifiable”

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.

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Corpus linguistics and empiricism: A Twitter exchange

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.

Hessick:

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?

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Corpus linguistics: Empiricism and frequency

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.

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Thinking like a linguist (some news)

I have two pieces of news I want to share.

First, I am very excited to say that I have received an appointment by the Georgetown University Law Center (aka Georgetown Law) as a Dean’s Visiting Scholar.

That appointment will provide me with a platform from which I’ll continue and expand on the kind of work that I’ve been doing here at LAWnLinguistics, in the amicus briefs in which I’ve drawn on linguistics, and in my paper A Lawyer’s Introduction to Meaning in the Framework of Corpus Linguistics: developing and promoting the idea that part of what it means to think like a lawyer is learning how to think like a linguist.

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Artis v. District of Columbia, part 2: Units of meaning and dictionary definitions

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.

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SCOTUS cites CGEL (props to Justice Gorsuch and the Supreme Court Library)

When grammatical questions come up in cases, the lawyers and judges will want to support their arguments and analyses with citations to books about grammar. Most of the time, they cite books intended for a general audience, such as the McGraw-Hill Handbook of English Grammar and Usage, The Elements of Grammar, Strunk & White, and various books by Bryan Garner; and books intended for lawyers, such as The Grammar and Writing Handbook for Lawyers and (again) various books by Bryan Garner.

Unfortunately, none of those books gives an adequate description of English grammar, which is a subject that is much more complex than most people realize. If you’re looking for a book that can speak about the subject reliably and with authority, the leading candidates are two books that are both known by the initials CGEL.

One is the Cambridge Grammar of the English Language (2002), whose main co-authors are Rodney Huddleston and Geoffrey Pullum. The other is the Comprehensive Grammar of the English Language (1985), by Randolph Quirk, Sidney Greenbaum, Geoffrey Leech, and Jan Svartvik. If you’re dubious about my statement regarding the complexity of English grammar, you should note that both of these books are enormous: the text of Huddleston & Pullum exceeds 1,700 pages, and Quirk et al.’s exceeds 1,600 pages. If you ever have occasion to hold a copy of either book in your hands, be careful not to drop it on your toes.

Up until today, Huddleston & Pullum had been cited by U.S. courts 24 times, and Quirk et al., 12 times. The courts in question included the federal courts of appeals for the Fifth and Sixth Circuits and the supreme courts of Colorado, Minnesota, Oregon, Utah, and Washington. But not the U.S. Supreme Court.

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#GorsuchDictionaries: Into the lexicographic weeds (updated, and updated again)

Note: If you’re coming back to this post after having read it already, be sure to note the additional update I’ve added, which comes right after the discussion that dates the W2 definition back to 1934.

A new hashtag popped up last week, #GorsuchStyle, devoted to spoofing Justice Gorsuch’s writing style, or at least the style that is on display in the opening sentences of his dissenting opinion in  Artis v. District of Columbia (pdf): “Chesterton reminds us not to clear away a fence just because we cannot see its point. Even if a fence doesn’t seem to have a reason, sometimes all that means is we need to look more carefully for the reason it was built in the first place.”

I mention that, not because this post will be about Gorsuch’s writing style (it won’t), but because I’m not above a little clickbait-y coattail-riding. It’s not gratuitous clickbait, mind you. This post is about Gorsuch’s dissent in Artis. And it remains to be seen whether it’s effective clickbait. Part of me thinks that if your title includes the word lexicographic, maybe you’re doing clickbait wrong. On the other hand, #AppellateTwitter likes dictionaries, so maybe not.

What this post will be about is Gorsuch’s choice of which dictionaries to cite in his Artis dissent. As the title suggests, it will be heavy on lexicography, but it will also touch on what that choice says about whether Gorsuch is a snoot, like his predecessor was, and if so whether that ought to play a role in his decision about what dictionaries to cite. I also plan on doing a separate post to talk about the contrasting approaches to word meaning that are on display in Artis, both of them resonating, though in opposite ways, with what I’ve written about that subject (link, link).

Update: The second post can be found here.

As you may have gathered know if you’re familiar with some of the things I’ve written about word meaning, I’m not a big fan of the central role that dictionaries play in the way lawyers, judges, and legal scholars deal with issues of word meaning. For this post, though, I’ll put that dissatisfaction aside, and will treat the use of dictionaries as perfectly appropriate interpretive tools.

THE ISSUE of which dictionary to use is a recurring one in the academic literature about judges’ use of dictionaries. It’s usually discussed under the rubric of “dictionary shopping”—the practice of looking for the definitions that are most supportive of the result you want to reach. That practice is of course the norm for lawyers arguing cases, but it’s problematic for judges or legal scholars, who aren’t supposed to start out with a preferred outcome and then reason backward to the arguments that can support it. However, there is at least one circumstance in which selectiveness about the dictionaries that one cites can be appropriate: when the purpose of citing the dictionary is merely to show that a particular reading of the word in question is possible. And in fact that was Gorsuch’s purpose in relying on the definitions he cited; he was arguing that the statute was ambiguous.

Nevertheless, Gorsuch’s dictionary choices in Artis are subject to some significant criticisms in terms of what might be called lexicographic relevance: the definitions he relies on don’t necessarily shed much light on the meaning of the statutory language that was in dispute. And in that respect, the dissent is not the first time that judges have gone lexicographically astray.

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Responding further to Hessick on corpus linguistics (The first in a series)

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.

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Voting rights and the language of causation

Last week the Supreme Court heard Husted v. A. Philip Randolph Institute, a big voting-rights case that—as I only recently learned—involves a statute raising a linguistic issue similar to the one I argued in my amicus brief in University of Texas Southwestern Medical Center v. Nassar. The statute in each case makes it illegal to take certain action if  the action is taken for a prohibited reason. In Husted, the statute prohibits states from removing people from the list of eligible voters “solely by reason of a failure to vote.” In Nassar, it prohibited employers from discriminating against any employee “because he has opposed any practice made an unlawful employment practice by [the statute], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the statute].”

The linguistic issue that I want to talk about is whether the boldfaced language in each statute has the effect of requiring “but for” causation. As the lawyers reading this will know, a “but for” cause is a cause without which (i.e., but for which) the result in question would not have occurred. In philosophy, but-for causes are referred to as “necessary causes,” and they are distinguished from “sufficient causes,” which are causes that would be sufficient to bring about the result, but that may co-occur with other sufficient causes.

My amicus brief in Nassar (discussed here and here) challenged the Supreme Court’s earlier holding in Gross v. FBL Financial Services that under a statute prohibiting discrimination “because of” an employee’s age, plaintiffs are required to prove that their age was a but-for cause of the employer’s action against them. The Court in Gross had relied mainly on dictionary definitions (which didn’t actually address the issue, but never mind that), as well as on cases in that had held but-for causation to be required by the various other expressions, including by reason of. My brief argued that Gross was incorrect and that its error should not be extended to the different statute that was at issue in Nassar. I knew that the odds were against my argument being accepted by a majority of the justices, but I figured that at a minimum, the dissenters would pick up on it. As things turned out, that was, shall we say, overoptimistic on my part. The brief went nowhere.

And now along comes Husted, which gives me an excuse opportunity to bring up this issue again.

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More on the relevance of frequency data: Responding to Steinberg

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.

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