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. Now 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.
As I’ve noted, John McGinnis and Mike Rappaport have responded to my post “The language of the law” is not actually a language. They disagree with what I said, and in this post I will return the favor.
McGinnis and Rappaport make two basic points. First, they say that I did not address their argument that The Language of the Law is a technical language and that as a result there is a gap in my analysis. Second, they dispute my argument that the rules of legal interpretation are not analogous to the cognitive processes that underlie comprehension.
The Language of the Law as a technical language
McGinnis and Rappaport accept the point in my earlier post that legal language—or The Language of the Law, to use their preferred term—is not a full-blown language comparable to Hindi or Pirahã. Their paper recognizes that The Language of the Law is “not wholly independent of ordinary language”, and they describe it as “an overlay on ordinary language.” And they don’t take issue with the statement by Peter Tiersma that I quoted: “If we isolate what is distinctive in legal English, leaving out features of ordinary speech, what remains is far too incomplete to function as a language.”
This is important because McGinnis and Rappaport also don’t disagree with my statement that the strong version of their analysis (meaning the version that assumes a “wide conception” of language) relies on their analogy between The Language of the Law and ordinary language. So in order to defend that portion of their argument, it’s essential for McGinnis and Rappaport to show that their analogy is valid. I don’t think they’ve done so.
Posted in "A technical language", "interpret", "interpretation", "Language of the law", "language", Discourse coherence, Interpretation versus comprehension, Law & linguistics, Legal language, nature of, McGinnis, Polysemy, Rappaport, Rules (vs. generalizations, regularities, etc.)
John McGinnis and Mike Rappaport have posted a jointly-written response to my post “The language of the law” is not actually a language. If this is an area that you’re interested in, you should read what they have to say.
I intend to prepare and post a response, but in the meantime, here is what they believe was the most significant gap in my argument:
Most significantly, Goldfarb fails to address our argument that the language of the law is a technical language. There is little doubt that there are technical languages: many authors have recognized them and many authors have maintained that the language of the law is one such technical language. Goldfarb, however, never explains how he would account for such languages. To be persuasive, he must provide such an account and then explain why our arguments about the language of the law do not follow under his account.
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.
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, Larsen, Law & corpus linguistics, Law & linguistics, Law review articles, Lee, Rasabout, Self-promotion, Smith, Solan, Solum