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, Self-promotion, Smith, Solan, Solum, State v. Rasabout
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
Videos of the symposium I wrote about in the previous post are available here, and having watched parts of it, I don’t feel as bad about missing it.
While Richard Epstein’s keynote address was interesting, it didn’t seem to me to have much to do with what the symposium was supposed to be about, and I’m at a loss to see more than the most tangential connection between what Epstein said and how his talk was described in advance. I didn’t hear any argument “that the underlying linguistic problems should drive the analysis” or that trying “to tailor rules of interpretation to institutional settings” would “detract [from] understanding how and why language works.” I don’t go to a lot of law-school symposia—I’m just a simple country lawyer—so maybe it was naive of me to expect that the program that was actually presented would reasonably approximate what was described in advance.
That (i.e., the title of this post) was the title of an interesting-looking symposium that was held at the NYU Law School last month. I wish I’d known about it in advance; I would have gone. Papers from the symposium will be published in The Journal of Law and Liberty, in an issue due out in late summer.
For me, the most interesting parts of the symposium are the keynote address (by Richard Epstein) and the first panel (featuring Larry Solan, Peter Tiersma, and Scott Soames.)