Category Archives: Solum

Corpus linguistics coming to the Sixth Circuit bench? (Plus LAWnCorpusLing roundup)

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

“The language of the law” is not actually a language

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. 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.

Continue reading