Over at Volokh Conspiracy, Will Baude has commented on my post about the language of the law. Will and his co-author Steve Sachs recently had a paper titled “The Law of Interpretation” published as a lead article in the Harvard Law Review. They have a view of the rules of legal interpretation that differs from McGinnis and Rappaport’s and is fairly similar to mine:
In that piece, we argue that some interpretive rules are linguistic ones, elements of our written language, but others, maybe many, are legal ones. Rather than assimilating them to rules of language, we analogize them to other legal defaults, many of which are unwritten, such as the rules for mens rea or accomplice liability in criminal statutes. Seeing such rules as law, not language, avoids critiques like Goldfarb’s that legal rules don’t operate in the way that he says that languages generally operate.
However, Baude sees his (and Sachs’s) conception of legal rules as differing somewhat from my description of legal interpretation as process of explicit reasoning:
I take [Goldfarb’s] point about how introspection might differ for language and for law, but we are not committed to the view that all legal interpretive rules entail a “deliberative process by which the interpreter consciously thinks about how the utterance or text should be understood.” Trained lawyers may well use the mens rea canon without really thinking about it. And we affirmatively disagree with the suggestion legal interpretive rules must be “promulgated explicitly by actors vested with institutional authority.” We think such rules can, and often do, exist as part of the general common law backdrops of our legal system — authoritative rules of custom that have never been explicitly promulgated by any lawmaker in particular.
I’ll deal with these points in reverse order.
Posted in "Language of the law", Baude, Constitution, Interpretation versus comprehension, Law review articles, McGinnis, Pragmatics, Rappaport, Rules (vs. generalizations, regularities, etc.)
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
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 & linguistics, Law review articles, Legal language, nature of, McGinnis, Originalism, Polysemy, Rappaport, Rules (vs. generalizations, regularities, etc.), Solum
Coming soon in the Brigham Young University Law Review: “The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning,” by Stephen Mouritsen.
Mouritsen, who is currently clerking on the Utah Supreme Court, has an MA in linguistics from BYU, with an emphasis on corpus linguistics. He studied under Mark Davies, who compiled the Corpus of Contemporary American English and the Corpus of Historical English. The appearance of his article at a time when blogospheric attention is being paid to the legal uses of corpus analysis (e.g., on at The Atlantic and on Language Log) is a nice bit of serendipity.
Posted in Breyer, Cases, Corpus linguistics & lexicography, Dictionaries, Easterbrook, Ginsburg, Judges and justices, Law & corpus linguistics, Law & linguistics, Law review articles, Muscarello v. United States