Category Archives: Self-promotion

Another judicial endorsement of corpus linguistics

On Facebook, Stephen Mouritsen writes, “Justice Christine Durham [of the Utah Supreme Court] finally comes around to corpus linguistics . . . and then promptly retires. (Oh well. A win’s a win.)”

Mouritsen is referring to this, from footnote 9 in Justice Durham’s concurrence in Fire Insurance Exchange v. Oltmanns, 2017 UT 81 [paragraph break added]:

Even though we place great trust in a judge’s discernment, a “judge’s confidence in her linguistic intuition may be misplaced. . . . Though the human language faculty is very good at assessing which meanings are linguistically permissible in a given context, human intuition is less successful in selecting the most common meaning or common understanding.” Stephen C. Mouritsen, Hard Cases and Hard Data: Assessing Corpus Linguistics as an Empirical Path to Plain Meaning, 13 Colum. Sci. & Tech. L. Rev. 156, 160–61 (2012) [hereinafter Mouritsen, Hard Cases]. When terms are to “be interpreted according to their ordinary meaning, they implicate a set of empirical questions, many of which are amenable to different types of linguistic analysis. . . . [I]n the field of corpus linguistics, scholars . . . determine . . . those meanings that are consistent with common usage,” or “the term’s ordinary or most frequent meaning” based on empirical data rather than personal intuition. Id. at 161.

These tools for empirical analysis are readily available to lawyers and should be used when appropriate. See, e.g., Rasabout, 2015 UT 72, ¶¶ 57–134, (Lee, J., concurring); In re Adoption of Baby E.Z., 2011 UT 38, ¶¶ 86–105, 266 P.3d 702 (Lee, A.C.J., concurring); Brief for the Project On Government Oversight et al. as Amici Curiae Supporting Petitioners, FCC v. AT&T, Inc., 562 U.S. 397 (2011) (No. 09-1279) [link – NG]; 2017 BYU Law Review Symposium, Law & Corpus Linguistics, 2017 B.Y.U. L. Rev. (forthcoming),; Neal Goldfarb, Words, Meanings, Corpora: A Lawyer’s Introduction to Meaning in the Framework of Corpus Linguistics, 2017 B.Y.U. L. REV. (forthcoming),; Stephen C. Mouritsen, The Dictionary is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning, 2010 B.Y.U. L. REV. 1915; Mouritsen, Hard Cases, supra; Daniel Ortner, The Merciful Corpus: The Rule of Lenity, Ambiguity and Corpus Linguistics, 25 B.U. Pub. Int. L.J. 101 (2016); James C. Phillips, Daniel Ortner, & Thomas Lee, Corpus Linguistics & Original Public Meaning: A New Tool to Make Originalism More Empirical, 126 Yale L.J. Forum 20 (2016); Neal Goldfarb, LAWN LINGUISTICS, (last visited May 16, 2017) (discussing many contemporary issues regarding corpus linguistics and the law and providing links to various online tools and resources).


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

Always speaking?

I have an article coming out (link) in the Canadian Journal of Linguistics, in a special issue on time and modality in legal language. The title is “Always speaking”? Interpreting the present tense in statutes. Here’s the abstract:

This article takes a critical look through the lens of linguistics at the “always-speaking” principle in law — an influential principle that is recited in materials on legislative drafting as the justification for using the present tense, adopted in many common-law jurisdictions as a principle of interpretation, and accepted as a foundation for the linguistic analysis of the use of tense in statutes. The article concludes that the principle is an inadequate basis for interpreting or analysing statutes, for at least two reasons: (i) the interpretive results that the principle is intended to support are explainable in terms of widely accepted principles in the analysis of tense, without any need to posit special principles that apply only to statutes; and (ii) the interpretations that would be required if the always-speaking principle were taken seriously would in many cases probably be regarded as unnatural by native speakers of English.


Judge Upholds $2.3M Verdict for Man Wrongly Jailed for 10 Years


Decision in FCC v. AT&T

The Supreme Court has decided FCC v. AT&T, the most recent case in which I filed an amicus brief, which I wrote about here. The issue in the case is whether corporations are protected by the “personal privacy” exemptions in the Freedom of Information Act, and the Court unanimously ruled that (as my brief had argued) they are not. The decision is available here.

In my unbiased opinion, the opinion was influenced by the brief in several respects.

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Personal privacy ≠ corporate privacy

I didn’t intend for the first substantive post here to be devoted to shameless self-promotion, but it’s not every day that a Supreme Court justice gives you a shout-out during an oral argument.

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