Category Archives: Uncategorized

Words, Meanings, Corpora: A Lawyer’s Introduction to Meaning in the Framework of Corpus Linguistics

On Friday I will be presenting a paper at a conference at Brigham Young University Law School on law and corpus linguistics. Here is the description from the conference website:

Building on the 2016 inaugural Law and Corpus Linguistics Conference, the 2017 BYU Law Review Symposium, “Law & Corpus Linguistics” brings together legal scholars from across various substantive areas of scholarship, prominent corpus linguistics scholars, and judges who have employed corpus linguistics analysis in their decisions.

Although there’s a link on the webpage for the papers that will be presented, they are password-protected. However, my paper is posted on SSRN and can be downloaded there. It is titled Words, Meanings, Corpora: A Lawyer’s Introduction to Meaning in the Framework of Corpus Linguistics, and the abstract is below the fold.

Continue reading

The rule of the last antecedent is REALLY old [updated]

As I’ve said previously, the rule of the last antecedent is derived from the Latin maxim ad proximum antecedens fiat relatio nisi impediat sententia (“Let reference be to the nearest antecedent, unless the meaning hinders”). When I last discussed that maxim, I said that it had appeared in English case reports at least as long ago as the early 1600s.

I’ve now traced the maxim back another 200 years, more or less, to a case report from 1431. Or should I say, 14FUCKING31, if you’ll pardon my Law French.

Here is a link to an image of the page, and here is a link to an English-language summary — scroll down to “Language Notes” and it’s the next line. And here is an image of the page where the maxim is cited:

year-book-1431

The maxim appears at lines 7-8.

To put the date in perspective, this predates Gutenberg’s Bible. And surely this was not the first use of the maxim; for all we know, it may have originated hundreds of years earlier — possibly in Roman law or Biblical scholarship. Unfortunately, I’m not optimistic about the possibility of finding earlier uses, since they would by definition exist only in manuscript form.

As for the provenance of the case report in which the maxim appears: It is part of the Year Books, which were England’s earliest law reports:

The Year Books are the law reports of medieval England. The earliest examples date from about 1268, and the last in the printed series are for the year 1535. The Year Books are our principal source materials for the development of legal doctrines, concepts, and methods from 1290 to 1535, a period during which the common law developed into recognizable form. More than 22,000 individual reports or ‘pleas’ have been printed, and others remain in manuscript. This database indexes all year book reports printed in the chronological series for all years between 1268 and 1535, and many of the year book reports printed only in alphabetical abridgements. Of these reports, all 6,901 from 1399 through 1535 have been fully indexed and paraphrased in this database. [Link.]

The image above is taken from the Vulgate edition of the Year Books, which according to Wikipedia “appeared in a series of volumes between 1678 and 1680, and which became the standard edition consulted by practising lawyers.”

h/t to Prof. David Seipp of the Boston University School of Law, for the database whence this small piece of the Middle Ages found its way to the 21st century.

More on the dueling canons

After further thought about my dueling-canons post, I have a few additional points that I need make. And also a special offer for law-review staff members.

First, I have to make a correction. I spoke too broadly when I said that Reading Law didn’t cite anything in the prior caselaw to show that there existed such a thing as the Series-Qualifier Canon. The book does cite cases stating that when an adjective appears before a series of nouns, it is generally understood to modify all the items. It also cites cases that can be read to state an analogous proposition with respect to adverbs and verbs. And it cites cases that reach results consistent with those propositions, but without making any broad generalizations. So I shouldn’t have said there was no support in the caselaw for the Series-Qualifier Canon as it relates to modifiers that precede the items they modify.

However, the situation is different as to modifiers that follow the items they modify. In the cases that are cited that involved such constructions, the decision was based narrowly on the specifics of the particular statute, not on general statements about how such constructions are generally understood. In fact two of the cases cited the Rule of the Last Antecedent, but interpreted the modifier as having a wider scope based on other factors—as the Rule recognizes is possible. So not only do those cases not support the Series-Qualifier Canon with respect to postmodification, but they provide further evidence that the carve-out from the Nearest-Reasonable-Referent Canon is not justified by the caselaw.

Continue reading

But I did it, though, because he lied / Because he took you for a ride / And because time was on his side / And because I…

IWantYouBobDylanI filed another amicus brief in the Supreme Court last week that I regard as an example of using linguistics in legal argument. Although the brief contains no discussion of linguistics, it was enabled by the fact that I have learned, to a certain extent, how to think like a linguist.

The case is University of Texas Southwestern Medical Center v. Nassar, and it deals with employment discrimination. The linguistic issue that the brief deals with is the interpretation of prohibitions against discrimination “because of [the employee’s] age” or “because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” In particular, does the use of the word because in these provisions require the plaintiff to prove that the prohibited factor was what’s known in the law as a “but for” cause of the adverse action? Or is it enough for the plaintiff to prove that the prohibited factor was one of several motivations for the action, any one of which would have been sufficient on its own?

Continue reading

The Recess Appointments Clause: LAWnLinguistics goes to court

My post on the Recess Appointments Clause was cited in a supplemental letter brief that was filed by the Justice Department in a Recess-Appointments case pending in the U.S. Court of Appeals (page 11, footnote 10).

The letter brief also makes several arguments paralleling what my post said; whether those arguments were taken from the post rather than developed independently, I can’t say. (Though I certainly know what I choose to believe.)

H/t Legal Times Blog via HowAppealing.

Whoa

I’m late in learning about this; it apparently went public  back in May, but doesn’t seem to have attracted much blogospheric notice.

Mark Davis, the proprietor of the Corpus of Contemporary American English (COCA) and the Corpus of Historical American English (COHA), has made another corpus available via the same interface as COCA and COHA. This one’s a little bit bigger though.

155 billion words, 62 billion of them the 1980s-2000s.

Billion with a b.  Bill-yun.

Update: Apparently some of the features of the interface aren’t available yet.

Sherley v. Sebelius: What does “research” mean?

This is the second installment of my look at the recent court of appeals decision in Sherley v. Sebelius, the litigation over federal funding of research on human embryonic stem cells (hESCs). The first installment, which sets the stage, is here. And before I begin, let me repeat that I represent the Genetics Policy Institute as an amicus curiae in support of the government in the case, and that some of what I say here will be adapted from my brief.

I ended my last post by noting that one of the points of disagreement between the majority and the dissent was about whether the word research could be understood to denote a “discrete project.” The majority concluded that the word as used in the Dickey-Wicker Amendment could in fact be understood in that way—an understanding under which the focus is on the specific work for which funding is sought:

NIH funding decisions are forward-looking, requiring the NIH to “determine  whether what is proposed to be funded meets with its requirements.” Therefore, a grant application to support research that includes the derivation of stem cells would have to be rejected….The definition of research is flexible enough to describe either a discrete project or an extended process, but this flexibility only reinforces our conclusion that the text is ambiguous. [paragraph break deleted]

Continue reading