The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I'm delighted to report that Utah Supreme Court Justice (and former BYU professor) Thomas Rex Lee and his coauthor Stephen Mouritsen (an associate at Parr Brown Gee & Loveless and a nonresident research fellow at the University of Chicago Law School) will be guest-blogging this week about corpus linguistics and the law, based on their forthcoming Yale Law Journal article, "Judging Ordinary Meaning." Both are pioneers in this field—Mouritsen wrote the first extended treatment of corpus linguistics in a law review article ("The Dictionary Is Not a Fortress" (BYU L. Rev. 2010)), and Lee wrote the first extended, self-conscious application of corpus linguistics in a court case ("In re Adoption of Baby E.Z." (Utah 2011)); other authors had occasionally used similar tools in the past, but without the detail and metholodogical reflection present in those works. I've read their arguments and find them powerful and intriguing; here is the abstract of their new piece:
Judges generally begin their interpretive task by looking for the ordinary meaning of the language of the law. And they often end there—out of respect for the notice function of the law or deference to the presumed intent of the lawmaker.
Most everyone agrees on the primacy of the ordinary meaning rule. Yet scholars roundly bemoan the indeterminacy of the communicative content of the language of the law. And they pivot quickly to other grounds for interpretation.
We agree with the diagnosis of important scholars in this field—from Richard Fallon and Cass Sunstein to Will Baude and Steve Sachs—but reject their proposed cures. Instead of setting aside the threshold question of ordinary meaning we seek to take it seriously. We seek to do so through theories and methods developed in the scholarly field designed for the study of language: linguistics.
We identify theoretical and operational deficiencies in our law's attempts to credit the ordinary meaning of the law and present linguistic theories and tools to assess it more reliably. Our framework examines iconic problems of ordinary meaning—from the famous "no vehicles in the park" hypothetical to two Supreme Court cases (United States v. Muscarello and Taniguchi v. Kan Pacific Saipan) and a Seventh Circuit opinion of Judge Richard Posner (in United States v. Costello). We show that the law's conception of ordinary meaning implicates empirical questions about language usage. And we present linguistic tools from a field known as corpus linguistics that can help to answer these empirical questions.
When we speak of ordinary meaning we are asking an empirical question—about the sense of a word or phrase that is most likely implicated in a given linguistic context. Linguists have developed computer-aided means of answering such questions. We propose to import those methods into the law of interpretation. And we consider and respond to criticisms of their use by lawyers and judges.
I very much look forward to their posts!