The Parable of the Soldier at the Bank

on the proper role of legal corpus linguistics, by C'Zar Bernstein

I recently participated a great conference at corpus linguistics and the Second Amendment, and will post thoughts on that soon. But in the meantime, I wanted to share a parable that I discovered on Twitter and found very helpful, posted by C'Zar Bernstein.

On one occasion an expert in the law stood up to test the Linguist. "Linguist," he asked, "what must I do to correctly interpret this Law?"

"What is written in the Law?" he replied. "How do you read it?"

The Judge answered, "the Law says, 'no person shall bear arms at or near any bank.' This proscribes carrying arms at or near rivers or lakes."

"You have answered incorrectly," the Linguist replied, "this means that no person shall perform any military service at or near financial institutions."

But the Judge wanted the Linguist to justify himself, so he asked, "And how did you come to that conclusion?"

In reply the Linguist said: "I conducted a corpus linguistics analysis of the words 'bear arms' and 'bank.' In the first case, I found that 'bear arms' had an idiomatic sense to do with military service that was used more frequently than the literal sense you favored."

The Linguist continued: "In the second case, I found that the sense to do with financial institutions was used more frequently than the sense to do with bodies of water. Go and hold likewise!"

The Judge replied, "I cannot. My law clerk discovered one piece of historical evidence about this Law in particular that refutes your very general background evidence."

The Judge continued: "The Law's author said in a newspaper article defending the Law, 'the recent public shooting at the river demands action!'" And with this one piece of evidence, the Judge moved the mountain of evidence supplied by the corpus data into the dustbin.

This isn't to say that legal corpus linguistics evidence is never useful or relevant, but it's a nice illustration of the times it is less so.

Comments

[Hank Ferrous]

Is there a typographical error in the last sentence, Prof Baude? The second clause doesn't flow. was 'it's' intended to be 'as' perhaps? Or, I need a good cup of coffee, and will do so posthaste.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Seems fine to me.

[Hank Ferrous]

Yes, on re-read, after caffeine, I was in the clouds on that.

[DaivdBehar]

Any lawyer utterance written above the 6th grade reading level should be void. It fails to give notice. It has a corrupt motive, to force the hiring of worthless lawyers, and is an alien method of oppression, learned from the French conquerors of England.

[MoreCurious]

Do you ever get tire of the moronic crap you write?

[KHP54]

That's what the Mute User function is for -- If everyone who is tired of the repetitive rantings mutes him, then he ends up effectively shadow-banned. That seems like a win-win: he gets to rant; we don't have to listen.

[DaivdBehar]

Someone with brains would take your advice. Did you notice? No rebuttal. Just insults. Do you know why? Because there is nothing stupider than the lawyer occupation.

[BadLib]

True, although I wish that the "mute" option included a "mute this user's blathering and hide all children and grandchildren responses".

I've only muted two users and it has made reading VC comments quite a bit less annoying but I could do without skipping over the responses to their blathering.

(Although, one of those users seems to claim to be a Reverend so I may be struck down by a lighting bolt when I least expect it.)

[Larvell Blanks]

I wonder how many people have muted the same two users? I bet I have.

[DaivdBehar]

Everyone in the country is really tired of the lawyer profession, in utter failure in every self stated goal of every law subject. You people suck.

[DaivdBehar]

My Comment is from high school AP history. Your 1L erased that from your mind. It made you stupider than a kid in Life Skills Class, learning to eat with a spoon. That kid has more common sense, and would make a much better Supreme Court Justice than the people now on the Court.

No one is stupider than the lawyer. No lawyer is stupider than an Ivy indoctrinated lawyer. No Ivy indoctrinated lawyer is stupider than a Supreme Court Justice. Look at what happened to the IQ of Eugene Volokh. Tragedy. A horrible crash with a month in a coma would have been less damaging than 1L.

[Tan]

The parable speaks not to the use of corpus linguistics but the statistic that legal corpus linguists choose to measure. Instead of beginning with an acontextual inquiry into the meaning of "bank" and then accounting for context (the drafter's statement), they should begin with identifying the subset of data points that correspond to the drafter's statement and identify the most frequent use of bank among those data points (what does 'bank' usually mean when uttered in the context of rivers and other water bodies?). That would solve the problem posed by this parable, and it would close the gap between with Lee and Mouritsen's statistical techniques and their declared intent to figure out "the sense of a word or phrase that is most likely implicated in *a given linguistic context*" (emphasis obviously mine)

[Tan]

Excuse the typo *the gap between Lee and Mouritsen's statistical techniques . . .

[SKofNJ]

I don't get why what the legislator said after-the-fact should have mattered. It should be what the law says that matters. What if he had said that when he wrote the word bank he meant the sides of pool tables? Also, is this a legislature where getting just one vote for a bill gets that bill passed? If not, why should one legislator's view carry that much weight?

[Aladdin's Carpet]

The point is that where words are homonyms, it is best to pick what was meant than the particular meaning used most often. Language is to be read in context.

Even if you ignore legislative intent entirely, which I think is perfectly acceptable to do, you must consider context in determining meaning.

[SKofNJ]

I can understand using legislative intent to interpret a statute when a law is accompanied by an official legislative statement of the intent of the statute. That often happens in NJ, although usually the statement is so bland that it is useless. I cannot understand taking a single legislator's after-the-fact assertion as to his particular intent in proposing the law at issue and accepting that as a guide to the statute's meaning. Even if he was telling the truth, a proposition that cannot be established, as to his intent at the time the bill was proposed or passed, he is just one legislator among the many who voted to pass the law.

[KenveeB]

Or the judge finds it void for vagueness because there are multiple possible meanings, and the legislature can rewrite it to be clear. Such as "banks or other financial institutions" or including a definition of "bank" to mean "the sides of a river."

[Tan]

That seems like a terrible solution. So many words are ambiguous in a contextual vacuum but pretty clear with even a little bit of context (as here). To strike down portions of the U.S. Code every time a word has another meaning out there is pretty pointless.

Also, adding more words to a statute as you suggest usually introduces additional ambiguity.

[Vandalia]

The only context is the statement by the legislator.

Every other interpretation is equally plausible.

[Dilan Esper]

You are absolutely correct, Tan.

Indeed, while the word "nihilism" is thrown around way too much, a truly nihilist position is playing "gotcha" with the Legislature. Laws, like contracts, are to be given reasonable interpretations to make their provisions operative. The point is to effectuate what Congress wanted, not to find some technical reason to disobey Congress.

Political extremists who just hate government love that "rule" of construction, though it's worth nothing that even pretty strict constructionists like Scalia all reject it.

[Dan Schiavetta]

Will Baude (and anyone who recites this "parable") reveals his ignorance of the history of the Second Amendment debate. The lesson it teaches demolishes one of the pillars of the "Standard Model", wherein Richard Holbrook argued that because one of the dictionary definition of "bear arms" includes "bear arms in a coat", "coat of arms" means a jacket which pockets enough to fit a gun in. He really did argue that.

[Dan Schiavetta]

Sorry -- meant to say Stephen Halbrook.

[Dilan Esper]

Richard Holbrook took a break from negotiating peace in the Balkans to advance a ridiculous interpretation of the Second Amendment!

[Dan Schiavetta]

Horrible mistake. Richard Holbrook was a justly honored diplomat. Stephen Halbrook was a gun manufacturer stooge.

[dwb68]

huh? Who argued what? Richard Holbrook argued that to bear arms means to bear arms in a coat?

[Dan Schiavetta]

http://cardozolawreview.com/wp-content/uploads/2018/08/FINKELMAN.37.2.pdf

See p. 629.

[WJack]

Might want to take another look, page 29 does not say what you think it says.

[dwb68]

No. You should track down the actual original Halbrook references, not make an out of context argument based on a few words. Kind of ironic, Finkleman accusing other people of straw man arguments and taking things out of context.

Finkleman is wrong on so many things I don't even know where to start. The term "militia" is actually defined in 10 U.S. Code § 246, and has been for centuries. A fact he conveniently omits. Literally, centuries, and updated infrequently. It basically encompasses all men between 17 and 64, and female members of the National Guard. Although I seriously doubt anyone would strike down someone's 2nd amendment right to self defense because they are a female or over 65. He also conveniently omits early Congressional legislation that required literally everyone to buy a musket, rifle, and ammo. It was the first Federal Congressional mandate, and was (ironically) used as an example to support the constitutionality of federal mandate in Obamacare. Hey if the Feds can mandate everyone buy a gun in 1791, they can mandate insurance. You know, like that. lol.

[Sebastian Cremmington]

Except when tyranny reared its ugly gaunt horse face in 1861 individuals with guns did not rise up to resist…Jefferson Davis organized an army and used arms supplied by state militias and confiscated from federal forts.

[dwb68]

Except that Harriet Tubman and most members of the underground railroad were armed, and could not do what they needed to do otherwise. The Winchester rifle was also a staple over the fireplace while the KKK was burning crosses.

The thing about tyranny, is that its like the devil, it usually comes in an unexpected form. Abuse by the police is a form of tyranny. "Defund the police but don't buy guns to protect yourself" is not the kind of message that resonates.

[Sebastian Cremmington]

The KKK were the unorganized militia! The notion “militia” refers to the “unorganized militia” (which doesn’t even exist) and “state” refers to “country” (our country is named United STATES of America) and “well regulated” is meaningless (why even include it?)…are some of the dumbest notions anyone has ever thought up.

[Dan Schiavetta]

“It’s hard to make a man understand something when his salary depends on his not understanding it.@

[Dan Schiavetta]

You are going to great lengths to avoid my pointing out Halbrook’s argument.

[Sebastian Cremmington]

Actually “quartering” has something to do with coat of arms as well…so maybe he’s on to something. 😉

[John F. Carr]

A bank vole ate my life savings.

[dwb68]

I read the "Corpus Linguistics" amicus brief in a number of 2nd Amendment cases, I found it to be as useful as augury.

The problem with the English language is that so many words have multiple meanings, some words even have the opposite meaning (''contronym") depending on context. There are so many contronyms in English, we even need a word for it. "Enjoin" "table" and "sanction" some two good ones.

You can even use them in sentences. I weathered the windy weather, which rocked the fine rock into fines.

[dwb68]

The one that always gets me is "annuals," which really aren't any such thing.

These posts could be titled "Contronym Apology" - except that I am not apologizing. Or maybe I am. You decide!

[dwb68]

Maybe corpus linguists strike out in search of truth, but just strike out in finding it.

[arch1]

Cleave.

[Sebastian Cremmington]

All one has to know is the HISTORY of the Bill of Rights—because the Founding Fathers had specific grievances against the British. So the 3rd Amendment outlaws soldiers being chopped up into 4 pieces in a house because the British, for shits and giggles, would chop up soldiers in American homes to get blood and guts everywhere and ruin homes. The British were sick and evil people.

[Larvell Blanks]

And then the Linguist replied, "Yes, but later in the article, a bunch of other legislators were quoted as saying, 'I wish the author of the bill had been more clear about his subjective reason for submitting the bill for our consideration. We only read the text of the bill before voting, and we naturally believed, like most ordinary people would, that 'bank' referred to a financial institution, since that makes more sense as a place where you would want to prohibit firearms. If we had wanted to prohibit guns near rivers, we would have said so.'"

[John F. Carr]

Just to be certain, construe it to prohibit bearing arms at financial institutions and adjacent to bodies of water. Economical with words, those drafters. Fine Yankees, they must have been.

[Randal]

I'm with you. I have no sympathy for the legislator here! You get the law you write. If you're this terrible of a writer, perhaps do something that requires less writing than drafting legislation does.

Anyone relying on this law would read "bank" to mean "financial institution." So that's what it means.

Otherwise, why even write down laws? Just have the courts rule based on the known attitudes of the current Congress. Congress doesn't have to vote on anything, they can just individually pontificate, and judges can sort it out from there. ("Based on their public writings, the majority of legislators would find you guilty of unlawful possession, so you are.")

[Dilan Esper]

I’m with you. I have no sympathy for the legislator here! You get the law you write.

See my comment to Tan, above. The courts' are not a professor, putting the legislature to a test. Their job is to obey the legislature's mandate, unless there is a constitutional provision that prohibits what the legislature has done. There is no judicial power to say "ha ha ha, you didn't write the statute PRECISELY right, therefore we're going to ignore Article I of the Constitution and refuse to enforce it". And people who advance that notion are dangerous anti-government extremists who just want to thwart the legislature for no reason.

The courts' power begins and ends with giving laws a reasonable construction. Not trying to stop them from taking effect.

[Randal]

I totally agree, the courts should apply a reasonable construction. I would go even stronger and say they should apply the most objectively reasonable construction.

Here, that construction is "financial institution." The construction should not depend on a cherry-picked random tweet by an individual legislator as the judge in the parable does.

The legislature is also not allowed to play gotcha with the public by writing misleading laws and then saying, "What we _really_ meant was river bank, even though we just wrote 'bank.' So you're a felon now because you reasonably thought we meant financial institution."

[Dilan Esper]

Legislatures aren't including ambiguity because they are being dishonest.

[Randal]

Courts aren't resolving the ambiguity in ways you don't like because they're being dishonest.

Except for Alito. He's straight-up evil. He'll gladly seize on any minor ambiguity to impose his demonic will upon the Nation. I agree with you that that's not ok. Like I said, courts should stick to the most objectively reasonable construction. Alito doesn't do that, and he likes it.

[Squirrelloid]

I don't entirely agree. If the law doesn't give fair notice as to what is prohibited, the court should not strike on some construction to save the law. If the public could not reasonably know what to avoid doing, the law should be a nullity.

Obviously there's a large range of potential ambiguities here, some of which should be saved by determining what the most reasonable construction is, and some should be nullified for being unclear. Where to draw that line is going to be subjective. But I can't support coming down on 'all laws must be enforced *somehow*, because the legislature wrote them'. The public cannot have a duty to obey a law it cannot reasonably interpret with some degree of certainty.

[MatthewSlyfield]

And then there was the dyslexic man who after being arrested for mounting automatic weapons on wild animals declared that he had the right to arm bears.