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08/09/2017

Justice Thomas Lee and Stephen Mouritsen on Corpus Linguistics and Judicial Interpretation
Michael Ramsey

Justice Thomas Lee and Stephen Mouritsen are guest-blogging at The Volokh Conspiracy on corpus linguistics.  Here is their first post: Judging Ordinary Meaning with Corpus Linguistics. From the introduction:

We are grateful to Eugene Volokh for the invitation to discuss corpus linguistics generally and our forthcoming article, “Judging Ordinary Meaning,” in particular.

Corpus linguistics is an empirical approach to the study of language that involves large, electronic collections of texts known as corpora (the plural of corpus). Corpus linguists draw inferences about language from data gleaned from real-world language in its natural habitat — in books, magazines, newspapers and even transcripts of spoken language. Through corpus analysis we can test our hypotheses about language through rigorous experimentation with observable and quantifiable data and arrive at results that are replicable and falsifiable.

In our article we rely on the (comparatively) new tool of corpus linguistics to examine a very old problem — how to discover the “ordinary meaning” of a legal text.

And in conclusion:

Using the tools of a linguistic corpus, we can measure the comparative frequency of a given sense of a given word in given context. We can design a corpus search that takes into account the syntactic and semantic context of the word or phrase in question. We can search for sample sentences that share similar pragmatic contexts with the text under examination. We can create linguistic corpora to model the speech or writing of a wide variety of speech communities and registers, and we can build corpora from the surviving texts from any period in history.

By incorporating corpus methods into the search for ordinary meaning, we can turn a largely intuitive and opaque inquiry into an empirical and transparent one.

Writing in 2011, language commentator Ben Zimmer stated (with some qualification) that “the corpus revolution promises to put judicial inquiries into language patterns on a firmer, more systematic footing.” We agree. And over the course of the coming week, we look forward to outlining the promise of corpus linguistics for questions of legal interpretation, as well as some important limitations.

Their second post:  Corpus linguistics and a dictionary-based jurisprudence. From the introduction:

We’re talking this week about the application of corpus linguistics to questions of legal interpretation and the search for the ordinary meaning of the words in a statute. Before diving into the corpus tools that can be brought to bear on this question, it is worth highlighting one of the existing (and increasingly common) approaches to finding ordinary meaning — the citation of general-use, unabridged English dictionaries.

The increasing reliance on dictionaries in legal interpretation has been well documented (herehere and here). But dictionaries cannot tell us the “ordinary meaning” of words in their statutory context. This is not a failing of dictionaries or the lexicographers engaged in the harmless drudgery of creating them. As Professors Henry Hart and Albert Sacks observed in their influential “Legal Process” lectures:

A dictionary, it is vital to observe, never says what meaning a word must bear in a particular context. Nor does it ever purport to say this. An unabridged dictionary is simply an historical record, not necessarily all-inclusive, of the meanings which words in fact have borne …

More to come.