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09/26/2017

A Lot More from Carissa Byrne Hessick on Corpus Linguistics
Michael Ramsey

At Prawfsblawg, Carissa Byrne Hessick: Corpus Linguistics Re-Redux.  A long post, it begins:

Since my last post on Corpus Linguistics two weeks ago [ed.: noted here], several things have happened in the corpus linguistics world that I’d like to discuss:  Stephen Mouritsen posted a significant and substantive response to several of my questions.  (His response can be found in this thread, and it is dated September 20).  Neal Goldfarb wrote two lengthy and important posts on his blog [ed.: noted here and here]. And a new corpus linguistics paper about the likely meaning of the word “emolument” as it is used in the Constitution was posted on SSRN [ed.: noted here].  All three of these things have helped me further refine my views on corpus linguistics.  But I remain deeply concerned about using corpus linguistics as a methodology to interpret criminal statutes.

First, let me begin by saying that many law professors have not yet made up their minds about corpus linguistics.  They haven’t made up their minds because it is not clear what corpus linguistics and the law aims to do.  A number of people—especially those who consider themselves textualists—tell me that they see corpus frequency analysis as potentially useful for identifying possible or permissible meanings of an otherwise unclear statutory term.  But that is not what those who are advocating for corpus linguistics in the law say.  They tell us that, while dictionaries can help us identify permissible meanings, corpus linguistics can do more.  Specifically, they say it can help judges identify the ordinary or plain meaning of the statute.  In fact, they (at least occasionally) tell us that the frequency with which a word is used a particular way is information that *must* be taken into account in determining the ordinary meaning of a statutory term.

Plus interesting reactions in the comments from, among others, Ian Bartrum, Asher Steinberg and Neal Goldfarb.  And don't miss Asher Steinberg's earlier comments at Neal Goldfarb's blog (via this link).