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09/11/2017

Carissa Byrne Hessick on Corpus Linguistics
Michael Ramsey

At Prawfsblawg, Carissa Byrne Hessick (UNC): Corpus Linguistics and Criminal Law.  From the introduction:

In January of 2017, the Federalist Society hosted a panel on statutory interpretation at its annual faculty conference.  The panel promoted a new method for statutory interpretation: corpus linguistics.  Among the panelists was Thomas Lee, a former law professor at BYU who now sits on the Utah Supreme Court.  Justice Lee has used corpus linguistics in more than one opinion, and the BYU Law School has been promoting corpus linguistics through conferences.

It is easy to see why corpus linguistics is appealing.  It offers a new twist on textualism.  It promises to make the initial “plain” or “ordinary” meaning question of textualism a data driven inquiry.  At present, textualist judges rely on their own linguistic intuitions about the plain/ordinary meaning of a statutory term.  And if a judge finds that a statutory term’s meaning is plain, then she will not look at other non-textual sources, such as legislative history or certain canons of statutory construction.  The problem is, judges often disagree over what the plain or ordinary meaning of a term is.  As a result, textualism sometimes looks unpredictable or subjective.

Corpus linguistics tells judges to answer the plain/ordinary meaning question with a linguistics database search.  The corpus linguistics databases allow judges and lawyers to search for words to see how often they are used certain ways. And if the database says a term is more often used as X than Y, then corpus linguistics tells us that is the “ordinary meaning.” In other words, corpus linguistics promises us predictable and objective answers to textualism’s most important question.

... After quite a bit of writing and reflection, I have come to the conclusion that corpus linguistics is not an appropriate tool for the interpretation of criminal statutes.

I lay my concerns out more fully in this short essay.

Plus in the comments, Orin Kerr suggests:

I would think corpus linguistics has value to an originalist engaging in constitutional interpretation but less value to a textualist engaging in statutory interpretation. An originalist engaging in constitutional interpretation may want to know the original public meaning of a particular word or phrase, which is generally a matter of public usage in some time in the past. A study of public sources from that period might help illuminate that meaning to a modern reader, and a more rigorous study of those sources might give the modern reader greater confidence that a particular interpretation was the one the public would have taken at the time. On the other hand, I don't think of textualist approaches as generally involving the same act of reconstructing a public meaning. I think of textualism more a matter of understanding how a careful law-trained reader of the statutory text -- one versed in precedents and court rulings about that phrase -- thinks that language means. Given that, I'm less sure that a corpus linguistics approach can shed light on the meaning of a statute.