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10/23/2017

Larry Solum on Corpus Linguistics
Michael Ramsey

At Legal Theory Blog, Legal Theory Lexicon: Corpus Linguistics.  From the introduction: 

...  How do we determine the meaning of legal texts?  One possibility is that judges could consult their linguistic intuitions.  Another possibility is the use of dictionaries.  Recently, however, lawyers, judges, and legal scholars have discovered a data-driven approach to ascertaining the semantic meaning of disputed language.  This technique, called "corpus linguistics," has already been used by courts and plays an increasingly prominent role in legal scholarship.  This entry in the Legal Theory Lexicon provides a basic introduction to corpus linguistics.  ...

Why has corpus linguistics become important in contemporary legal theory and practice?  The answer to that question is complicated.  One important impetus is rooted in the revival of formalism in general legal theory: that revival is reflecting in the developments in the law and theory of both statutory and constitutional interpretation.  Statutory interpretation in the 1960s and 1970s was dominated by approaches that emphasized legislative intent and statutory purpose, but in the last three decades, textualism (or "plain meaning textualism") has been on the ascendance.  Similarly, the living constitutionalism once held hegemonic sway over the realm of constitutional interpretation, but in recent years, originalism has become increasingly important in both the academy and the courts.

...

During the period when living constitutionalism and purposivism were the dominant approaches to the interpretation and construction of statutes, the precise linguistic meaning of statutory and constitutional provisions was relatively unimportant.  Because courts did not consider themselves bound by the meaning of the words and phrases, fine distinctions about meaning were much less important than the identification of the purposes and values that would determine the outcome of constitutional and statutory disputes.  But with the turn to formalist approaches like originalism and textualism, questions of meaning became significantly more important.

One approach to conventional semantic meanings relies on linguistic intuitions and dictionary definitions.  But this method has important limitations.  Linguistic intuitions are not infallible, and they may be affected by motivated reasoning.  Dictionary definitions are based on limited data collection and subjective judgments by the lexicographers who compile the dictionaries.  This raises the question whether there are better, more accurate, and more objective approaches.

The gradual ascent in the importance of the linguistic meaning of legal texts occurred at roughly the same time as another important development in the legal academy--the rise of interdisciplinary approaches in general and of empirical legal studies in particular.  This focus on empirical and interdisciplinary methods lead legal scholars (especially those with training in linguistics and the philosophy of language) to corpus linguistics--a data driven approach to linguistic meaning.

In sum, the turn to corpus linguistics in law is (at least in part) a result of the new emphasis on the meaning of legal texts (formalism) and the turn to interdisciplinary methods (empirical legal studies and linguistics).

Further discussion follows under the headings "How Does Corpus Linguistics Work?", "Application of Corpus Linguistics to Legal Interpretation", and "Limitations on Corpus Linguistics".  In conclusion:

The introduction of a new methodology to legal theory is a rare event, but corpus linguistics is one of the black swans.  It is still early days, but the use of corpus methods has already begun in earnest--both in the courts and the academy.  The Bibliography provides many of the key sources in a literature that still can easily be read in just a few days.

I have been posting frequently on corpus linguistics because  (as Professor Solum's post indicates) it is the "new kid in town."  I am less sure of its staying power.  It remains to be seen whether, especially as it applies to constitutional originalism, it produces results that are plausible yet contrary to the outcomes indicated by traditional originalist sources.  So far I have not seen that it does, but I remain open to persuasion.