Stefan Gries & Brian Slocum: Ordinary Meaning and Corpus Linguistics
Stefan Th. Gries (UCSB, Linguistics) and Brian G. Slocum (University of the Pacific - McGeorge School of Law) have posted Ordinary Meaning and Corpus Linguistics (Brigham Young University Law Review, forthcoming 2018) on SSRN. Here is the abstract:
This paper demonstrates how corpus analysis, and similar empirically-based methods of language study, can help inform judicial assessments about language meaning. We first briefly outline our view of legal language and interpretation in order to demonstrate the importance of the ordinary meaning doctrine, and thus the relevance of tools such as corpus analysis, to legal interpretation. Despite the heterogeneity of the current judicial interpretive process, and the importance of the specific context relevant to the statute at issue, conventions of meaning that cut across contexts are a necessary aspect of legal interpretation.
Indeed, such conventions are an important aspect of the sequential nature of legal interpretation, where a court first determines the ordinary meaning of the textual language and then:
(1) accepts that meaning as the legal meaning of the text,
(2) rejects it in favor of an unordinary meaning, or
(3) precisifies it in some way because the ordinary meaning is indeterminate in relation to the interpretive question before the court.
Nevertheless, the constituent question of what makes some permissible meaning the ordinary meaning is an inherently normative issue that courts typically, and incorrectly, treat as self-evident. Corpus analysis can provide valuable insights about language usage but cannot by itself resolve normative issues.
We demonstrate the potential of corpus analysis (and similar empirically based methods of language analysis) through the study of two rather infamous cases where the reviewing courts made various general claims about language meaning. In both cases, United States v. Costello and Smith v. United States, the courts made statements about language that are contradicted by corpus analysis. We also demonstrate the potential of corpus analysis through Hart’s no-vehicles-in-the-park hypothetical. A discussion of how to approach Hart’s hypothetical shows the potential but also the complexities of the kind of linguistic language analyses that such situations and scenarios require. Corpus linguistics can yield results that are relevant to legal interpretation, but the necessary analysis is complex and requires training. We conclude that while it is doubtful that judges will themselves become proficient at corpus linguistics, they should be receptive to the expert testimony of corpus linguists in appropriate circumstances.