Language Log ? An empirical path to plain legal meaning

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Stephen Mouritsen, "Hard Cases and Hard Data: Assessing Corpus Linguistics as an Empirical Path to Plain Meaning", Columbia Science & Technology Law Review, 2/25/2012:

The Plain Meaning Rule is often assailed on the grounds that it is unprincipled?that it substitutes for careful analysis an interpreter?s ad hoc and impressionistic intuition about the meaning of legal texts. But what if judges and lawyers had the means to test their intuitions about plain meaning systematically? Then initial linguistic impressions about the meaning of a legal text might be viewed as hypotheses to be tested, rather than determinative criteria upon which to base important decisions.

Mouritsen's abstract continue:

There exists very little legal scholarship on corpus linguistics?the study of language function and use through large, electronic linguistic databases called corpora?and the role that corpus methods might play in legal interpretation. This omission becomes more and more striking as scholars and jurists (and even the United States Supreme Court) have found themselves persuaded by corpus-based arguments.

This Article argues that the plain or ordinary meaning of a given term in a given context is an empirical matter that may be quantified through corpus-based methods. These methods, when applied to questions of legal ambiguity, present significant advantages over existing empirical approaches to plain meaning and over the prevailing intuition-based interpretive approach of many courts. Because large, sophisticated linguistic corpora are widely available and easy to use, and because corpus methods offer a more principled and systematic alternative to the impressionistic interpretation of legal texts, corpus linguistics may one day revolutionize the process of legal interpretation.

Mouritsen's paper will enlighten legally-naive linguists and philosophers about the way that legal scholars and theorists think about the interpretation of legal language; and it will enlighten linguistically-naive legal scholars about the new opportunities for using corpus-search methods to evaluate intuitions about linguistic meaning.

A simple application of this concept was featured in Richard Posner's opinion in United States v. Costello, discussed in an earlier post. ? Other LL posts on this general topic include:

"What did it mean to 'bear arms' in 1791?", 6/18/2008
"Bearing arms in LION", 6/21/2008
"The connotations of the F-word", 11/4/2008
"What does the F-word contribute?", 11/5/2008
"Q: Do corporations have "personal privacy"? A: No.", 3/1/2011
"Now on The Atlantic: The corpus in the court", 3/4/2011
"Corpus linguistics in a legal opinion", 7/20/2011
"The Corpus in the Court . . . again", 12/13/2011

Considering the large number of posts that we've devoted to other topics, and even to the category Language and the Law, this is not much ? the relative frequency of posts on corpus-based legal reasoning will no doubt increase in the future.

But it's important to note that corpus-based methods, here as elsewhere, are a source of evidence for linguistic arguments, not a substitute for linguistic arguments. Without an understanding of the categories, structures, and interpretive issues involved in a given question, corpus evidence can lead you as far astray as dictionary quotations can.

This does not negate the truth and importance of Stephen Mouritsen's point about the role of usage evidence in legal reasoning about the meaning of laws, policies, contracts, and so forth. As Horace suggested more than two millennia ago, the arbiter of linguistic meaning is usage, "quem penes arbitrium est et ius et norma loquendi" ("in the power of whose judgment is the law and the standard of language"); and modern computational methods give us increasingly easy access to increasingly sophisticated surveys of increasingly large collections of increasingly varied text and speech. But I would also emphasize the importance of organizing and interpreting usage evidence in a linguistically informed way.

March 3, 2012 @ 9:44 am ? Filed by Mark Liberman under Language and the law

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Source: http://languagelog.ldc.upenn.edu/nll/?p=3819

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