February 18, 2020 Appellate Issues | Winter 2020

Thinking Like a Linguist

By Howard J. Bashman

Justice Elena Kagan observed in 2015, while delivering the Antonin Scalia Lecture at Harvard Law School, that thanks to Justice Scalia we are all textualists now. Yet focusing on the text to determine the disputed meaning of words and phrases, whether they are found in a contract, a statute, or a federal or state Constitution, only begins to describe the inquiry that advocates and courts must undertake, rather than the method or methods that are best suited for resolving that inquiry.

By applying corpus linguistics, lawyers can look beyond the dictionary to examine ordinary word use in a quest to find the most likely meaning of disp

By applying corpus linguistics, lawyers can look beyond the dictionary to examine ordinary word use in a quest to find the most likely meaning of disp

Maskot/Maskot Collection via Getty Images

Historically, the method that most advocates and jurists use when seeking to determine the meaning of disputed contractual, statutory, or constitutional text consists of grabbing a dictionary or dictionaries from the shelf and searching for the most likely definitions of the word or words at issue. Recognizing the potential shortcomings of that approach, another method for determining the meaning of disputed text in legal disputes gained prominence during the decade that just concluded. That method is known as corpus linguistics.

The 2019 AJEI Summit included a breakout program titled “Thinking Like a Linguist” that offered an introduction to the field of linguistics and its past and potential future uses in resolving legal disputes. In July 2019, in Wilson v. Safelite Group, Inc., 930 F.3d 429 (6th Cir. 2019), two judges serving on the U.S. Court of Appeals for the Sixth Circuit issued concurring opinions debating the likely usefulness of corpus linguistics in seeking to find the intended meaning of disputed statutory language. Judge Amul R. Thapar wrote in favor of doing so in his separate opinion, while Judge Jane B. Stranch in her separate concurring opinion expressed substantial skepticism about the usefulness and propriety of relying on corpus linguistics for that purpose.

Linguistics, broadly speaking, is defined as the scientific study of language and its structure. As Judge Thapar explained in his separate opinion in Wilson:

This tool — corpus linguistics — draws on the common knowledge of the lay person by showing us the ordinary uses of words in our common language. How does it work? Corpus linguistics allows lawyers to use a searchable database to find specific examples of how a word was used at any given time. State v. Rasabout, 356 P.3d 1258, 1275–76, 1289 (Utah 2015) (Lee, A.C.J., concurring in part and concurring in the judgment). These databases, available mostly online, contain millions of examples of everyday word usage (taken from spoken words, works of fiction, magazines, newspapers, and academic works). See, e.g., Corpus of Contemporary American English, BYU, https://corpus.byu.edu/coca/help/texts.asp (listing types of sources); Corpus of Historical American English, BYU, http://www.english-corpora.org/coha/. Lawyers can search these databases for the ordinary meaning of statutory language like “results in.” The corresponding search results will yield a broader and more empirically–based understanding of the ordinary meaning of a word or phrase by giving us different situations in which the word or phrase was used across a wide variety of common usages. See Lee & Mouritsen, [Judging Ordinary Meaning, 127 Yale L.J. 788,] 831 [2018] (“Linguistic corpora can perform a variety of tasks that cannot be performed by human linguistic intuition alone.”). In short, corpus linguistics is a powerful tool for discerning how the public would have understood a statute’s text at the time it was enacted.

Wilson, 930 F.3d at 440 (Thapar, J., concurring in part and concurring in the judgment).

Law professor Lawrence Solan is credited with being perhaps the first to draw attention to the fact that corpus linguistics might be useful in interpreting legal texts in his law review article titled The New Textualists’ New Text, 38 Loy. L.A. L. Rev. 2027 (2005). Later, in 2010, Stephen Mouritsen published a note in the Brigham Young University Law Review titled The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning, 2010 BYU L. Rev. 1915. The note was published while Mouritsen was serving as a judicial law clerk to Justice Thomas Rex Lee of the Utah Supreme Court. Perhaps then it was not much of a coincidence when Justice Lee became the first appellate judge to argue in favor of using corpus linguistics to construe a disputed legal text in a separate concurring opinion that he issued in 2011. Even more recently, Justice Lee and Mouritsen combined to write an article for the Yale Law Journal about using linguistics to determine meaning titled Judging Ordinary Meaning, 127 Yale L.J. 788 (2018).

Mouritsen, now an attorney in private practice who has continued to research and write about using corpus linguistics as a tool to resolve disputed textual meaning in litigation, was one of the three speakers who participated on this AJEI Summit panel. The other two speakers were Neal Goldfarb, an attorney who has published numerous articles on the subject and has argued in favor of using linguistics in briefs he has submitted to courts, and law professor Jill Anderson of the University of Connecticut School of Law, an academic expert in the subject matter.

For better or worse, a one–hour panel with three speakers could merely scratch the surface of this fascinating topic, discussing introductory principles in the field of linguistics, describing how one can perform searches within the online corpus of collected language, and examining how this approach might have yielded easier or better answers to some of the more difficult cases of statutory and constitutional ambiguity that the U.S. Supreme Court has grappled with in recent years.

Along the way, the speakers also helpfully pointed out the shortcomings of what remains the dominant approach to determining disputed meaning — the use of the dictionary. Courts and advocates have assumed that because the dictionary offers definitions in an ordered list, the definitions that appear first must be the most common or typical ones. Yet, in fact, many dictionaries order their word meanings by date of earliest observance, so that the first meaning might be the oldest but not the most common at the time of the dictionary’s publication. Another criticism voiced was that where words have various meanings, the temptation exists for the judge to select the meaning he or she prefers, instead of seeking to determine what the author intended or an ordinary speaker of the language at the time the text was written would have understood it to mean.

Goldfarb, in his presentation, noted the potential uses of a corpus linguistics approach in the ongoing emoluments litigation. In 2019, Goldfarb published a paper that used corpus linguistics to challenge the correctness of the U.S. Supreme Court’s 5–to–4 decision in District of Columbia v. Heller, 554 U.S. 570 (2008), holding that the Second Amendment guarantees an individual right to possess firearms. Goldfarb also was counsel of record on an amicus brief offering a corpus linguistics approach that the U.S. Supreme Court appears to have relied on in FCC v. AT&T Inc., 562 U.S. 397 (2011), to hold that a corporation is not covered by the Freedom of Information Act’s provision precluding disclosure of records that could invade “personal privacy.”

Mouritsen, in his remarks, began by noting that a corpus linguistics approach demonstrated the correctness of the dissenters’ position in the U.S. Supreme Court’s 5–to–4 ruling in Muscarello v. United States, 524 U.S. 125 (1998), wherein the majority held that the five–year federal mandatory prison term for one who “carries a firearm” during and in relation to a drug trafficking crime applied to someone convicted of carrying a firearm in locked glove compartment of vehicle while transporting drugs.

Professor Anderson spoke third, and she addressed, among other things, how using corpus linguistics could help advocates and courts struggling to decide the meaning of difficult–to–understand phrases such as “regarded as disabled” in the Americans with Disabilities Act.

Given the growing interest in using corpus linguistics as a tool to determine the most likely meaning of language in legal disputes, it is likely that future AJEI Summits will return to this topic in greater detail, perhaps demonstrating real–time examples of actual searches of these linguistic databases displayed for attendees to see for themselves what is involved in using this tool and the benefits and burdens thereof. And while Goldfarb addressed in his remarks that courts should view corpus linguistics as legal argument, rather than as fact–based or requiring the use of expert testimony, a more thorough exploration of whether corpus linguistics is evidentiary in nature or a question of law that appellate courts can consider and resolve on their own, without any need to defer to earlier decisionmakers, would also be worthwhile.

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Howard J. Bashman

Howard J. Bashman is a nationally known attorney and commentator whose practice focuses on appellate litigation at the Law Offices of Howard J. Bashman in Willow Grove, Pennsylvania. His blog, How Appealing, is hosted by Breaking Media and is regularly visited by U.S. Supreme Court justices and many other federal and state appellate judges, appellate lawyers, members of the news media, and other interested readers.