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February 17, 2023

Law and Linguistics

By: Mark Kressel

An esteemed panel of experts discussed this emerging area of law.

Karl S. Myers, a shareholder at Stevens & Lee and the co-chair of the firm’s Appellate Practice Group, was the moderator of this very well attended panel on Law and Linguistics.  He began by introducing the panelists. 

Hon. Thomas R. Lee is a Principal in Corpus Juris Advisors (a consulting firm) and Lee Nielsen (a law firm), and a lecturer at the law schools of Brigham Young University, Harvard University, and the University of Chicago.  He is a former Justice of the Utah Supreme Court, a former law clerk to Justice Clarence Thomas and Judge J. Harvie Wilkinson III, and a graduate of the University of Chicago Law School.

Kevin Tobiah is a Professor of Law at Georgetown University Law Center.  He researched and teaches in legal interpretation, legal theory, and torts.  He is a graduate of the Yale Law School, where he was awarded the Felix S. Cohen prize for legal philosophy.  His work has been published or is forthcoming in the Harvard Law Review, Yale Law Journal, Columbia Law Review, and University of Chicago Law Review.

Jill C. Anderson is a professor at the University of Connecticut School of Law.  She is a graduate of Columbia Law School, where she was a Lowenstein Public Interest Fellow and earned James Kent Scholar honors.  Professor Anderson is known for her scholarship on language and law.  Her expertise in linguistics informs her articles on statutory interpretation, which have appeared in the Yale Law Journal and Harvard Law Review, and reach substantive areas as diverse as disability discrimination, white collar crime, intellectual property, and genocide law.

Statutes can contain linguistic ambiguities that make it difficult for courts to reliably interpret them correctly.

Professor Anderson began the program by discussing how linguistic ambiguity can cause conundrums in statutory interpretation.  She began with an example from the case of Whiteley v. Chappell, 4 L.R.Q.B. 147 (1968), which she called the Victorian Voter Fraud Puzzle.  A voter cast a vote in the name of a deceased individual.  The issue in the case was whether the defendant violated a statute that made it a crime to fraudulently “impersonate a person entitled to vote.”  The court held that he did not.  The court reasoned that the Legislature did not use language broad enough to make impersonating a dead person a crime. 

Linguists, however, would say it depends on how you read the statute, which is ambiguous.  The ambiguity is “structural,” not lexical, semantic, or syntactic.  This ambiguity is known as “de re vs. de facto ambiguity.”  “De re” means a thing-oriented meaning.  For example, if you say, “I am looking for a dog,” the de re meaning is that “I am looking for a particular dog.”  “De dicto” means a word- or category-oriented meaning.  So if you say, “I am looking for a dog,” the de dicto meaning is that “I am looking to buy a dog.”

If we apply that distinction to the voter fraud problem, we see that if we use the de re meaning, the voter would not have violated the statute criminalizing fraudulently “impersonat[ing] a person entitled to vote,” because the particular person that the voter impersonated was not “entitled to vote.”  He was dead.  However if we use the de facto meaning, the voter would have violated the statute, because he went to the voting center intending to impersonate a person entitled to vote.

What kinds of words trigger a de dicto vs. de re ambiguity? “Opaque” verbs, such as “look for” or “promise.”

How Corpus Linguistics can assist with statutory and other textual interpretation.

The program then turned to Justice Lee, who discussed how Corpus Linguistics can help us understand words when there is lexical ambiguity.  The search for ordinary meaning yields greater predictability in understanding meaning than any other single methodology.  Justice Lee began with an example from Muscarello v. U.S., 524 U.S. 125 (1998).  Muscarello considered the meaning of 18 U.S.C. section 924(c), which imposes a mandatory prison term for any person who, during a drug trafficking crime, “uses or carries a firearm.”  The issue in the case was whether the meaning of “carries a firearm” was limited to carrying a firearm on the defendant’s person, or whether it could include conveying a firearm in the glove compartment of the defendant’s vehicle.  Justice Breyer, writing for the majority, held that “carry” means “any form of transport,” and that the most ordinary sense of “transport” is transporting in a vehicle.  Justice Ginsberg, writing for the dissent, would have held that transporting on a person is not implausible and not at odds with an accepted meaning, and therefore under the rule of lenity, “carry” should be limited to transporting on a person.  Notably, both justices consulted a dictionary and looked at which meaning was listed first.  (This was a particularly suspect approach, because dictionaries usually state that the order of listed meanings of a single word is not related to how common that meaning is.)  What this case demonstrates is that the search for a word’s ordinary meaning may be complicated by the limits of human intuition and the potential for motivated reasoning.

Corpus Linguistics is the use of a database of naturally occurring language to determine a word’s meaning.  The method involves using samples of real world language to see how a word is most commonly used.  Some courts have begun using Corpus Linguistics tools, and it is possible we may soon see Corpus Linguistics cited in a U.S. Supreme Court opinion.  Currently, if a practitioner wants to advance an argument using Corpus Linguistics, he or she needs to hire an expert who works with the relevant databases.  Litigation over a word’s meaning thus becomes a battle of experts. 

If you are not an expert, however, but you want to get your feet wet, you can google the Corpus of Contemporary American English.  This database will give you representative samples of public usage and meaning today.  The database is currently contains samples from 1990 through 2019 and is regularly updated to add samples from more recent years.  Another database is the Corpus of Founding Era American English.  This database will give representative samples of public usage and meaning at the time of our nation’s founding.

Other linguistic tools besides Corpus Linguistics can help with textual interpretation.

Next, Professor Tobiah discussed other linguistic tools that people use to determine a word’s ordinary meaning.  He began with the famous line from Justice Scalia that “the acid test of whether a word can reasonably bear a particular meaning is whether you could use the word in that sense at a cocktail party without having people look at you funny.”  Johnson v. United States, 529 U.S. 694, 718 (2000) (Scalia, J., dissenting).  The limits on this method, of course, include understanding which community is attending this particular cocktail party.

Of course, one tool for learning a word’s meaning is a dictionary.  But using a dictionary still requires you to make important choices, such as whether to use an ordinary dictionary or legal dictionary, or a contemporary or historical dictionary.  Furthermore, many dictionaries will put emphasis on the frequency of a particular use, but the frequency of use does not necessarily correlate with the word’s ordinary meaning.  For example, there is what is known as the “Blue Pitta” problem.  The Blue Pitta is a specific species of bird.  However, this bird is so unusual that its name does not appear in the corpus linguistics databases—no one ever uses it.  As another example, “black sheep” is used far more frequently than “white sheep” (at 95 percent to the latter’s 5 percent), yet a white sheep is the more ordinary meaning of the word sheep.

Another helpful tool is a survey.  For example, you could survey people as to whether, for purposes of a rule prohibiting “vehicles in the park,” a bicycle is a “vehicle.”  People would respond differently depending on their views of whether a bicycle would generally be permitted in a park.

The future will see more advances in the use of Corpus Linguistics in the legal profession.

The panelists concluded the discussion with some final thoughts about the future of Corpus Linguistics in the legal profession.  Professor Anderson predicted that linguists will begin to pay attention and weigh in on questions such as how correct lawyers’ methods are when they work with the database.  Some textual interpretation cases will be decided by a battle of experts criticizing each other’s’ research methods and conclusions.  Justice Lee believes we are going to see the establishment of a field called “Law and Linguistics,” and there will be more interdisciplinary research in this area.  Professor Tobiah predicted that the empirical work done by these scholars and experts will lead to advances in interpretary theories.

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Mark Kressel

Horvitz & Levy, LLP

Mark Kressel is a partner at the appellate boutique of Horvitz & Levy, LLP. Major studios and government entities rely on Mark Kressel for his extensive multi-forum strategy and appellate advocacy capabilities. He has handled appellate matters in a wide range of areas, including the California Environmental Quality Act (CEQA), the anti-SLAPP statute, the First Amendment, punitive damages, elder abuse, wrongful death and catastrophic injury, general business litigation, premises liability, and patent infringement litigation.  In 2021-2022, Mark was the Chair of the ABA’s Council of Appellate Lawyers and Vice President of the Los Angeles County Bar Association, and in 2013-2014 he was the President of the Barristers Section of the Los Angeles County Bar Association. He was formerly co-director of the Pepperdine Caruso School of Law's Ninth Circuit Appellate Advocacy Clinic from 2016 to 2022, and is active in diversity and inclusion organizations including the LGBTQ+ Bar Association of Los Angeles and the Leadership Council on Legal Diversity.