Corpus Linguistics as a Method of Legal Interpretation: Some Progress,Some Questions

Corpus linguistics is becoming a respected method of statutory and constitutional interpretation in the United States over the past decade, yet it has also generated a backlash from a group of scholars that engage in empirical work. This essay attempts to demonstrate both the contributions and the risks of using linguistic corpora as a primary tool in legal interpretation. Its legitimacy stems from the fact that courts routinely state that statutory terms, when not defined as a matter of law, are to be given their ordinary meaning. Judges have responded to this challenge, with the assistance of the linguistics community, by using corpora to determine which meanings are ordinary. However, legal analysts have not determined exactly what makes one meaning ordinary and another not ordinary. This gap has led to a level of disagreement in the field. Moreover, while linguists who engage in corpus linguistic analysis typically emphasize the importance of context, the legal application is peculiarly context-free, in keeping with legal philosophies that eschew reliance on reference to a law’s purpose and the intent of the legislature that enacted it. This move adds a political dimension to corpus analysis as a means of legal interpretation. Yet, the article concludes that by relying on a blend of general and specialized corpora, the legal system can substantially reduce the problem of contextualization, as some linguists and practitioners have already recognized.

     

Cops and Robbers: Selective Literalism in American Criminal Law

Police often ask people to consent to a search of their person or possessions. Many people agree to allow such searches because they interpret the officers' ostensible "requests" as indirect commands. Yet courts routinely interpret police utterances in this situation as requests. A similar issue arises in the context of custodial interrogation. People being interrogated are inclined to invoke their right to counsel in relatively indirect or tentative terms. Yet courts often conclude that the suspect did not really "request" the presence of counsel. We refer to this inconsistency as "selective literalism," by which we mean that courts selectively consider pragmatic circumstances in interpreting the speech of suspects. Using analytical tools from linguistic theory, this article explores how courts employ selective literalism. It further examines some of the consequences of this inconsistent use of interpretive devices, both practically and jurisprudentially.