Finding Ordinary Meaning in Law: The Judge, the Dictionary or the Corpus?

The International Journal of Legal Discourse, Forthcoming

Brooklyn Law School, Legal Studies Paper No. 474

20 Pages Posted: 13 Oct 2016 Last revised: 2 Nov 2016

Date Written: October 10, 2016

Abstract

Courts in the U.S. frequently apply a rule of statutory construction that calls for the words in laws to be given their “ordinary meaning”. The rule is based on the presumption that legislatures are most likely to have intended the language to be understood in their ordinary sense and on the value that people subject to such laws will more likely comprehend the rights and obligations granted to them. Courts are not, however, in accord when it comes to determining which of a term’s available meanings is the “ordinary” one. This article describes three methods for making this determination: the judge’s linguistic intuitions, dictionary definitions, and reference to linguistic corpora. We argue that the use of corpus analysis enhances the legal system’s ability to rely on actual distributional facts about word usage, thus enhancing the accuracy of ordinary meaning analysis.

We apply the three methods to a case pending before the U.S. Supreme Court, Shaw v. United States, at the time this article is written. The issue in Shaw is whether the expression “defraud a financial institution” applies to a situation in which the defendant tricked a bank into releasing to him the funds of another depositor, when the bank suffered no loss.

We look first at linguistic literature based largely on intuition, then at dictionary definitions, and finally at a corpus. Examining hundreds of examples from the Corpus of Historical English (COHA) developed at Brigham Young University, we find that the verb “defraud” is virtually always used to describe a situation in which the object of the fraud is also the target of the ultimate loss. Analyses based on the intuitions of linguists and on dictionary definitions are consistent with this result, although less robust. We conclude that if the Court wishes to be faithful to the ordinary meaning of the statutory language, it should rule that the statute does not apply to this situation.

Keywords: Ordinary meaning, corpus analysis, legislation, statutory interpretation, fraud, dictionaries

Suggested Citation

Solan, Lawrence M. and Gales, Tammy, Finding Ordinary Meaning in Law: The Judge, the Dictionary or the Corpus? (October 10, 2016). The International Journal of Legal Discourse, Forthcoming; Brooklyn Law School, Legal Studies Paper No. 474. Available at SSRN: https://ssrn.com/abstract=2850703

Lawrence M. Solan (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States
718-780-0357 (Phone)

HOME PAGE: http://www.brooklaw.edu/lawrence_solan

Tammy Gales

Hofstra University ( email )

Hempstead, NY 11549
United States

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