Testing Original Public Meaning: Are Dictionaries and Corpus Linguistics Reliable Measures of Meaning?

115 Pages Posted: 6 Nov 2018 Last revised: 28 Feb 2019

Date Written: February 26, 2019

Abstract

Influential theories of interpretation recommend using dictionaries and corpus linguistics to discover a legal text’s “original public meaning.” This is typically understood as an empirical inquiry, aiming to discover facts about how ordinary people comprehended language. However, a central question remains open: Do popular methods of corpus linguistics and dictionary-use accurately reflect original public meaning?

To assess this question, this paper develops a novel method of “experimental jurisprudence.” A series of experimental studies (N = 4,162) reveals systematic divergences among the verdicts delivered by modern concept use, dictionary use, and corpus linguistics use. For example, today people apply the concept of a vehicle differently from the way in which they apply modern dictionary definitions or modern corpus linguistics data concerning vehicles. The same results arise across levels of legal expertise—participants included 230 “elite-university” law students (e.g. at Harvard and Yale) and 98 United States judges—and for various terms and phrases, such as “vehicle,” “labor,” “weapon,” “carrying a firearm,” and “tangible object.” Ultimately, the data suggest that popular methods of dictionary-use and corpus linguistics carry serious risks of error—conservatively estimated, a 20-35% average error rate. And in some circumstances, expert use of these methods carried extremely large error rates—between 80-100%. These findings shift the burden to theorists and practitioners that rely on these tools, to articulate and demonstrate a reliable method of interpretation.

Keywords: originalism, constitutional law, interpretation, textualism, law and language, legal theory, legal philosophy, experimental jurisprudence, empirical legal studies

Suggested Citation

Tobia, Kevin P., Testing Original Public Meaning: Are Dictionaries and Corpus Linguistics Reliable Measures of Meaning? (February 26, 2019). Available at SSRN: https://ssrn.com/abstract=3266082 or http://dx.doi.org/10.2139/ssrn.3266082

Kevin P. Tobia (Contact Author)

Yale University ( email )

New Haven, CT 06511
United States

ETH Zurich ( email )

Rämistrasse 101
ZUE F7
Zürich, 8092
Switzerland

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