Toward Shared Assumptions Regarding the Use of Corpus Linguistics in Legal Interpretation

Abstract

This paper represents an attempt to start a discussion from which I hope will emerge broad, if not universal, agreement among those working in Law & Corpus Linguistics (“LCL”) as to a set of assumptions that can provide a shared framework within which work in the field proceeds.

Although I think that everyone in what I’ll call the LCL community shares the goal of increasing the level of linguistic sophistication in legal interpretation, there are issues as to which there are varying degrees of disagreement. While some of that disagreement arises from the inter-disciplinary nature of LCL, which brings together two very different intellectual cultures, there is also disagreement—and more broadly, absence of agreement—about certain issues that are fundamental to the enterprise of bringing corpus linguistics to bear on issues of legal interpretation.

Perhaps the most important of these have to do with the concept of ordinary meaning: what does ordinary meaning consist in, for example, and what light can corpus analysis shine on determinations of ordinary meaning? And at a more granular level, what kinds of issues are (and are not) good candidates for corpus analysis, and what methodologies are and are not appropriate? There is also the issue of delineating the aspects of LCL that fall within the domain of law from those that fall within the domain of linguistics.

It seems to me that to the extent that people working in LCL see themselves as part of a joint enterprise of some kind, it would be useful to try to jointly identify areas of common ground regarding some of these issues. In the interest of starting such a discussion, this paper sets out a number of points for consideration in such a process. Some of these points have been made before and are probably shared fairly widely, or are at least likely to be uncontroversial. Others are statements about the caselaw for which I haven’t provided citations, but that I believe will be uncontroversial once I remedy that omission. And still others may provoke some debate and disagreement, and if so, that debate is likely to be useful even if the disagreements are not resolved.

Note also that in trying to identify common ground, there might be a middle ground between complete agreement as to a particular point and complete disagreement. For example, linguists might not feel comfortable taking a position on a legal issue, but nevertheless might be willing to treat a conclusion as to that issue as an assumption that their work is based on. (Similarly, a legal scholar might take the same approach as to a linguistic issue.)

However, details such as those can be worked out later. For now, my hope is that this paper will spur discussion.

Keywords: legal interpretation, corpus linguistics, ordinary meaning