Waldon, Condoravdi, Pustejovsky, Schneider, and Tobia on Reading Law With Linguistics: How Linguistic Theory and Data Inform Statutory Interpretation of Artifact Nouns @kevin_tobia

Brandon Waldon, Georgetown University, Cleo Condoravdi, Stanford University, James Pustejovsky, Brandeis University, Nathan Schneider, Georgetown University, and Kevin Tobia, Georgetown University Law Center; Georgetown University, Department of Philosophy, have published Reading Law with Linguistics: How Linguistic Theory and Data Inform Statutory Interpretation of Artifact Nouns. Here is the abstract.

The Supreme Court will soon decide Garland v. VanDerStok, a case concerning whether a “gun parts kit” or “ghost gun” is a “firearm” subject to regulation under the 1968 Gun Control Act. These “kits,” firearm parts that with additional finishing or combination become an operable firearm, have been used in several mass shootings. For the textualist Supreme Court the case turns on the statute’s meaning, and the briefs and lower court opinions emphasize traditional tools. This article proposes that the Court complement familiar interpretive tools like dictionaries with new ones. We apply insights from linguistic theory, report new data from ordinary language usage, and present an original survey study of ordinary Americans. This evidence supports that the gun parts kits identified by the government fit within the meaning of “firearm.” This analysis has important practical implications for VanDerStok and the regulation of unassembled and unfinished firearms. The article’s case study in the legal interpretation of artifact nouns also carries broader implications. We develop lessons for statutory interpretation theory and legal philosophy.

Download the article from SSRN at the link.

Glushak on The Status of Loanwords in German @mgimo_en

Vasiliy Glushak, Moscow State Institute of International Relations (MGIMO), has published The Status of Loanwords in German. Here is the abstract.

The emergence of borrowed lexical units in legal texts is due to various factors. Borrowings are often synonyms for terms already used in legal discourse, or they denote a new phenomenon to which a German-language term is eventually chosen, which again leads to the existence of synonymous denotations. This phenomenon is also connected with the history of law. Borrowed elements were often components of paired expressions. Here are just a few examples that included borrowings: Erbschaft oder Succession - confirmieren und bestätigen - Contract oder Bündnis - contravenieren und zuwiderhandeln - Genehmigung und Approbation. The borrowed component was highlighted in writing and in print with a special font. The listing along with the borrowed component of an authentic, German word that reveals the meaning of the borrowing can be seen as a continuation of the tradition already described: fair und angemessen, fair und ausgewogen, fair und unparteiisch. Fair action is thus to be understood as action based on a reasonable, considered and impartial approach. A peculiarity of the German legal language is an active tendency to reject foreign-language terms imposed on it. This can be established by analysing the frequency of use of borrowed synonymous lexemes. The markers of the group of borrowed words are suffixes -tion, -tät, -ier. This table contains information about the use of these suffixes in the German legal texts: GG (Basic Law), BGB (Civil Code), the EU foundation documents (Treaty on European Union (VEU) and Treaty on the Functioning of the European Union (LISSABON), two important regulations (ROM I and ROM II) and one current regulation (VO2022/126) for comparison. The number of words with determinative borrowed vocabulary components -tät, -tion, -ieren in the EU documents is not comparable to the similar vocabulary in the German legal documents. On 412 pages of the Treaty on the Functioning of the European Union and 283 pages of the Treaty of Lisbon there are 503 and 278 words with -tät and over 1,000 words with -tion in both documents. Whereas in the 50 pages of the Basic Law and 422 pages of the GGU there are 44 and 122 words with -tion and 9 and 13 with -tät respectively. Verbs with -ieren are only 25 in the Fundamental Law and 64 in the GGU, while the EU texts mentioned above have between 200 and 300 examples of this. The use of loan words is probably intended to accelerate the unification of European law and to turn the language of legal documents into a kind of lingua franca that is generally understood by everyone working with the document, regardless of their nationality. EU law has a strong influence on the terminological system of German national law. Synonymous designations alternate in the texts of the law in similar contexts: in das Fahrzeug eingebaut, in ein Gerät eingebaut zu werden, im Anzeigegerät integriert, zusammengebaut, ineinander gebaut oder kombiniert. The frequency advantage of German-speaking terms allows us to conclude that the German language is resistant to borrowing. However, the trend towards a quantitative increase in the use of borrowed terms, often unwarranted when a native equivalent is available, makes the future of the terminological system of German language look with concern in view of the trend towards a globalised language of law.

Download the paper from SSRN at the link.

Hargreaves on Taken as Read: Linguistic (In)Equality in Hong Kong's Jurisprudence @hargreaves_s

Stuart Hargreaves, The Chinese University of Hong Kong (CUHK), Faculty of Law, is publishing Taken as Read: Linguistic (in)equality in Hong Kong’s Jurisprudence in the Michigan State University International Law Review (2023). Here is the abstract.

Colonial Hong Kong was characterized by diglossia: the use of Cantonese for the ‘low’ functions of daily life and the use of English for the ‘high’ functions of law and government. This paper shows that significant linguistic inequality persists at the top end of the legal hierarchy a full quarter-century after the transition to Chinese sovereignty. By reviewing the output of Court of Final Appeal since 1997, this paper demonstrates that not only has the Court failed to develop a fully bilingual jurisprudence, the availability of Chinese-language translations of its decisions is in fact declining over time. This means that roughly two-thirds to three-quarters of the population is unable to read for themselves the decisions of the Region’s apex court despite being fluent in an official language. The paper argues that beyond instrumental arguments (such as fairness to monolingual self-represented litigants), linguistic equality in the Court’s output is justified in normative terms. It is an assertion of the dignity of monolingual Chinese speakers within the community; a statement that they deserve equal access to the output of the Court given the significant role it plays. The paper concludes by arguing for an amendment to the relevant law in order to guarantee linguistic equality in the Court’s output and provision of the necessary resources to accomplish it. The problem is solvable with political will and a relatively small amount of money.

Download the article from SSRN at the link.

Metallic on Six Examples Applying the Meta-Principle Linguistic Method: Lessons for Indigenous Law Implementation @NaiomiMetallic @SchulichLaw @unblawjournal

Naiomi Metallic, Dalhousie University School of Law, is publishing Six Examples Applying the Meta-Principle Linguistic Method: Lessons for Indigenous Law Implementation in the University of New Brunswick Law Journal. Here is the abstract.

Building on “Five Linguistic Methods for Revitalizing Indigenous Laws,” this article explains and analyses six examples of implementation of the ‘meta-principle’ or ‘word-bundle’ linguistic method for Indigenous law revitalization. The method refers to using a word in an Indigenous language that conveys an overarching, normative principle of the Indigenous group, and is the most utilized form of the five linguistic methods to date. The examples span its use by judges, public governments as well as Indigenous governments, and these actors employ different methods for identifying and interpreting the meta-principles. The variations between them reveal four categories of approaches to identifying, interpreting and implementing meta-principles: (1) inherent knowledge of decision-maker; (2) in-court evidence; (3) official ratification; and (4) advisory bodies. There are different benefits and challenges associated with each category, and there are several lessons we can take from studying them. These examples and the categories show us that communities and their governments have real options, and precedents, to not only begin to revive their laws, but also to put them into practice.

Download the article from SSRN at the link.

Solum on The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning @lsolum @BULawReview

Lawrence B. Solum, University of Virginia School of Law, has published The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning at 101 Boston University Law Review 1953 (2021). Here is the abstract.

Public Meaning Originalism is the predominant form of constitutional originalism. What makes Public Meaning Originalism distinctive is the Public Meaning Thesis—the claim that the best understanding of constitutional meaning focuses on the meaning communicated by the constitutional text to the public at the time each constitutional provision was framed and ratified. This Article provides a precise formulation of the Public Meaning Thesis, supplies reasons for affirming the thesis, and answers objections. The constitutional record strongly supports the claim that the constitutional text was intended to communicate to the public. The Constitution begins with “We the People” and the ratification process included intense popular participation. Jurists and scholars emphasized the public nature of the Constitution. The communication of public meaning is made possible by two features of constitutional communication. The first of these features is a shared language: the drafters of the constitutional text could rely on the fact that American English was spoken by most Americans and was accessible via translation to those who spoke German and Dutch. The second feature is a shared public context of constitutional communication: the drafters could rely on widely shared understandings of the circumstances in which the Constitution was framed and ratified. These features enable the creation of public meaning. Common objections to the Public Meaning Thesis, including the “summing problem,” are based on mistaken assumptions about the way linguistic communication works. In sum, the central claim of the Article is that Public Meaning Originalism provides the best understanding of original meaning and hence the most attractive form of originalist constitutional theory.

Download the article from SSRN at the link.

Eskridge, Slocum, and Gries on The Meaning of Sex: Dynamic Words, Novel Applications, and Original Public Meaning @EskridgeBill @PacificMcGeorge @YaleLawSch

William N. Eskridge, Yale Law School, Brian G. Slocum, McGeorge School of Law, and Stefan Gries, UC Santa Barbara Department of Linguistics, are publishing The Meaning of Sex: Dynamic Words, Novel Applications, and Original Public Meaning in volume 119 of the Michigan Law Review. Here is the abstract.

The meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters. Both of these were at issue in the Supreme Court’s recent landmark decision in Bostock v. Clayton County, Georgia, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sex and gender minorities against workplace discrimination. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the Court failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over time. We argue that long-standing statutes are inherently dynamic because they inevitably evolve ‘beyond’ the original legislative expectations, and we offer a new theory and framework for how courts can manage societal and linguistic evolution. The framework depends in part on courts defining ‘meaning’ properly so that statutory coverage is allowed to naturally evolve over time due to changes in society, even if the meaning of the statutory language is held constant (via originalism). Originalism in statutory and constitutional interpretation typically focuses on the language of the text itself and whether it has evolved over time (what we term linguistic dynamism), but courts should also recognize that the features of the objects of interpretation may also evolve over time (what we term societal dynamism). Linguistic dynamism may implicate originalism but societal dynamism should not, as originalists have assumed in other contexts (such as Second Amendment jurisprudence). Putting our framework into action, we demonstrate, through the application of corpus analysis and linguistic theory, that sex in 1964 was not limited to “biological distinctions between male and female,” as all of the opinions in Bostock assumed, and gender and sexual orientation were essentially non-words. Sex thus had a broader meaning than it does today, where terms like gender and sexual orientation (and other terms like sexuality) denote concepts that once could be referred to as sex (on its own and in compounds). In turn, ‘gays and lesbians’ and transgender people became new social groups that did not exist in 1964. By limiting the meaning of sex to “biological distinctions” and failing to recognize that societal dynamism can change statutory coverage, the Court missed the opportunity to explicitly affirm that the societal evolution of gays and lesbians and transgender people has legal significance.

Download the article from SSRN at the link.

Mootz on Corpus Linguistics and Vico's Lament: Against Vivisectional Jurisprudence @jaymootz

Francis Joseph Mootz, McGeorge School of Law, is publishing Corpus Linguistics and Vico's Lament: Against Vivisectional Jurisprudence in volume 20 of the Nevada Law Journal (2020). Here is the abstract.

The “new textualist” approach to legal interpretation, most closely identified with the late Justice Scalia, argues that the meaning of a legal text is just the ordinary meaning that the words would have had for an average competent speaker of the language at the time of their enactment as a statute. Too often, judges appear to be drawing on their vague intuitions about “ordinary meaning,” usually under the cover of citing to malleable and contradictory dictionary definitions. This poses a serious problem, because a primary justification for new textualist methods is the ability to discern legal meaning in an objective manner that rises above a particular judge’s subjective desires. Some legal theorists recently have turned to corpus analysis, claiming that this tool developed by professional linguists provides the empirical methodology capable of identifying the ordinary meaning of words used in a legal text by rigorously examining how the words generally were used at a given point in the past. Although not foolproof, legal scholars argue that corpus analysis often will be able to identify the ordinary meaning of words and phrases as they were used when the legal text was adopted, thereby providing an objective means to specify legal meaning under the new textualist approach. The lure of corpus analysis for legal theorists is the most recent in a long history of similar Siren calls. We are seduced by the promise of a methodology that claims to apply the law to a specific case in a manner that permits observers to monitor and assess whether that application of the law is objectively correct. But this allure inevitably founders on the rocks, leaving us unfulfilled, disappointed, and searching for the next promising suitor to lead us to a method for determining objectively correct answers. In this essay I argue against the deep impulse that motivates the contemporary turn to corpus linguistics precisely because this enticing “new” method re-inscribes the profoundly misguided theoretical premise of modern law that there are clear lines between “the law” and its “application to a specific case.” In his oration at the commencement of the 1708 term at the University of Naples, Giambattista Vico lamented the abandonment of rhetorical understanding and the misguided embrace of Cartesian analysis as the model of genuine knowledge. The past three centuries have borne witness to this slavish adherence to a focus on objective and empirical inquiry, neglecting the unavoidable role of rhetorical persuasion in legal meaning. My essay proceeds in the spirit of Vico’s great oration. I urge that, at long last, we should return to a conception of legal meaning as rhetorical knowledge.

Download the essay from SSRN at the link. 

Call For Papers: Three Special Issues of the International Journal for the Semiotics of Law

Call For Papers, Three Special Issues

INTERNATIONAL JOURNAL FOR THE SEMIOTICS OF LAW & COMPARATIVE LEGILINGUISTICS

COVID-19 INFODEMIC – BETWEEN LAW, ETHICS AND FAKE NEWS

Guest Editors: Anne WAGNER, Aleksandra MATULEWSKA & Sarah MARUSEK

The 2020 pandemic of Covid-19 virus struck the globalized world unexpectedly, resulting in
the misleading predictions of fatalities information chaos and fake news. Aware of the
consequential impact of distortions and half-truths, the World Health Organization stresses
that societies suffer not only as a direct result of disease, social-distancing but also overabundance
of information that makes it hard for people to find trustworthy sources and
reliable guidance. The spread of rumors and misinformation has been possible also due to the
prevalence of distance communication methods which enable publication of anything without
any limits or peer review as verification. Such pieces of news, if skillfully posted, may reach
enormous numbers of people causing harm and unpredictable consequences.

The important questions one may ask focus on the following topics:
1. Journalism ethics – in the light of the need to catch attention of readers numerous
journals start posting and publishing unverified and misleading materials,
2. The role of social media platforms such as Facebook, Twitter, Tencent, Tiktok and
others in limiting or spreading misinformation,
3. Hate speech and cyberbullying connected with pandemic and its effects on society,
economy, politics, etc.
4. Cyberattacks connected with Covid-19 (Since the start of the COVID-19 pandemic,
WHO has seen a dramatic increase in the number of cyberattacks directed at its
staff, and email scams targeting the public at large, analogously platforms made
available to teachers and other sectors such as ZOOM have been hacked),
5. Ostracism directed at people who got infected and unconsciously spread the
disease onto others,
6. Legal means of combating fake news, hate speech, cyberbullying,
7. Stereotyping and deviant community creation as a result of stereotypes,
8. Image manipulation,
9. Other semiotic aspects of communication during pandemic,
10. Imaging China as the first country who detected the infected people,
11. Imaging other countries hit by the virus,
12. Imaging political parties involved in decision-making processes connected with
counteracting the pandemic,
13. Political discourse – modes of reporting infections, disease, asking for help,
solidarity, social distancing,
14. Imagining artistic means to express concern, solidarity and hope.
Our aims, with these 3 important Special Issues, are (1) to provide an international
interdisciplinary forum of thought in these scientific fields where linguistic and legal interests
converge, (2) to facilitate integration between linguists, semioticians, computer scientists,
medical experts and lawyers from all around the world, (3) to demonstrate a broader overview
of Covid-19 invading both our personal and professional spaces, and (4) to show the various
political, legal and medical measures put in place to combat this invisible scourge.

- 2 Special Issues for International Journal for the Semiotics of Law, each of which can
comprise 14 papers of no more than 30 pages.
- 1 Special Issue for Comparative Legilinguistics that can comprise 6 papers of no more
than 30 pages
We welcome submissions in English or French.
Send your proposal to the three of us: aleksandra.matulewska@gmail.com,
valwagnerfr@yahoo.com, and marusek@hawaii.edu.

Deadline for abstract of 300 words: 10 December 2021
Decision for inclusion: 1 February 2022
Deadline for full paper: 15 March 2022 (instructions will be sent after decision to include
papers in the special issue)

Bernstein on Legal Corpus Linguistics and the Half Empirical Analysis @Cornell_Law_Rev

Anya Bernstein, SUNY Buffalo Law School, is publishing Legal Corpus Linguistics and the Half Empirical Attitude in volume 106 of the Cornell Law Review (2021). Here is the abstract.

Legal writers have recently turned to corpus linguistics for help interpreting legal texts. Corpus linguistics—a methodology that analyzes large data sets of language use —promises to give empirical grounding to the claims about ordinary language that pervade legal interpretation. Yet, I argue, legal corpus linguistics departs from these empirical origins by ignoring the crucial contexts in which legal language is produced and interpreted. First, legal corpus linguistics ignores the legal context of legal language—conditions, like judicial precedent and statutory co-text, that give legal language authority. So it provides evidence about language use that obscures and misstates the actual issues legal interpreters face. Second, legal corpus linguistics ignores the institutional context of legal language—the way it is produced by certain speakers, taken up by certain audiences, and formulated in particular genres. When legal corpus work treats language as socially undifferentiated, its empirical findings rest on a fictional basis. The underlying problem, I show, is a mismatch of methodology and goal. Corpus linguistics in linguistics makes an empirical claim that its analysis illuminates truths about the language it studies. Legal corpus linguistics, in contrast, uses empirical methods to support a normative claim that its analysis ought to influence our interpretation of legal texts. Treating normative claims as though they were empirical findings constitutes what I call a half-empirical attitude in legal interpretation. At the same time, I suggest ways that legal corpus linguistics could be useful to the production and interpretation of legal texts, as well as to the development of legal theory—if it embraces a more fully empirical attitude. 

 Download the article from SSRN at the link.

Zareifard, Hosseini, and Zarei on The Investigation of the Grammatical Metaphors of Iranian Legal Texts

Raha Zareifard, Jahrom University, Zahra Hosseini, and Tayyebe Zarei, Jahrom University, Department of Linguistics, are publishing The Investigation of the Grammatical Metaphors of Iranian Legal Texts in volume 2020 of the International Journal of Linguistics, Literature and Translation. Here is the abstract.

Nowadays, scientific analysis of language has a special place in the sciences, since the scientific methods give a better understanding of the texts. The emergence of forensic linguistics in recent years in Iran and the presentation of various approaches in this field has greatly accepted. This article analyzes a number of advisory theories of Iranian Justice Department based on the systemic functional grammar. One of the concepts in the systemic functional grammar is grammatical metaphor. Grammatical metaphor is one of the hallmarks of the language of science, and according to Holliday (2004) grammatical metaphor is of great importance in the development of scientific discourse and the advancement of reasoning in texts. Holliday has introduced and distinguished three types of grammatical metaphor, i.e. ideational, interpersonal and textual. The purpose of this research is to study the application of these types of metaphors in legal texts, to gain a better understanding of them. For this purpose, we examine the use of ideational, interpersonal and textual metaphors by examining about 20 advisory theories of Iranian Legal Department of Justice randomly. The results of this study suggest that legal texts have their own unique style and that the reason for applying such metaphors is to make these texts distinctive. Therefore, a better and more accurate understanding of these texts can be achieved with a closer look at the analytical tools presented.

Download the article from SSRN at the link.

Lemley on Chief Justice Webster @marklemley

Mark A. Lemley, Stanford Law School, has published Chief Justice Webster. Here is the abstract.

The Supreme Court has a love affair with the dictionary. Half of its decisions in the 2018 term cited a dictionary, often as the primary or exclusive means of defining a term in the statute. The Solicitor General may long have been the “tenth Justice,” but in the 21st century the Chief Justice of the Supreme Court may as well be, not John Roberts, but Noah Webster. The Court’s obsession with dictionaries as the arbiter of statutory meaning is a recent phenomenon. A review of cases from 50 or 100 years ago reveals no such focus. The Court’s increased use of dictionaries may stem from the idea – very much in vogue today in some quarters – that courts are not to make law but simply “call balls and strikes.” Looking up a term in the dictionary can seem like the height of judicial restraint. A court that does so isn’t consciously or subconsciously imposing its own ideology on a statute; it’s just turning to a trusted neutral source. That impression is misleading. Dictionaries are not the neutral, commonly-accepted panacea the Court seems to suppose. In this Article, I discuss a historical test case for the use of dictionaries to interpret legal documents. In the early 2000s, patent law flirted with the use of dictionaries to define the terms of patent claims, a process akin to statutory interpretation. The Federal Circuit (the national patent court) unanimously abandoned that experiment after only three years, for a simple reason: it was a disaster. The lessons of patent law’s brief flirtation with dictionary primacy in claim construction suggest that it’s a bad idea to turn to dictionaries to interpret statutes. That’s true for several reasons. Dictionaries aren’t designed to give what courts want: a single definitive meaning (or complex of considerations) that define what the law is. Dictionaries deliberately define terms expansively and in self-contradictory ways, seeking to capture all possible meanings of a term, not to pick among them. They don’t take legal nuance into account, and they can’t incorporate a background pattern of behavior or centuries of precedent against which Congress may have adopted a term. The use of legislative history is often attacked as a cover for judicial activism, but in fact it is the dictionary that provides the easiest cover for activist decisions that depart from Congressional intent and precedent. Dictionaries can literally justify any plausible meaning of a term. Courts that turn to them are doing exactly what they purport to disdain: picking the meaning of a statute based on their own personal preferences.

Download the article from SSRN at the link.

Zoldan on Corpus Linguistics and the Dream of Objectivity @ECZoldan

Evan C. Zoldan, University of Toledo College of Law, is publishing Corpus Linguistics and the Dream of Objectivity in the Seton Hall Law Review. Here is the abstract.

A growing number of scholars and judges have embraced corpus linguistics as a way to interpret legal texts. Their stated goal—to make legal interpretation more objective — is an admirable one. But, is their claim that corpus linguistics can reduce the subjectivity associated with judicial intuition and biased data more than just a dream? This Article analyzes the use of corpus linguistics for statutory interpretation and concludes that this novel practice does not live up to its promise to make legal interpretation more objective. Instead, the use of corpus linguistics relies on judicial intuition and biased data, disrupting its proponents’ dream of objectivity.

Download the article from SSRN at the link.

LaVigne and Miles on Brendan Dassey, Language Impairments, and Judicial Ignorance @WisconsinLaw

Michele LaVigne, University of Wisconsin Law School, and Sally Miles, Independent, are publishing Under the Hood: Brendan Dassey, Language Impairments, and Judicial Ignorance in volume 82 of the Albany Law Review (2019). Here is the abstract.

Making a Murderer, the Netflix documentary sensation, introduced the world to two unlikely protagonists, Steven Avery and Brendan Dassey of Manitowoc, Wisconsin. Both were convicted of a 2005 homicide and received life sentences. Avery was the main focus of the series, but it was Brendan, a developmentally-delayed sixteen-year-old, who won the heart and outrage of viewers. The primary piece of evidence against Brendan was a “confession” cruelly extracted by law enforcement. The voluntariness of that confession was litigated in state and federal courts for over a dozen years. Tragically, most of the courts, including the final Seventh Circuit Court of Appeals en banc majority, were completely oblivious to fact that Brendan’s had the kind of severe communication and language impairment which would have left him helpless against the out-of-control interviewing style used by law enforcement. This article examines what the courts overlooked. In order to fully assess the interviews and their impact, the co-authors had to do an under the hood analysis of Brendan’s language and communication skills as well as the communication of law enforcement. The co-authors, a clinical law professor and a speech language pathologist, suspected that Brendan suffered from a language impairment (disabling deficiencies in oral language competency), and we were right. The court file contained school records and assessments that placed Brendan’s language and communication skills in the lowest percentile of all sixteen-year-olds. This impairment had a profound impact on all aspects of Brendan’s functioning. The other part of the equation was more complicated, but equally revealing. With the assistance of a language transcription company we closely analyzed law enforcement communication, and how that communication would affect someone like Brendan. The results were alarming. Almost everything the two officers did in the course of interrogating Brendan violated the most minimal standards for interviewing any juvenile, but especially one with underdeveloped language and communication skills. By the time we finished our review, we were confident that the verbal behavior of law enforcement throughout the interrogations of Brendan, coupled with his poor ability to linguistically cope and his age, made him a prime candidate for unwillingly—and unwittingly—confessing to a crime he did not commit. This article describes our findings. It shows how law enforcement essentially abused Brendan with a chaotic mess of verbiage. And how, up against such a relentless verbal torrent, Brendan never stood a chance. The article also analyzes the myriad ways that the courts were simply wrong in their assumptions about Brendan, communication, and human behavior. On a larger scale, we believe that this article, and the process that created it, can provide a prototype for future cases. Brendan Dassey’s impairment is not unique, and within the criminal justice system, it is not even unusual. Nor, unfortunately, are egregious police interviewing “techniques.” The use of speech-language expertise and discourse analysis could be useful to prevent the kind of grotesque injustice done to Brendan Dassey.

Download the article from SSRN at the link.

Goldfarb on Corpus Linguistics in Legal Interpretation: When Is It (In)appropriate? @NealGoldfarb

Neal Goldfarb, Georgetown University Law Center, has published Corpus Linguistics in Legal Interpretation: When Is It (In)appropriate? Here is the abstract.

Corpus linguistics can be a powerful tool in legal interpretation, but like all tools, it is suited for some uses but not for others. At a minimum, that means that there are likely to be cases in which corpus data doesn’t yield any useful insights. More seriously, in some cases where the data seems useful, that appearance might prove on closer examination to be misleading. So it is important for people to be able to distinguish issues as to which corpus results are genuinely useful from those in which they are not. A big part of the motivation behind introducing corpus linguistics into legal interpretation is to increase the sophistication and quality of interpretive analysis. That purpose will be disserved corpus data is cited in support of conclusions that the data doesn’t really support. This paper is an initial attempt to deal with problem of distinguishing uses of corpus linguistics that can yield useful data from those that cannot. In particular, the paper addresses a criticism that has been made of the use of corpus linguistics in legal interpretation — namely, that that the hypothesis underlying the legal-interpretive use of frequency data is flawed. That hypothesis, according to one of the critics, is that “where an ambiguous term retains two plausible meanings, the ordinary meaning of the term... is the more frequently used meaning[.]” (Although that description is not fully accurate, it will suffice for present purposes.) The asserted flaw in this hypothesis is that differences in the frequencies of different senses of a word might be due to “reasons that have little to do with the ordinary meaning of that word.” Such differences, rather than reflecting the “sense of a word or phrase that is most likely implicated in a given linguistic context,” might instead reflect at least in part “the prevalence or newsworthiness of the underlying phenomenon that the term denotes.” That argument is referred to in this paper as the Purple-Car Argument, based on a skeptical comment about the use of corpus linguistics in legal interpretation: “If the word ‘car’ is ten times more likely to co-occur with the word ‘red’ than with the word ‘purple,’ it would be ludicrous to conclude from this data that a purple car is not a ‘car.’” This paper deals with the Purple-Car Argument in two ways. First, it attempts to clarify the argument’s by showing that there are ways of using corpus linguistics that do not involve frequency analysis and that are therefore not even arguably subject to the Purple-Car Argument. The paper offers several case studies illustrating such uses. Second, the acknowledges that when frequency analysis is in fact used, there will be cases that do implicate the flaw that the Purple-Car Argument identifies. The problem, therefore, is to figure out how to distinguish these Purple-Car cases from cases in which the Purple-Car Argument does not apply. The paper discusses some possible methodologies that might be helpful in making that determination. It then presents three case studies, focusing on cases that are well known to those familiar with the law-and-corpus-linguistics literature: Muscarello v. United States, State v. Rasabout, and People v. Harris. The paper concludes that the Purple-Car Argument does not apply to Muscarello, that it does apply to Rasabout, and that a variant of the argument applies to the dissenting opinion in Harris.

Download the article from SSRN at the link.

Cunningham and Egbert on Scientific Methods for Analyzing Original Meaning: Corpus Linguistics and the Emoluments Clauses @ClarkGSULaw

Clark D. Cunningham, Georgia State University College of Law, and Jesse Egbert, Northern Arizona University, have published Scientific Methods for Analyzing Original Meaning: Corpus Linguistics and the Emoluments Clauses, presented at the Fourth Annual Conference of Law & Corpus Linguistics (2019), as Georgia State University College of Law, Legal Studies Paper. Here is the abstract.

In interpreting the Constitution's text, courts "are guided by the principle that '[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from their technical meaning'." District of Columbia v. Heller, 554 U.S. 570, 576 (2008). According to James Madison: "[W]hatever respect may be thought due to the intention of the Convention, which prepared and proposed the Constitution, as a presumptive evidence of the general understanding at the time of the language used, it must be kept in mind that the only authoritative intentions were those of the people of the States, as expressed through the Conventions which ratified the Constitution." In looking for "presumptive evidence of the general understanding at the time of the language used" courts have generally relied on dictionary definitions and selected quotations from texts dating from the period of ratification. This paper presents a completely different, scientifically-grounded approach: applying the tools of linguistic analysis to "big data" about how written language was used at the time of ratification. This data became publicly available in Fall 2018 when the website of the Corpus of Founding Era American English (COFEA) was launched. COFEA contains in digital form over 95,000 texts created between 1760 and 1799, totaling more than 138,800,000 words. The authors illustrate this scientific approach by analyzing the usage of the word emolument by writers in America during the period covered by COFEA, 1760-1799. The authors selected this project both because the interpretation of two clauses in the Constitution using emolument are of considerable current interest and because the meaning of emolument is a mystery to modern Americans. The District of Columbia and State of Maryland are currently suing President Donald Trump alleging that his continued ownership of the Trump Hotel in Washington puts him in violation of Constitutional prohibitions on receiving or accepting "emoluments" from either foreign or state governments. The President's primary line of defense is a narrow reading of emolument as "profit arising from an office or employ." The authors accessed every text in COFEA in which emolument appeared - over 2500 examples of actual usage - and analyzed all of these examples using three different computerized search methods. The authors found no evidence that emolument had a distinct narrow meaning of "profit arising from an office or employ." All three analyses indicated just the opposite: emolument was consistently used and understood as a general and inclusive term. The authors have filed an amicus brief in support of neither party in the pending 4th Circuit appeal in the Trump Hotel case, reporting the results of the research described in this article. The brief is available at SSRN: https://ssrn.com/abstract=3334017. Egbert is a professor of applied linguistics who has co-authored or co-edited three books and more than 60 peer-reviewed publications. Cunningham is a law professor who has written previously about applying linguistics to the interpretation of legal texts, including Plain Meaning and Hard Cases, 103 Yale L.J. 1561 (1994); Using Common Sense: A Linguistic Perspective on Judicial Interpretations of 'Use a Firearm,', 73 Wash. U. L.Q. 1159 (1995); and A Linguistic Analysis of the Meanings of 'Search' in the Fourth Amendment: A Search for Common Sense, 73 Iowa L. Rev. 541 (1998).

Download the article from SSRN at the link.

Didikin on Law as a Linguistic Phenomenon

Anton Didikin, Higher School of Economics; Russian Academy of Sciences, Russian Academy of Sciences Institute of State and Law, has published Law As a Linguistic Phenomenon: Analytical Approach at 13 Proceedings of the Institute of State and Law of the RAS 40 (2018). Here is the abstract.

Law as a regulator of the conduct of social subjects cannot be directly equated with other methods of controlling the behavior in society. The grounds of legally significant actions allow determination of the context of the application of legal rules. The meaning of each legal term, as argued by L. Wittgenstein, depends on its “context of use” and the conventions of use at the moment. Therefore, the interpretation of the rules cannot be based solely on the principles of logic and be completely neutral. On the one hand, “we follow the rule blindly”, but at the same time, the repeatability of the behavior of other people and the ability to observe their behavior (by analogy with the mathematical concepts of addition and sum) encourage “learning” the rules and acting in accordance with the rules. The ascription of the legal language and the “imputation” principle of the legal interpretation of facts allow defining a key concept that cannot exist beyond the constructed social reality. The attempts to analyze non-legal factors appeal not to legal arguments but to other phenomena. The legal term in its nature not only describes empirical facts but also encourages action.The most dismal example of a change in philosophical argumentation and legal reasoning in the philosophy of law is the influence of Quine’s arguments. In the context of the methodology of legal explanation, the naturalization of the epistemology of law is possible only when the limitations and specifics of traditional methods of interpretation of legal reality are considered. The paper focuses on the analysis of some arguments made by the analytical legal philosophers regarding the linguistic content of legal rules with no reference to any social determination or formulation of the significant judgments about the linguistic nature of legal reality.

Download the essay from SSRN at the link.

Kar on Formal Argument That Contract Meaning Depends On Linguistic Cooperation @UIllinoisLaw

Robin Bradley Kar, University of Illinois College of Law, has published Formal Argument that Contract Meaning Depends on Linguistic Cooperation. Here is the abstract.

In Pseudo-Contract and Shared Meaning Analysis, Professor Radin and I recently drew on contemporary insights into meaning, pioneered by Paul Grice, to develop a contemporary approach to contract interpretation — “shared meaning analysis” — which is adapted to modern circumstances. Part of our argument for using shared meaning analysis rested on the claim that when interpreting contracts, “the primary search is for a common meaning of the parties” — as the Restatement (Second) of Contracts puts the point. When identifying this common meaning, we argued that courts and parties implicitly rely on presuppositions of linguistic cooperation in ways that often go unrecognized. We suggested that the dependence of contract meaning on linguistic cooperation is pervasive and practically ineliminable. But some tests for contract interpretation, which are repeated more from habit than careful thought, have begun to delink contract meaning from the common meaning of the parties. This brief essay separates out and develops a detailed formal argument for the proposition that contract meaning depends on linguistic cooperation. Following Grice, I define “sentence meaning” as the meaning that a competent speaker of a language would attribute to a sentence independent of any knowledge of its occasion of use. I define “speaker meaning” as the meaning that a speaker intends to convey to another person within an interpersonal conversation, which often depends upon both parties relying on implicit presuppositions of linguistic cooperation. Building on these distinctions (but also departing from both in some ways), Professor Radin and I have offered a contemporary definition of the “shared meaning” of a contract. It is the meaning that the parties produced and actually agreed to based on the presupposition that both were using language cooperatively to contract. The purpose of this essay is to establish just how pervasive and practically ineliminable the presupposition of linguistic cooperation is to derive pervasive and uncontroversial aspects of contract meaning. Neither contemporary “objective” nor long-rejected “subjective” approaches to interpretation are getting contract interpretation perfectly right in some contemporary settings.

Download the article from SSRN at the link.

Didikin on Law as a Linguistic Phenomenon

Anton Didkin, Higher School of Economics, has published Law as a Linguistic Phenomenon as Law and Language Special Workshop IVR Congress 2017, Lisbon, Book of Abstracts, p. 7-8. Here is the abstract.

Law as a regulator of behavior of subjects cannot be reduced fully to other ways of regulating behavior in society. Grounds of legally significant actions allows to define the context of the application of legal rules. Every legal term, following the argument of L. Wittgenstein, when it is used depends on the "context of use" and of those conventions of usage that exists at the moment. It follows that the interpretation of the rules cannot be based solely on principles of logic and to be absolutely neutral. On the one hand, "we follow the rule blindly" (L. Wittgenstein), but at the same time, repeatability of the behaviour of others and the opportunity to observe them (by analogy with mathematical rules of addition or multiplication) promotes "learning" and following the rules. From the point of view of analytical philosophy in this example, we see only the transformation of reality through linguistic forms, but from the point of view of the legal language legal environment of relationship is not determined by social context, but the linguistic forms that interpretive his physical actions in the procedural legal sense.

The full text is not available from SSRN.

Solan on the Interpretation of Legal Language @brooklynlaw

Lawrence M. Solan, Brooklyn Law School, has published The Interpretation of Legal Language at 4 Annual Review of Linguistics 337 (2018). Here is the abstract.

In everyday interactions, we do our best to resolve linguistic vagueness, ambiguity, and other indeterminacies contextually. When these problems arise in the interpretation of authoritative legal texts, by contrast, it is not abundantly clear what context is relevant, or even legitimate. This article discusses approaches that legal analysts take in resolving linguistic indeterminacy. The most basic principle is reliance on the “ordinary meaning” of a term in dispute, on the assumption that this default interpretation is most likely to be within the intention of the drafters. However, there is no clear understanding of what “ordinary meaning” means or how to find it. Most recently, judges and legal scholars have turned to using linguistic corpora to assist in determining ordinary meaning in such cases. Other cases, focusing on the resolution of syntactic or semantic ambiguity, are less common. Courts in these cases sometimes resort to legally based “tiebreakers,” such as the rule of lenity, which requires courts to resolve ambiguity in favor of the accused in criminal cases.

The full text is not available for download.

Call For Papers: Jurilinguistics II: Interdisciplinary Approaches To the Study of Language and Law

Jurilinguistics II: Interdisciplinary Approaches to the Study of Language and Law

Universidad Pablo de Olavide (Seville, Spain) - October 25th and 26th, 2018

http://www.jurilinguistica.com

Dear colleague,

We hope that this message reaches you well. You may find attached the Call for Papers for the symposium Jurilinguistics II: Interdisciplinary Approaches to the Study of Language and Law, to be held at the Universidad Pablo de Olavide (Seville, Spain) on 25-26 October 2018. After the successful first edition in 2016, we have decided to continue this initiative, which aims at offering a solid background not only into the professionalisation in language and Law; but also at exploring new areas of study and/or research. This time, we are pleased to announce that our confirmed keynote speakers will be Carmen Bestué (Autonomous University of Barcelona, Spain), Jan Engberg (Aarhus University, Denmark), Eva Pons (University of Barcelona, Spain) and Lawrence Solan (Brooklyn Law School, United States).  

To this regard, the organising committee would like to receive proposals of papers and/or panels on the following relevant topics, but not restricted:

·         Legal Translation

·         Court Translation and Interpreting and international asylum seeking

·         Translation and Interpreting at international and European institutions

·         Legal language: research, teaching and learning

·         Legal training for translators and interpreters: regulation, professional and ethical issues of Legal, Sworn and Court Translation

·         Bilingual teaching and/or learning in Law

·         Linguistic research methods applied to Law

·         Terminological research in Law

·         Legal corpus analysis

·         Accessibility in Courts: sign language and other means of accessibility in legal settings

·         Processing and drafting of multilingual documents in international organisations

·         Law and multilingualism: bilingual and multilingual legislation

·         Translation and Interpreting in court settings and international Police cooperation

·         Human rights and language: the right to interpreting

·         Transsystemic approaches to the study of Comparative Law and language

·         Linguistic and intercultural mediation in legal settings

·         Minoritised languages: legal language, terminological normalization, planning

We welcome proposals from professionals and researchers in both disciplines. Abstract submissions (in English or Spanish) should include a title and a 400-word summary of the paper, along with a brief biography of the author(s). These details should be submitted electronically to jurilinguistica@upo.es before March 1st, 2018.

All the relevant information can be found on the conference official website (http//www.jurilinguistica.com), but you may address any queries to the submissions e-mail.

We hope that the topics to be covered in our event are of interest to you, and we would kindly appreciate if you could circulate the Call for Papers (which you may download here) among your colleagues.

Looking forward to your participation and hearing more back from you.

The organising committee

Juan Jiménez Salcedo (Universidad Pablo de Olavide, Spain)

Javier Moreno Rivero (University of California, Los Angeles)