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.

Rabb on Metacanons: Comparative Textualism @intisarrabb @Harvard_Law

Intisar A. Rabb, Harvard Law School, has published Metacanons: Comparative Textualism as Harvard Public Law Working Paper No. 22-24. Here is the abstract.

This Paper uncovers a striking feature of statutory interpretation that joins the rise of “new new new” textualism on today’s Supreme Court and elsewhere. It reveals the increasing sway of the now infamous canons of construction across two very different legal systems: American law and Islamic law. These two systems of law share many of the same legal canons despite the radically different institutional structures, origins, and commitments of each system historically and today. They are perhaps maximally different. Probing each system individually then juxtaposing the two reveals shared, ‘meta’ features of legal canons between them. To be sure, such comparison may seem improbable, difficult, or meaningless at first blush. But after overcoming hurdles of the improbable, it becomes clear that the existence, continued use, and recent resurgence of legal canons in both systems suggest that the common features of their shared canons—metacanons—play out in almost every interpretation. This Article explores the nexus between the two. The idea of metacanons, beyond showing the value of comparison, helps delineate how and why the current U.S. Supreme Court must choose between using legal canons to bolster rule-of-law coherence or to mediate democratic values. My basic argument is twofold. First, I argue that courts demonstrably have abandoned the notion of court-congress dialogue in applications of legal canons today in ways that resonate closely with the differing structures of Islamic law Muslim jurists in older systems of Islamic law had initially adopted a similar notion but recognized as fictive long ago. Second, I argue that the facts of similar legal canons in disparate legal systems, both lacking in institutional dialogue, meaningfully informs the raging debates about both the means and the ends of statutory interpretation. These facts call for resolution and new approaches to the judicial use of legal canons, with an eye on metacanonical inquiries. In the end, I argue that our era of declining (or fictitious) institutional dialogue between Courts and Congress mean that legal canons in today’s Supreme Court are once again interpretive tools solely for judicial interpreters, who now face a choice. Judges who have dispensed with the myth of dialogue should seek more coherent use of canons to bolster rule-of-law values. Identifying the universal features of metacanons can aid that path. Or, judges should re-open the channels of dialogue and deploy the canons to mediate the ongoing cases and controversies about changing values in light of constitutional norms and congressional preferences. This is a path that Islamic law judges did not (and could not) pursue. But thrown into relief by metacanons, this path offers a unique prospect for advancing American democracy.

Download the article from SSRN at the link.

Schauer on Constructing Interpretation

Frederick Schauer, University of Virginia School of Law, is publishing Constructing Interpretation in the Boston University Law Review. Here is the abstract.

This paper, a substantially revised version of a paper previously entitled (and posted as) “A Critical Examination of the Distinction between Interpretation and Construction,” argues not only that the justifiably prominent and valuable distinction between interpretation and construction loses much of its value when applied to technical language, but also that the point of the distinction is undercut by the existence, following Hart and Searle, of constitutive legal language. When legal instruments, whether contracts or statutes or constitutions, create types of behavior that would otherwise not exist, as opposed to regulating antecedently existing behavioral possibilities, it becomes impossible to interpret the language that constitutes behavior without taking into account all of the legal goals and principles that proponents of the distinction would relegate to the “construction zone.” For such constitutive language, just as with technical language, all of the values, aims, and principles of law in general or of a particular legal provision pervade both sides of the distinction, sharply reducing the importance of the distinction for such language.

Download the article from SSRN at the link.

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.

Solan and Gales on Finding Ordinary Meaning in Law: The Judge, the Dictionary, or the Corpus?

Lawrence M. Solan, Brooklyn Law School, and Tammy A. Gales, Hofstra University, are publishing Finding Ordinary Meaning in Law: The Judge, the Dictionary or the Corpus? in The International Journal: Journal of Legal Discourse. Here is the 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.

Download the article from SSRN at the link. 

Baude and Sachs on the Law of Interpretation

William Baude, University of Chicago Law School, and Stephen E. Sachs, Duke University School of Law, are publishing The Law of Interpretation in the Harvard Law Review. Here is the abstract.

How should we interpret legal instruments? How do we identify the law they create? Current approaches largely fall into two broad camps. The standard picture of interpretation is focused on language, using various linguistic conventions to discover a document's meaning or a drafter's intent. Those who see language as less determinate take a more skeptical view, urging judges to make interpretive choices on policy grounds. Yet both approaches neglect the most important resource available: the already applicable rules of law. Legal interpretation is neither a subfield of linguistics nor an exercise in policymaking. Rather, it is deeply shaped by preexisting legal rules. These rules tell us what legal materials to read and how to read them. Like other parts of the law, what we call "the law of interpretation" has a claim to guide the actions of judges, officials, and private interpreters -- even if it isn't ideal. We argue that legal interpretive rules are conceptually possible, normatively sensible, and actually part of our legal system. This Article thus reframes the theory of statutory and constitutional interpretation, distinguishing purely linguistic questions from legal questions to which language offers no unique answer. It also has two concrete implications of note. It provides a framework for analyzing the canons of interpretation, determining whether they are legally valid and how much authority they bear. And it helps resolve debates over constitutional "interpretation" and "construction," explaining how construction can go beyond the text but not beyond the law.

Download the article from SSRN at the link.

Multilingualism and Statutory Interpretation

Lawrence M. Solan, Brooklyn Law School, has published Multilingualism and Morality in Statutory Interpretation, at Language & Law/Linguagem e Direito, Vol. 1, Issue 1 (2014). Here is the abstract. 

This article discusses some of the costs and benefits of multilingual legislation, focusing largely on Canada and the European Union. Courts interpreting these laws must take into account the different language versions, since each version is equally authoritative. Fidelity to the legislature’s will comes with very high stakes in this context, because multilingual legislative systems are most typically a means for recognizing the autonomy of minority groups, which, in exchange, cede some of that autonomy to a higher legal order. Thus, there is a special moral duty to ensure that the laws are construed faithfully at the same time that language barriers make it appear, at least on the surface, that it is more difficult to do so. Moreover, the risk of judges substituting their own values for those of the legislature when there is no single, definitive legal text, appears to become magnified in multilingual settings, creating the risk of decision making that would not stand up to moral scrutiny even in monolingual systems.

This article argues that despite the apparent difficulties inherent in multilingual legislation, it actually reduces uncertainty in meaning by creating additional data points for statutory interpreters to consider. Multilingualism does, however, lead to certain additional problems of ambiguity. These, for the most part, however, are generally resolved fairly easily. It is further argued that the European approach to interpretation, which I call Augustinian Interpretation, is likely to lead to results more faithful to the legislature’s intent than is the standard Canadian approach, called the Shared Meaning Rule. Arguments from the case law, from linguistics and from the philosophy of language are adduced to support these conclusions.

Download the article from SSRN at the link. 

Law and Linguistics

Andrei Marmor, USC Gould School of Law, has published "What Does the Law Say? Semantics and Pragmatics in Statutory Language," forthcoming in Analisi e Diritto. Here is the abstract.

The content of communication in a given speech situation often goes beyond what the speaker has explicitly said. The main purpose of this essay is to explore this aspect of linguistic communication in the legal context. The paper begins with a general outline of the dividing lines between semantics and pragmatics, laying out the main distinctions that need to be employed. Next, the paper suggests that the pragmatic aspects of statutory language differ in some important ways from the pragmatics of an ordinary conversation. The paper explains some of these differences which make the understanding of legal language somewhat problematic. Finally, the paper points toward some solutions, based on the distinction between content that is semantically implicated by an utterance and content that is implicated conversationally.

Download the paper from SSRN here.