The main task of an appellate judge is to interpret
and understand the meaning of language.
It might be in a contract, in a statute,
in the constitution, in public law, or in private law.
A key starting question for the problem
of interpretation is to find
the ordinary meaning of language.
The corpus linguistics project,
which includes academic writing
and now a growing body of judicial opinions, identifies
some serious shortcomings with the way that the law,
the way that judges and lawyers
have been approaching the problem of ordinary meaning.
The idea of corpus linguistics
is the idea that language patterns
and language usage can be derived
from large bodies of naturally occurring language.
So a corpus is just a body of language
and corpus linguistics is simply the study of language
using large bodies of naturally occurring language.
A simple Westlaw search or a Lexus search
could understood as a corpus search,
a corpus analysis. If you're trying
to find the way that a word is used
in a body of case law,
that body of case law would be a corpus.
But the broader idea of corpus linguistic analysis of law
is if you're trying to understand
the meaning of words more generally
in our broader society, it identifies problems
with relying on dictionaries.
It identifies problems with relying
on the etymology of a word,
and it even suggests that a judge falling back
on his or her intuition with respect
to the meaning of a word is fraught,
and fraught at a minimum with a risk
of confirmation bias and motivated reasoning.
It also points out the idea that
the ordinary meaning inquiry is an empirical inquiry.
And it suggests that especially
in this age of information, empirical inquiries should
be answered using data.
And we now have available to us a set
of tools, a set of principles and theories developed
in the field of linguistics, specifically
by corpus linguists, that can give us data
and allow us to address the shortcomings
of traditional methods of trying
to find the ordinary meaning of the words of the law.
The tools of corpus linguistics
can be employed with respect
to any question of ordinary meaning
that might arise in the language of the law.
In some sense, it may seem most significant
to utilize these tools with respect
to historical questions of meaning.
It may be most important in the following sense:
linguists have made the observation
that our language is always in a state of change.
We talk about the problem of linguistic drift
or semantic shift.
The English that was spoken in the eighteenth century
during the period of the founding is more foreign to me.
I have some understanding of it because I've read some
historical documents and historical materials,
but it's very important that
because my intuition doesn't take me back to that era,
it's very important to have access to
corpus tools that are historically based.
One of the big advantages to corpus linguistic analysis,
to what it gives us over traditional, existing
tools of interpretation is its transparency
and that it is giving us data that give
rise to the possibility of falsification
or verification by someone else.
In this sense, it is more scientific.
It is more data-driven and data-based.
To me, it's an embarrassment that
we don't have a field called law and linguistics.
It's an embarrassment in that
the very thing that we judges do the most,
at least appellate judges do the most,
which is to try to disambiguate the meaning of language,
is a problem that an entire field has devoted
its academic life to, the field of linguistics.