Lee and Mouritsen, ‘The Corpus and the Critics’

Most any approach to interpretation of the language of law begins with a search for ordinary meaning. Increasingly, judges, scholars, and practitioners are highlighting shortcomings in our means for assessing such meaning. With this in mind, we have proposed the use of the tools of corpus linguistics to take up the task. Our proposals have gained traction but also have seen significant pushback.

The search for ordinary meaning poses a series of questions that are amenable to evaluation and analysis using evidence of language usage. And we have proposed to use the tools of ‘corpus linguistics’ – tools for assessing patterns of language usage in large databases of naturally occurring language – to introduce transparent, falsifiable evidence on the questions at stake. Our critics raise a series of challenges, asserting that our methods test the wrong language community, pose notice problems, are inaccurate measures, and rest on certain fallacies.

We show that the criticisms are largely in error and ultimately highlight some of the main selling points of our proposed methods. We do so in reference to two canonical Supreme Court cases that have been discussed in the literature in this field (United States v Muscarello and Taniguchi v Kan Pacific Saipan, Ltd) and also a more recent case (Mont v United States). In analyzing these cases (particularly the most recent one), we also outline a framework for some proposed refinements to the methods we have advocated previously.

Lee, Thomas R and Mouritsen, Stephen C, The Corpus and the Critics (November 9, 2020). University of Chicago Law Review, forthcoming.

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