Kevin Tobia, ‘The Corpus and the Courts’

ABSTRACT
The legal corpus linguistics movement is one of the most exciting recent developments in legal theory. Justice Thomas R Lee and Stephen C Mouritsen are its pioneers, and their new article thoughtfully responds to critics. Here, Part I applauds their response as a cautious account of how those methods might provide relevant evidence about ordinary meaning in legal interpretation. Some disagreements persist, but The Corpus and the Critics makes significant progress in academic debates about legal interpretation. Part II turns from theory to practice: Judges are increasingly conducting sua sponte corpus linguistic analyses in their opinions, and this Essay collects and analyzes these cases. Corpus linguistics is theorized as apolitical, neutral, and objective. But in practice, it has been used largely by Republican-appointed judges, sometimes inconsistently with standards that Lee and Mouritsen recently endorsed. This Essay outlines a set of best practices, endorsed both by Lee and Mouritsen’s new cautious account and by many critics of the movement. If courts continue to employ legal corpus linguistics methods, the practice should be guided by at least these shared standards.

Kevin Tobia, The Corpus and the Courts, University of Chicago Law Review Online, 5 March.

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