On the Perils of Using Corpus Linguistics to Interpret Statutes
In Legal Corpus Linguistics and the Half-Empirical Attitude, Professor Anya Bernstein provides an illuminating and forceful critique of the claim that corpus linguistics—the study of patterns of language usage across a wide array of English-language sources—should be used to “empirically” derive the ordinary meaning of words used in legal texts. Corpus linguistics has been a hot topic in statutory and constitutional interpretation for the past several years, as a growing number of judges, scholars, litigants, and amicus curiae have pressed for its use in cases that turn on the meaning of a legal term or phrase. Perhaps most notably, in an article titled Judging Ordinary Meaning Utah Supreme Court Associate Chief Justice Thomas R. Lee and his former law clerk Stephen Mouritsen have argued that the concept of “ordinary meaning” implicates empirical questions that the field of corpus linguistics is well-designed to answer—and have urged courts to “import [corpus linguistics] methods into the modern theory and practice of interpretation.”
Professor Bernstein’s thoughtful article astutely identifies several serious flaws with such an interpretive move, calling into question the push to use corpus linguistics to determine statutory or constitutional meaning and the effort to use corpus linguistics to add an empirical dimension to the search for ordinary meaning. Her central critique is that the use of corpus linguistics to determine the meaning of legal texts mismatches methods and goals. She contends, for example, that while corpus linguistics in linguistics makes an empirical claim to illuminate truths about how language in the corpus is used, the use of corpus linguistics in legal interpretation misuses empirical methods to make a normative claim—i.e., that the usage patterns identified through corpus analysis ought to influence the interpretation of legal texts. Bernstein labels this attempt to treat normative claims as empirical a “half-empirical” attitude. And she meticulously questions the assumptions underlying that claim. Continue reading "On the Perils of Using Corpus Linguistics to Interpret Statutes"
