July 19, 2011
A Landmark Opinion: Corpus Linguistics in the Courts
Posted by Gordon Smith

Last month I blogged about the "best student comment ever," the first law review article to rely on corpus linguistics as the basis for analysis. [See below for update.] As I have worked with corpus linguistics (through the comment's author, Stephen Mouritsen) over the past few months, I have come to conclude that it will revolutionize the study of law, at least insofar as we are attempting to understand word usages.

Today, my former colleage and current Utah Supreme Court Justice Tom Lee used corpus linguistics in a lengthy concurring opinion (the relevant section starts at page 34). In this opinion, Justice Lee is interpreting the word "custody," and he brings corpus linguistics to the fight. Of course, it's no accident that Stephen Mouritsen is Justice Lee's law clerk, but the bigger point here is that Justice Lee was persuaded -- as I am -- of the value of corpus linguistics to shed light on this interpretive question. Justice Lee's collegues are not enamored with the approach, but you can read the opinions for yourself and see who gets the better of the argument. 

This seems to be the first judicial opinion anywhere using corpus linguistics, but it will surely not be the last. If you are as intrigued by corpus linguistics as I am, you might be interested in this paper by Mark Davies, a BYU Professor of Corpus Linguistics who is a leader in this field, on how one might use the Corpus of Contemporary American English. I am told that a similar paper on the Corpus of Historical American English is forthcoming.

UPDATE: As noted by Neal Goldfarb, the first law review article to use a linguistic corpus was written by Charles Fillmore and Clark Cunningham, Using Common Sense: A Linguistic Perspective on Judicial Interpretations of 'Use a Firearm', 73 Wash. U. L.Q. 1159 (1995). Indeed, Mouritsen cites the article in his comment.

Mouritsen’s comment differs from the Fillmore and Cunningham article both in its method and its claim. Fillmore and Cunningham use corpus linguistics to examine the word "use" in an attempt to understand what it might mean to "use a firearm." They use the British National Corpus to examine the range of possible meanings of that statutory term in much the same way that a lexicographer might rely on a citation file to find usage examples.

Rather than explore the range of possible uses of a statutory term, Mouritsen relies exclusively on corpus-based data to attempt to demonstrate the “ordinary meaning” of a statutory term in a particular context. His article is the first to do this. Thanks to Neal for raising the issue, causing me to make a more precise statement about the contribution of the Mouritsen piece.

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