November 21, 2018
Corpus Linguistics in the US Supreme Court (again)
Posted by Gordon Smith

Corpus linguistics made its debut in federal court in February 2018 when Judge Dabney L. Friedrich cited COHA in an opinion to demonstrate that a relevant statutory term was a term of art at the time the statute was passed: "[T]he New York Times database in Lexis/Nexis, and the US News database in Westlaw ... contain virtually no record of 1934-era language usage, but a more robust database [COHA] indicates that the phrase rural district was used with some frequency in the first half of the twentieth century before mostly falling out of usage in the second half. This suggests that even if rural district does not carry meaning distinct from its individual words today, it did in 1934." American Bankers Association v. National Credit Union Administration, 306 F.Supp.3d 44 (D.D.C. 2018).

A few months later, James Heilpern -- a Law and Corpus Linguistics Fellow at BYU Law School -- filed an amicus brief in Lucia v. SEC. The brief was signed by 15 other corpus linguists. Although the Court did not cite the brief, it did embrace the reasoning (see here) and cited Jenn Mascott's Stanford Law Review article, which used a BYU Law Corpus. The following day, in Carpenter v. United States, Justice Thomas cited the Corpus of Historical American English (COHA) and the Corpus of Founding Era American English (COFEA), both created at BYU.

Carpenter is the first citation to corpus linguistics in the US Supreme Court, but I have a feeling we will see another appearance soon, perhaps in Rimini Street, Inc. v. Oracle USA, Inc., a case involving the interpretation of "full costs" under the Copyright Act. Here is the amicus brief, again from James Heilpern who is again accompanied by other corpus linguists, arguing:

the linguistic evidence shows that the "full" in Section 505 should be considered a "delexicalized" adjective, that is, an adjective whose purpose is to draw attention to and underline an attribute already fundamental to the nature of the noun that is already embedded in the meaning of the noun. "Full" often serves to emphasize the completeness of an object that
is already presumed to be complete, like "full deck of cards," "full set of teeth," and "full costs."

Read the whole brief. This is really good stuff.

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