Should the courts use corpus data sua sponte for statutory interpretation?

Here’s the abstract for Daniel Tankersley’s Beyond the Dictionary: Why SUA Sponte Judicial Use of Corpus Linguistics Is Not Appropriate for Statutory Interpretation (Feb. 1, 2018):

In interpreting statutory language, judges have often turned to the “ordinary meaning” canon, which calls for statutory terms to be given their obvious meaning where the text is clear and unambiguous. To solve any perceived ambiguities in language, judges have historically turned to dictionaries. Because of the lack of consistency of this approach, in both results and methodologies, many legal scholars and judges have looked to other methods of arriving at the elusive “ordinary meaning” of statutory terms.

One of these emerging methods, which has been endorsed by many legal scholars and a few judges, is corpus linguistics. Corpus linguistics is the analysis of language through analysis of a database (corpus) of real-world text. By analyzing statutory terms in databases of naturally-occurring context (across multiple genres), many legal scholars and judges believe a term’s ordinary meaning can be objectively and empirically shown.

This article will argue that, while corpus linguistics may have its place in the legal field, judges should not raise corpus data sua sponte in judicial opinions. To make this argument, the article will describe the many inconsistent methodologies that come about when legal scholars and judges have utilized and analyzed corpus data, in order to illustrate how the deceptively empirical data generated by the corpus is a uniquely dangerous tool for statutory interpretation. The article will also lay out some procedural objections, grounded in judicial notice and the adversarial process.

— Joe

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