Mouritsen’s Landmark Note on Law and Corpus Linguistics

A 2005 law review article by Lawrence Solan noted in passing that corpus linguistics had potential for its application to interpreting legal texts. 38 Loyola of L.A. Law Review 2027 (2005). But the first systematic exploration and advocacy of applying the tools and methodologies of corpus linguistics to legal interpretive questions of law and corpus linguistics came in the fall of 2010, when the BYU Law Review published a note by Stephen Mouritsen, entitled The Dictionary is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning. 2010 Brigham Young University Law Review 1915. The note argued that dictionaries are the primary linguistic tool used by judges to determine the plain or ordinary meaning of words and phrases, and highlighted the deficiencies of such an approach. In its stead, the note proposed using corpus linguistics.

Here’s the abstract for Mouritsen’s The Dictionary is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning:

“Plain meaning,” said Judge Frank Easterbrook, “as a way to understand language is silly. In interesting cases, meaning is not ‘plain’; it must be imputed; and the choice among meanings must have a footing more solid than a dictionary.”

This paper proposes an empirical method for determining the “ordinary meaning” of statutory terms; an approach grounded in a linguistic methodology known as Corpus Linguistics. I begin by addressing a number of commonly held, but ultimately erroneous assumptions about the content and structure of dictionaries – assumptions that find their way into judicial reasoning with alarming frequency.

I then outline an approach to the resolution of lexical ambiguity in statutory interpretation – an approach based on Corpus Linguistics methods. Corpus Linguistics is an empirical methodology that analyzes language function and use by means of large electronic databases called corpora. A corpus is a principled collection of naturally occurring language data, typically tagged with grammatical content and searchable in such a way that the ordinary use of a given term in a given context may be ascertained.

Though Corpus Linguistics is not a panacea, the methodology has the potential to remove the determination of ordinary meaning from the black box of the judge’s mental impression and render the discussion of the ordinary meaning of statutory terms one of tangible and quantifiable reality.

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