Foreword: Lawyers and Linguists Collaborate in Using Corpus Linguistics to Produce New Insights Into Original Meaning

• Publication year: 2020

Foreword: Lawyers and Linguists Collaborate in Using Corpus Linguistics to Produce New Insights Into Original Meaning

Clark D. Cunningham

Georgia State University College of Law, cdcunningham@gsu.edu

FOREWORD: LAWYERS AND LINGUISTS COLLABORATE IN USING CORPUS LINGUISTICS TO PRODUCE NEW INSIGHTS INTO ORIGINAL MEANING

Clark D. Cunningham^*

On August 23, 2019, the Supreme Court of Idaho published a decision that sent an explicit signal to lawyers in its jurisdiction: "We . . . reference the use of corpus linguistic tools as a support for our analysis . . . and as an motivation for counsel to consider this . . . tool . . . for statutory interpretation . . . when called for in the future."¹ The Idaho decision occupied the midpoint in a forty-five-day period during which two other appellate courts also explicitly used research based on "corpus linguistics" to support statutory interpretation decisions. The first of these cases was decided by the United States Court of Appeals for the Third Circuit on August 1, 2019,² and the third decision issued in this short period was published by the Supreme Court of Utah on September 13, 2019.³

At the end of May 2019, a three-judge panel of the United States Court of Appeals for the Sixth Circuit went a step further than the "motivation" given by the Idaho Supreme Court. The panel explicitly directed the United States Department of Justice and the appointed counsel in a federal prisoner habeas case to file supplemental briefs addressing "how does" a specific linguistic corpus (the Corpus of Founding Era American English) "help inform" a determination "of the original meaning of the Article III Cases or Controversies requirement."⁴ Although the court in that case did not end up using the linguistic research that it received,⁵ a member of that panel wrote a long concurring opinion in another case decided in July 2019, explaining that "corpus linguistics is a powerful tool for discerning how the public would have understood a statute's text at the time it was enacted."⁶

Corpus linguistics has not only recently attracted judicial attention but also has been generating considerable legal scholarship. Over twenty-five law review articles have been written on the subject since 2016,⁷ including, in the past two years, several published in some of the country's leading law reviews.⁸

"Corpus linguistics" is not, as recently suggested by a tongue-in-cheek newspaper column, the name of "a singer in a punk band."⁹ A digitized data set representing actual language—typically a very large data set—is called by the science of linguistics a "corpus" (plural: corpora).¹⁰ "Corpus linguistics" is a short-hand term applied to a wide variety of ways linguists use computer technology to acquire, store, and process such data and then analyze it to document and describe patterns of natural language usage, often to solve real-world problems.¹¹ The recent virtual explosion of interest in using linguistic analysis of corpus data for legal interpretation can be traced back¹² to a 2010 law review student note by Stephen Mouritsen¹³ and a 2011 concurring opinion by Utah Supreme Court Justice Thomas Rex Lee,¹⁴ written while Mouritsen was clerking for Justice Lee.

To my knowledge, with the exception of that 2011 concurrence by Justice Lee, none of the judicial opinions published referencing linguistic analysis of corpus data were developed with the assistance of someone with formal training in linguistics. Likewise, with a few notable exceptions, the many law review articles discussing corpus linguistics published prior to 2020 do not include an author who holds a Ph.D. in linguistics or an academic post in that field.¹⁵ To promote and demonstrate the value of law-linguistic collaboration in applying corpus linguistics to legal interpretation, the College of Law and the Department of Applied Linguistics and English as a Second Language at Georgia State University jointly sponsored a full-day workshop on October 18, 2019.¹⁶ Four of the five papers presented at that workshop were coauthored by one or more internationally-known linguists,¹⁷ and the two lawyers who coauthored the fifth paper received mentoring from one of the founding figures in the field.¹⁸ The five papers presented at this workshop were then developed into the five articles comprising this Special Issue on Law and Linguistics. The United States Constitution prohibits federal officials from receiving any "present, Emolument, Office or Title" from a foreign state without the consent of Congress.¹⁹ However, in trying to determine the meaning of emolument, courts are confronted with a term that might as well be a foreign word from an unknown language because the word emolument has virtually vanished from contemporary American English. At the time of writing, cases are pending in three federal circuits alleging that President Donald Trump is violating the Constitution by receiving business-based revenue generated in part from payments by foreign states. These cases prompted Jesse Egbert and me to undertake a corpus linguistics research project that asked: "Is there evidence that Americans in the Founding Era could have used the word emolument to describe revenue derived from ownership of a hotel?" Our analysis of data from the Corpus of Founding Era American English, reported in this issue's first article, Using Empirical Data to Investigate the Original Meaning of "Emolument" in the Constitution,²⁰ found that emolument was frequently used with modifying adjectives and prepositional phrases, indicating that eighteenth-century writers often needed to constrain or specify the word's broad meaning. We further discovered that emolument often functioned as a catch-all term of inclusion and that its use in lists ending "and...