3. Judging and Mitigating Bias . . . . . . . . . . . . . . . . . . . . . . 807
C. NEW QUESTIONS THAT WE SHOULD BE ANSWERING . . . . . . . . . . . . . . 808
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 809
A new method for the interpretation of legal texts, such as constitutions, stat-
utes, and regulations, is spreading through the U.S. judiciary.
Proponents of the
method, known as “corpus linguistics,” argue that it is a more reliable, empirical
way of discerning the public meaning of a word than resorting to dictionaries,
legislative history, or judges’ intuitions.
Many federal and state courts have
applied the method, including Justice Thomas of the U.S. Supreme Court.
In essence, the corpus linguistics method allows a user to search a large body
of text, or corpus, for a particular word to identify patterns in usage that reveal in-
formation about a word’s meaning. For example, a user may track a word’s fre-
quency over time, identify the words that most frequently occur in close vicinity
to that search term, or review each instance of a word’s usage in context.
1. See infra note 3 and accompanying text.
2. See, e.g., Neal Goldfarb, A Lawyer’s Introduction to Meaning in the Framework of Corpus
Linguistics, 2017 BYU L. REV. 1359, 1367–68; Thomas R. Lee & James C. Phillips, Data-Driven
Originalism, 167 U. PA. L. REV. 261, 289–90, 292 (2019); Thomas R. Lee & Stephen C. Mouritsen,
Judging Ordinary Meaning, 127 YALE L.J. 788, 829 (2018); Stephen C. Mouritsen, Hard Cases and
Hard Data: Assessing Corpus Linguistics as an Empirical Path to Plain Meaning, 13 COLUM. SCI. &
TECH. L. REV. 156, 202 (2011).
3. See, e.g.
, Carpenter v. United States, 138 S. Ct. 2206
, 2238 & n.4 (2018) (Thomas, J., dissenting)
(using corpus linguistics as evidence that “search” was not associated with “reasonable expectation of
privacy”); Wilson v. Safelite Grp., Inc., 930 F.3d 429
, 442 (6th Cir. 2019) (Thapar, J., concurring)
(describing corpus linguistics as “an important tool . . . in figuring out the meaning of a term”); People v.
Harris, 885 N.W.2d 832
, 839 (Mich. 2016) (using corpus linguistics to show that “information,” used
alone, may refer to both true and false information); Fire Ins. Exch. v. Oltmanns, 2018 UT 10, ¶ 57 n.9,
416 P.3d 1148
, 1163 n.9 (justifying the use of corpus linguistics due to the weaknesses of human
intuition); Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89, ¶
99, 416 P.3d 663
, 691 (describing
corpus linguistics’ tendency to focus on semantics and pragmatics); Craig v. Provo City, 2016 UT 40, ¶
26 n.3, 389 P.3d 423
, 428 n.3 (commending Provo City for briefing on corpus linguistics); State v. J.M.
that “abortion procedure” refers to a medical procedure); J.M.W., III v. T.I.Z., 2011 UT 38, ¶ 89 & n.21,
266 P.3d 702
, 724 & n.21 (Lee, J., concurring in part and concurring in the judgment) (using corpus
linguistics to show that “custody” is more closely associated with “divorce” than “adoption”); Muddy
Boys, Inc. v. Dep’t of Commerce, 2019 UT App 33, ¶¶
25–26, 440 P.3d 741
, 748–49 (stating that
corpus linguistics requires large databases rather than small samplings); O’Hearon v. Hansen, 2017 UT
(Lee, Associate C.J., concurring in part and concurring in the judgment)); see also Rasabout, 2015 UT
72, ¶¶ 12–13, ¶ 17, 356 P.3d at 1263–64 (using the dictionary to interpret the term “discharge,” and
noting Associate Chief Justice Lee’s suggestion to use corpus linguistics instead); id. ¶ 36, 356 P.3d at
1269 (Durrant, C.J., concurring in part and concurring in the judgment) (explaining that corpus
linguistics could be useful in interpreting “the ordinary meaning of statutory terms”); id. ¶¶ 57–65, 356
P.3d at 1275–77 (Lee, Associate C.J., concurring in part and concurring in the judgment) (proposing the
use of corpus linguistics as an additional tool for statutory interpretation).
4. See infra Section I.A.
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