Linguistics in law.

• Author: Golanski, Alani

1. INTRODUCTION

   Many judges react against judicial activism. The politics are notorious. The methodology, though, is not necessarily controversial. Deciding "objectively" by following precedent, tried principles, and--as much as possible--the "plain meaning" of statutory terms are strategies for constraining discretion. Some legal scholars say that such judges aim to decide in a scientific manner. (1) In particular, these scholars see plain-meaning analysis as linguistics, and linguistics as science. (2)

   Scholars who submit to the notion that statutory interpretation may often be an exercise in linguistics tout that discipline's commitment to the empirical testing of conclusions. (3) Their view is that judges opposed to activism find an objective anchor in linguistic techniques. Thinkers hostile to that notion say that such judges "pretend[] they mechanically follow linguistic science" (4) and sometimes adopt a sort of linguistic approach to bolster a decision made on other grounds with an aura of scientific credibility. (5) So even those thinkers presuppose that a number of judges occasionally make use of linguistic analysis. (6)

   Commentators who favor broader judicial reliance on linguistics argue that "the methods of linguistic science can significantly inform ... [judges'] innate `common sense' about their own language, thus providing some objective and principled ways to deliberate over hard cases of interpretation." (7) These scholars see Justice Scalia as the paladin of law's linguistic turn, which they call "`the new textualism." (8) Their point of departure is Justice Scalia's summoning of the "plain meaning" of statutory language, and his concomitant de-emphasis upon legislative histories. (9)

   For Justice Scalia, an objective appraisal of ordinary meaning is more reliable and less prone to subjective judicial discretion than is delving into legislative histories. (10) His opinions resist the doctrine "that if the legislative history of an enactment reveals a `clearly expressed legislative intention contrary to [the enactment's] language,' the Court is required to `question the strong presumption that Congress expresses its intent through the language it chooses.'" (11) This doctrine, says Justice Scalia, is "an ill-advised deviation from the venerable principle that if the language of a statute is clear, that language must be given effect--at least in the absence of a patent absurdity." (12)

   This article questions the link between linguistics and statutory construction, as perceived by legal scholars. Toward its end, the article revisits Plain Meaning and Hard Cases, the important paper written by Clark Cunningham and three linguists--most familiarly Judith N. Levi--that appeared in the Yale Law Journal in 1994, (13) which also spurred the Spring 1995 Law and Linguistics Conference at Northwestern University. (14) At issue here will be Cunningham/Levi's recommendation that linguists with expertise in areas of word use, meaning, and reference, be brought into legal cases to "provide focused and informed analyses of the language issues in question." (15)

   This article's goal is modest--it is to explain that law and linguistics pursue different ends, and that for this reason, linguists construing statutes will miss legally decisive issues. More importantly, courts relying on linguists--in the manner the new textualists advocate--will have to scrutinize linguistic findings closely and rectify them, or risk issuing assessments that fail to cohere with the decision-making guidelines announced in relevant precedents. The article does not object to a cooperative arrangement between law and linguistics, or to any other interdisciplinary approach; indeed, linguistics and the other scientific and social scientific disciplines influence legal work and decision making in a variety of ways that scholars may beneficially explore. There are, however, justifiable grounds for resisting proposals that assign non-legal experts an elevated role in the adjudicatory process.

   Specifically addressing the Cunningham/Levi proposal, this article first discusses contemporary linguistics. Part II shows that modern "Chomskyan" linguistics constructs a theory of language competence and of the outputs of that competence. Because linguistic science premises its findings on unconscious cognitive structures and capacities, that discipline defines its activities and research goals in psychological terms. Although linguists routinely analyze the structure of natural language in abstraction from the cognitive mechanisms by which we learn and use language, (16) their underlying premise is that linguistics is a branch of psychology. (17)

   Part III then explains that, by contrast, law's interpretive task is to construe the linguistic outputs of a finely circumscribed political community, the legislature. This Part examines three illustrative Supreme Court cases that Cunningham/Levi also discuss. As these cases show, not only does the Court (unlike the linguistics researcher) primarily interpret language that is a product of drafting contingencies and political compromise, but it is also geared to constantly ask whether the phrasing at issue may allow for a certain construction that is consistent with a favored policy. Whether plain is defined as "ordinary" or "unambiguous," (18) judicial scrutiny of plain meaning is always embedded in a context of competing policy interests. Accordingly, at times there may be little to distinguish two pieces of statutory language that the court construes quite differently on policy grounds.

   Finally, Part IV reviews Cunningham/Levi's approach to the three cases examined in Part III. Two cases were pending, certiorari having been granted, when Plain Meaning and Hard Cases appeared. In one or two instances, the Supreme Court, or a particular Justice, in fact adopted a point made by Cunningham/Levi. That is not surprising, both because their essay is important, as noted, and because judges rely upon extralegal sources from time to time for various reasons. But the full Cunningham/Levi analyses are not suitable legal reasoning. They flow from the linguist's training and milieu, examined in Part II, and not from a judicial methodology.

2. LINGUISTICS' PSYCHOLOGICAL PROGRAM

   1. Chomsky's Enterprise

      Noam Chomsky's linguistic theories have transformed his discipline. (19) Chomsky premises his view on the assumption that a person competent in a language knows or "cognizes" that language. (20) With Chomsky, the study of linguistic competence displaced the study of language in the world. As Liliane Haegeman writes, "[t]he shift of focus from language itself to the native speaker's knowledge of language is the major feature of the Chomskyan tradition." (21) Because the prevailing view is that a descriptively adequate grammar must explore the internal processes by which the native speaker produces and interprets sentences, the linguist's epistemological pursuit is an "internalist exploration." (22)

      It is useful to briefly review the roots of Chomsky's program as these may concern the domain of linguistic study. Chomsky's initial sympathies were with traditional grammars and in opposition to a structuralist or "descriptive" linguistics, which was primarily interested in the arrangement of facts. (23) Describing arrangements of linguistic facts based on direct observation is a practice that characterized the positivist taxonomic model. (24) Today, linguists and language philosophers embrace Chomsky's refutation of the positivists' strictly observational methodology, and, in contrast, welcome concern with "`high-level' relational properties" and "the underlying generalizations of the language." (25)

      Given Chomsky's predisposition, why was he attracted to traditional grammar? As Chomsky explained it, traditional grammar includes a "rich descriptive apparatus ... [that] far exceeds the limits of the taxonomic model," and has a goal "as far-reaching as that of a generative grammar," namely, "to provide its user with the ability to understand an arbitrary sentence of the language, and to form and employ it properly on the appropriate occasion." (26)

      Although Chomsky's program was "not necessarily incompatible" with that of the structuralists, his "different intellectual enterprise[]" was to propose a linguistic undertaking that made explicit what traditional grammar had merely presupposed. (27) More specifically, while the previous grammars had indispensably relied on the intuition and intellectual capacity of the user, (28) Chomsky's goal for a generative grammar was to explicitly investigate "the nature of the intuitive, unconscious knowledge, which (in particular) permits the speaker to use his language." (29) Traditionalists such as Otto Jespersen had recognized speakers' use of complex structures to generate "creative" and "`free expressions,'" but had failed to give "explicit principles for determining that these structures ... belong to the language, while other imaginable structures do not." (30)

      Focusing on speakers' everyday creative use of language, Chomsky contrasted two nineteenth-century linguistic views in order to settle upon an initial background paradigm. The general view, taken up by structuralists such as Saussure, saw language "`in the concrete sense [as] the sum of words and phrases by which any man expresses his thought.'" (31) The Saussurian study of language would be the study of signs and their grammatical properties. In this scheme, however, there is no place for the sort of "`rule-governed creativity' ... involved in the ordinary everyday use of language." (32) Instead, the scope of linguistic study is arbitrarily limited to a study of "mere artifacts." (33)

      The second, more promising (for Chomsky) nineteenth-century view was that of Humboldt, for whom die Form (the form) of language was the underlying factor inhering in each particular linguistic act. (34) Language's underlying form was...