The Ordinary Lawyer Corpus: The Federalist Papers Approach.

• Author: Thorne, Samantha

Introduction

Corpus linguistics ("CL") is gaining steam in courts and in journals. Though neither a Harry Potter incantation (1) nor a CSI forensic investigative procedure, (2) CL helps courts place ordinary language usage in context. By examining large corpora of written and transcribed words, judges can more objectively determine how people understand legal texts and, in turn, how they as judges ought to interpret ambiguous legal texts.

Yet we are not to the point of Supreme Court justices declaring "we are all corpus linguists now." (3) CL is well acquainted with criticism. But rather than disparaging the tool itself, many critics really object to how a particular CL analysis is structured based on the critic and corpus linguist having competing interpretive theories. (4) Interpretive approaches undergird the CL analysis and come to light when answering whether CL should value a general speech community over a more specialized one, public meaning over speaker intent, and (if prioritizing public meaning) whether it is public meaning today or at the time of enactment. (5) These issues lie at the heart of selecting the relevant speech community and thus the proper corpus for a CL analysis.

Many CL analyses in the literature have prioritized contemporary public meaning based on a general speech community. (6) This Note does the same. But rather than choosing the broader public or the "ordinary person" as the relevant speech community, this Note focuses on lawyers (the "ordinary lawyer"). Despite lawyers' large role in connecting ordinary people to courts, their voices are silent in CL analyses. No corpus consisting of words written entirely by lawyers exists.

While the lawyer voice has been silent in CL, it has not been silent in other methods of discerning ordinary meaning. First, publications that employ survey methods to find ordinary meaning import a legal perspective. Professor Kevin Tobia surveys law students and U.S. judges in Testing Ordinary Meaning, (7) while authors of Statutory Interpretation from the Outside survey 1L law students. (8)

Second, textualism has considered a lawyer perspective. Then-Professor Amy Coney Barrett explained in Congressional Insiders and Outsiders that Justice "Scalia was not always clear about whether the prototypical reader is an ordinary member of the public or a lawyer." (9) At times, "he treated lawyers as the relevant linguistic community" since "one can hardly claim that the ordinary guest at a cocktail party would be aware of the ancient principles of common law...." (10) Justice Barrett highlighted that "[m]ore should be said about whether and when a court should interpret statutes through the eyes of an ordinary lawyer rather than an ordinary person." (11) The fact that these methods of finding ordinary meaning value the lawyer perspective raises the question of why CL has not followed their lead.

Even prioritizing the lawyer voice in CL analyses may be worthwhile. Professors John McGinnis and Michael Rappaport address this. (12) They argue that the relevant interpretive rules that existed at a document's time of enactment bind how judges interpret the document in the future. (13) In the case of the Constitution, this rule was a "legal interpretive rule": looking to the lawyer's understanding of legal documents. This rule seems to extend to statutes. (14) Provided this phenomenon, why does the CL literature not prioritize ordinary meaning based on a general ordinary lawyer corpus?

Two plausible explanations exist. First, no one has made a strong enough normative argument for choosing lawyers as a relevant speech community yet. Second, a lawyer-focused corpus does not appear to exist. This Note addresses both blind spots.

Part II details the legal theory underpinning the "ordinary lawyer" CL analysis. I argue that statutory register, modern practice, and history support a law of interpretation of prioritizing a lawyer perspective in finding ordinary meaning. Part III highlights the goals and methods of constructing an "ordinary lawyer" corpus. Part IV summarizes the three cases undergoing an ordinary lawyer CL analysis (McBoyle v. United States, United States v. Muscarello, and Taniguchi v. Kan Pacific Saipan, Ltd.). This section discusses the cases' interpretive questions and the outcomes of Justice Lee and Professor Mouritsen's 2018 ordinary person CL analyses. Part V details the results of the three cases' ordinary lawyer CL analysis and compares them to Justice Lee and Professor Mouritsen's ordinary person corpus results of the same cases. Finally, Part VI concludes the Note, considering some implications of the CL ordinary lawyer analysis and potential next steps.

1. Legal Theory: Why a Lawyer Speech Community?

   1. Law of Interpretation

      Deferring to lawyers' understandings of legal documents is a background law of interpretation. When ambiguity stumps courts, Professors William Baude and Stephen Sachs argue that a general "law of interpretation" should fill "gaps that would otherwise be filled by the interpreter's normative priors." (15) This is the idea that "a system of established rules of construction might make the process of statutory interpretation more predictable, effective, and even legitimate." (16) Interpretive rules bind legal arguments since they "allo[w] us to agree on what our rules are precisely so that we can debate whether to change them." (17)

      A law of interpretation requires normative support, which Professors McGinnis and Rappaport provide. They advocate that the determinative law of interpretation in constitutional contexts is an "original methods" approach, defined as looking to how individuals at the time of enactment expected courts and readers to resolve interpretive questions that arose from the Constitution. (18) The original method for interpreting the Constitution is to adopt a "legal interpretive rule": deferring to the lawyer community's linguistic practice and prioritizing its understanding of legal documents. (19) Professors McGinnis and Rappaport state that statutes and other legal documents at the time of the Constitution's enactment share the same legal interpretive rules as the Constitution. (20) They also state that the legal interpretive rule applies whether one prioritizes original intent or original meaning. (21) For original intent, enactors expected their words to be understood based on background interpretive rules: how one with formally endowed legal knowledge would approach finding meaning. (22) For original meaning, the broader public understood that a lawyer's interpretation of the document would trump the layperson's. (23) This does not mean that deferring to lawyers' understandings of legal texts requires words to be read as legal terms of art: lawyers often interpret language ordinarily. (24) Interestingly, Professors McGinnis and Rappaport argue that using original methods tethers statutory analyses to the time of enactment and originalist principles. (25) This tether could mean that CL analyses are not beholden to corpora that only capture Framer or congressional intent at the time of enactment, or the public's understanding of words at that time.

      If original methods trump more minute originalist inquiries into public understanding or speaker intent at the time of enactment, prioritizing legal interpretive rules has strong implications for CL. First, focusing on the lawyer perspective overcomes temporal concerns with CL corpora. Choosing a corpus to find ordinary meaning relies just as much on answering "meaning as of when?" as answering "whose meaning?" (26) One may advocate looking only at word usage surrounding a statute's time of enactment and avoiding modern corpora like the NOW Corpus (assuming that the relevant enactment time is before NOW's start date). (27) Because a lawyer corpus is an application of the original method of legal interpretive rules, originalists have more flexibility in choosing an adequate CL corpus when using a lawyer-focused corpus. Second, a lawyer corpus and its original method application help bridge an enduring division perennial to statutory interpretation: speaker intent versus reader understanding. This Note prioritizes ordinary meaning over intent because it aligns well with "our understanding of what the rule of law entails," and collective intent and original expectations are nebulous concepts. (28) Ordinary meaning also better assuages concerns related to public notice, reliance interests, consistent application, and respect to legislative will while yielding "greater predictability than any other single methodology." (29) But it is important to note that this law of interpretation stands regardless of prioritizing intent or meaning. Applying Professors McGinnis and Rapport's original methods theory to statutes since the Founding Era, statutory speakers intend, and statutory readers understand, that people read statutes in accordance with background legal interpretative rules.

   2. Statutory Register

      Register analysis supports this law of interpretation of prioritizing the lawyer perspective. Justice Thomas Lee and Professor Stephen Mouritsen assert that a search for ordinary meaning must "address the differences in various linguistic registers." (30) They connect ordinary meaning to linguistic register because choosing an appropriate speech community depends on the register at issue. To analyze register, one looks at the functional relationship between language use and its situational context. Looking at this relationship helps capture extralinguistic variables essential to understanding language. In a forthcoming article, Justice Lee and his coauthors "define the key extralinguistic variables that define the statutory register" by "identifying] the mode of communication and the nature of the participants." (31) They land on three features: Statutory language "(a) is highly consequential; (b) may be produced only by a limited few who are constitutionally...