When a federal judge in Florida made a decision to type "sanitation" into the search bar, the COVID-19 epidemic was raging.
The federal mask requirement on planes and other public transportation is still in place despite the fact that many parts of the country have dropped it. A lawsuit challenging the mandate was brought before the judge. The law that authorizes the CDC to introduce rules around "sanitation" is the basis on which the mandate was based.
The question was posed in a way that looked at the meaning of the law. She consulted a database of language that was built by a professor at a university. She found that the wordsanitation was used to mean making something clean, not as a way to keep it clean. She decided that masks aren't "sanitation"
The mask mandate was overturned, one of the final steps in the defanging of public health authorities.
The use of corpora to answer legal questions has grown in popularity in some legal circles. Judges on the Michigan Supreme Court and the Utah Supreme Court have used it, as well as the US Supreme Court during oral arguments for the first time.
Kevin Tobia is a professor at Georgetown Law. It is only going to get bigger.
“It’s only going to continue to grow.”
A large database of written language can contain hundreds of millions of lines of text or more. Linguists use corpora to break down how language is used in research.
Linguists worry that judges aren't trained to use the tools correctly. Mark Davies, the linguistics professor who built the Corpus of Contemporary American English, is worried that judges will spend their lunch hour doing quick-and- dirty searches of corpora, and getting data that will inform their opinion. The tools most used by judges are the twocorpora.
“It really worries me that naive judges would be spending their lunch hour doing quick-and-dirty searches of corpora”
A group of judges who lean conservative use corpora to appeal. Textualism is a school of legal thought that calls for decisions to be based on the specific words on the page without considering the intent of the lawmakers or the legislative history. Textualism is associated with Justice Antonin Scalia and other conservative judges, but it is not exclusive to the legal profession. In a speech in 2015, Justice Elena Kagan said that they are all textivists.
Textualists can turn to a specific type of tool that is hidden by technology and big data. The historical American English contains 475 million lines of text, while the contemporary American English contains 1 billion. When corpora don't give black-and-white answers anyways, critics warn that its use by judges could create a misleading veneer of objectivity.
"I think this is another tool in the arsenal of judges and legal theorists who don't want to give reasons on the merits for accepting their interpretations of the law, but instead want to just claim an unassailable correctness because of some objective or external circumstances." It means you can do it by pressing a button.
Textualism used to rely on dictionaries. Judges use canons of construction when interpreting words that aren't defined in a statute. Judges must look for the ordinary meaning of a word in order to make a decision. An appendix dedicated to dictionaries and how to use them is included in Reading Law.
An average person in the US would understand the meaning of a word in ordinary meaning. Ordinary meaning is hard to figure out and there is no agreed-upon best practice. Dictionary definitions aren't enough James Heilpern is a senior fellow of law and linguistics at the J. Reuben Clark Law School. He says that a dictionary doesn't offer up an ordinary meaning in its definitions and that the etymology of a word doesn't say anything about how it's been used in the past.
Heilpern doesn't think dictionaries are enough to support the approach of textualists. The tradition will be infused with innovation. Tools will be developed to do our jobs better.
“We’re going to infuse this tradition with innovation”
Linguists were the ones who built thecorpora. Davies is on the same page as he was when he created the Corpus of Contemporary American English. The idea was to create a body of text that captured how words and language are used in real life.
Davies didn't think his work would end up as a legal tool. He says that he is a linguist and that he wants to look at the constructions.
Stephen went on to law school. In 2010, the author of a paper in the law review argued that judges could use linguistics to figure out the meaning of words. Justice Thomas Lee of the Utah Supreme Court had a clerk like Mouritsen.
Justice Lee made the first appearance of linguistics in a judicial opinion. According to an analysis by Georgetown professor Tobia in the University of Chicago Law Review Online, it was used in five other opinions over the course of six years. It was cited 24 times in a single year by judges in state and federal courts.
According to Tobia, most of the judges were Republican appointees. The Republican appointees were more likely to be in favor of the tool than the Democrats.
It is not surprising that textualism is associated with conservativism. Heilpern says that it doesn't have to be. He believes that the tool of linguistics is a political one.
Linguists don't know if judges are using the correct language. According to a professor of linguistics at the University of California, Santa Barbara, there are three different types of linguistic analysis. The easiest way to find a website is to search for the word Historical American English. The second uses a different type of software. People write their own code to analyze text.
The first category includes most legal linguistics. He says that the judges have learned to use the websites of the COHA and COCA. When they enter a search term, they do some very elementary counts.
They use the website to search for all the times a particular word or phrase appears in a language database and then check to see how that word or phrase is used. If 90 percent of the time one sense of the word is being used, that is how people would understand it.
Gries doesn't agree. Gries says that the most common use of a word isn't always the most common application. Legal corpora contains millions of words from TV programs, magazines, and newspapers. According to an article in the law review, a word might be used in a particular way more frequently if it is more newsworthy.
There isn't enough attention to the methodology judges are using The outcome of the analysis could be influenced by a number of small changes. He says that if you had done it differently, you would have gotten better results. According to Tobia's analysis, most legal analysis doesn't ask multiple people to analyze the same data.
“It looks like it’s this quantification, so it’s somehow more reliable, because everything is numbers.”
Even if it looks like a more objective way to answer questions, corp linguistics can't give clear-cut answers. Everything is numbers, so it is more reliable. Bernstein says it's all qualitative. Different people might describe the results of the study in different ways.
She says that if you are a good linguist, you can convince others that your descriptions are correct. There isn't a correct answer here.
Heilpern stresses to lawyers and judges that context and interpretation are the most important factors in determining whether or not to rule in a case. Better evidence can be provided to the judge bycorpus linguistics. If the judge knows what they're doing, they can use it on their own.
Bernstein isn't sure if judges have the skills to use linguistics. She says that people are saying that they can do it because they are very refined speakers. People in comparative literature are able to read language. They do a lot of interpretation of texts.
Critics are concerned because the consequences of an insufficient search affect the real world.
One of the last places people were forced to wear masks was on planes. The rules went when they did and so did most masking. According to Gries, Tobia, and other experts in the Columbia Law Review Forum, the case had major issues. Even though the words "sanitize" and "sanitary" have different meanings, the judge still searched for them. The scholars say that the judge ignored situations where "sanitation" could have meant keeping a place clean.
They wrote that the district court's evaluation of corpora is flawed.
Linguists would be more comfortable if both sides of a case did their own analysis and presented it as evidence in a trial. Heilpern thinks that would be great.
Judges think that being a judge makes them equally qualified to use a linguistic tool, according to Gries. He says he has had expert briefs thrown out. "They don't use these exact words, but they're basically saying, 'I don't need this shit, I can do it'"
Textualists say that the strategies used to find the meaning of words can pose problems if used wrong. An uncritical approach to dictionaries can be a problem for judges. They are harder to resist with a big data tool. It is a way of saying that there is a correct answer. Bernstein says that it's a lie.
Heilpern says it's not clear what the future will look like as the use of legal linguistics has grown rapidly over the past few years. He believes that the technique will be taught in law schools and that more and more judges will be familiar with it. Davies says he spoke to one Supreme Court justice and that someone he worked closely with spoke to another.
It could be a tool that everyone has to know. We are going to take steps towards that goal.
Even though Gries is a critic of the tool, he doesn't think it's bad. The spread of linguistics depends on who uses it. That's one thing if it's attorneys and experts on opposite sides of an argument. It is possible that judges are doing searches in their chambers.
It can be very good but it can be dangerous. Depending on who is doing it.
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