Corpus Linguistics and the Law
Lately, there has been a fledgling movement within the legal profession to use corpus linguistics as a tool to interpret words within the context of their use; to interpret the words of a statute. After using this tool in his opinion deciding an obstruction-of-justice case in June involving Detroit Police officers, Justice Brian Zahra discussed his approach to members of the State Bar of Michigan last month at the SBM's annual meeting in Grand Rapids.
A corpus is a collection of texts that is representative of a given language. For example, a corpus could be the Michigan Compiled Laws; our collection of statutes here in Michigan.
According to Wikipedia, corpus linguistics is:
the study of language as expressed in corpora (samples) of "real world" text. The text-corpus method is a digestive approach for deriving a set of abstract rules, from a text, for governing a natural language, and how that language relates to and with another language; originally derived manually, corpora now are automatically derived from the source texts. Corpus linguistics proposes that reliable language analysis is more feasible with corpora collected in the field, in their natural contexts, and with minimal experimental-interference.The Internet, of course, gave rise to a convenient electronic means to compare language usage. Language scientists have made great strides in the past quarter-Century, but legal professionals are only now waking-up to the importance of this language tool.
In People v Harris, Justices Zahra and Stephen Markman both used corpus linguistics in opposing opinions to address the central legal question in the case. The issue was whether a police officer's false statement is nevertheless protected within the scope of a Michigan law that procribes a police officer’s involuntary statement from being used against the officer in a subsequent criminal proceeding.
The two justices utilized corpus linguistics to determine the precise meaning of "information" and how that word is used in the statute at issue in the case, as well as in other statutes. Justice Zahra concluded for the majority that "information" included the false statements made by the officers; Justice Markman, in dissent, concluded that "information" did not include a false statement within the meaning of the statute.
On at least one occasion, the SCOTUS used corpus linguistics in deciding the meaning of the phrase "personal privacy" within the context of the Freedom of Information Act. The 2011 case, Federal Communications Commission vs AT&T, involved whether a corporation has a "personal privacy" interest that fits within the scope of FOIA's document production exception.
AT&T's lawyers argued that corporations did have "personal privacy" just as individual people are imbued with that trait. These lawyers, no doubt, were encouraged by the Citizens United decision of the year before where the SCOTUS held that corporations could be treated like individuals for purposes of making political contributions.
In Justice Zahra's Harris decision, and in his remarks to the bar, the importance of the text of statutes cannot be denied. Justice Zahra was in this law blogger's law school class. Back in that pre-Internet era, there was an emphasis in the curriculum on common law; the judicial interpretation of statutes.
Over the past 20-years, there has been a shift, from the top down, toward giving meaning to the actual text of statutes. The meaning of words is mission-critical from such a perspective.
Words matter, especially as they are laid down in laws.