John Setear ‘84
Professor of Law
I enjoyed Rachel Martin ’23's recent, front-page-and-center discussion of corpus linguistics in the Law Weekly (Vol. 73 Edition 14). Textual interpretation is a difficult and contentious endeavor that should concern all of us at the Law School, and Ms. Martin's piece pithily raised intriguing issues. Besides, why should the Court of Petty Appeals have all the heavily-footnoted fun?
Still, I am a little leery of whether we can reliably resolve textual ambiguities by referring to collocates in electronic databases.
One problem is choosing the database. For a contracts case about diamond merchants in New York City, are we to consult a corpus of the English language as a whole, a lexicon of diamond merchants across the country, or a database of communications among all merchants in New York City? Do the latter two databases even exist?
Additionally, the use of a general database favors the most common locutions, but common locution and legal vocabulary are not the same thing. Without state action, there cannot be a First Amendment violation, yet I have recently seen many denizens of virtual media complain that employers, or online media companies, or even other forum participants are violating their "freedom of speech." Unless the government is sponsoring the forum or the employment, however, these are simply not constitutional violations—even though a tally of collocates in common usage might lead one to believe otherwise. (Selina Meyer's in-elevator observation about many of the "real people" whom she has met may be relevant here, if unduly harsh.)
Finally, the counting of collocates in electronic databases may elide important issues of linguistic evolution. The website of the Federalist Society states that it is "a group of conservatives and libertarians interested in the current legal order," without breathing a word about their actual view on federalism—that is, the proper balance between state and federal government. See https://fedsoc.org/about-us (last visited Jan. 31, 2021) (admittedly, I only read the first three paragraphs, which, in my defense, do exhaust their description of their purpose). I would bet a cornucopia filled with delicious Chick-Fil-A, however, that "conservatives and libertarians" generally favor a weaker federal government vis-a-vis the states. Yet James Madison—literally the face (at least in profile) of Fed Soc—was a "federalist" who favored precisely the opposite re-balancing of governmental responsibilities. I worry about anyone's ability to use a database to ferret out an "ordinary" meaning of a word that, over time, has both drifted 180 degrees from its origins (to Fed Soc-ers) and stayed right where it started (to constitutional historians). Meaning in words, as in life, can be elusive.
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jsetear@law.virginia.edu