Is a Bumblebee a Fish? How Linguistics Can Help Lawyers Interpret the Law

Is a bumblebee a fish? This question, explored in a recent California ruling, exemplifies the importance of deciphering linguistics in interpreting the law. On this topic, the Appellate Practice Section of the San Diego County Bar Association hosted a Web CLE course on October 28, 2022, entitled: “Corpus Linguistics as a Tool for Appellate Advocacy.” The featured presenters were Tammy Gales, Associate Professor of Comparative Literature, Languages, and Linguistics at Hofstra University, and James Heilpern, Esq., Senior Fellow of Law & Corpus Linguistics at Brigham Young University Law School. The course focused on historic and ongoing issues with the traditional approach to linguistics in the law and how the use of corpus linguistics — the study of language through “corpora” or large bodies of data showing how words are used in a real-life context — provides judges and lawyers useful tools for statutory interpretation and appellate argument that more efficiently achieves the goal of having uniformity between the legal and textual meaning of language.

Mr. Heilpern began the presentation by discussing the purpose of using corpus linguistics and the drawbacks of the traditional approach to linguistic interpretation. Mr. Heilpern explained that lawyers are intrinsically called upon to argue and make linguistic arguments about a statute or word’s ordinary meaning, and judges are required to make linguistic determinations based on traditional authorities. As more textualist judges became appointed to the bench throughout the twentieth century, dictionaries increasingly became cited in legal opinions as the definitive authority for statutory interpretation. In fact, more dictionaries have been cited in U.S. Supreme Court opinions than any other authority. This is primarily due to the widespread acceptance of the dictionary as the definitive authority on linguistic interpretation in society. However, there are several drawbacks to this traditional approach.

First, in several dictionaries, there is fine print contained in the preface to these dictionaries called the Front Matter. The Front Matter is a guide to the reader on how to use the dictionary appropriately that often discloses that the list of definitions for a particular word is arbitrary and has no hierarchy amongst one another. This means that the first definition listed for a word may be the first historical definition of the word that has subsequently evolved over time. As a result, the reader — and more importantly judges — assume the first definition of the word is the ordinary meaning of the word and relies on that assumption in reaching their decision. This has led to judges relying on inaccurate interpretations of words or phrases to make judicial determinations on significant civil liberty issues.

Second, lawyers’ reliance on etymology (the origin of a word or phrase) and morphology (the study of breaking down a word into component parts) can produce similarly inaccurate results. This is primarily because words or phrases do not always have the same meaning as their historical origin would suggest since language constantly evolves and takes on new meaning over time. Additionally, humans tend to put words together in interesting and unpredictable ways that negates the traditional meaning of a prefix or suffix that is included in the word or phrase, thereby creating a fallacy in how a statute or word or phrase is interpreted. Thus, there is a significant benefit in challenging the traditional approach to linguistics and developing new theories and methodologies for approaching the use of linguistics.

Ms. Gales then continued the presentation by discussing the historical use of corpus linguistics and how corpus linguistics has been applied in judicial interpretation. The first example of the use of corpus linguistics was found in 1879 when James Murray attempted to find authentic examples of the use of a word or phrase to showcase senses. Later in 1961, the first Electronic Corpus was developed that contained one million words. Over the next several decades, the Corpus rapidly expanded to include almost 400 million plus words in 2008 to now containing over 1 billion words. Thus, there appears to be a growing interest in developing Corpus and utilizing it in the legal practice.

Ms. Gales explained that we only have a partial knowledge of how language is used in certain contexts and cannot quantify our knowledge of language through a reliable and accurate approach. One example where corpus linguistics could have provided a significant benefit involved a case where the central question was whether “discharging a firearm” meant discharging an entire magazine or a single shot under the applicable statute, where a traditional linguistic approach would unlikely be insufficient to provide a reliable statutory interpretation.

An example of the benefits of corpus linguistics in a non-legal context is how speakers use the term “App Store.” Although at first glance this term may be referring to the Apple “App Store,” Android and Google also have their own application store that their users similarly refer to as the “App Store.” In this context, corpus linguistics accurately reflects how the phrase is used in a variety of contexts in order to counter the standard assumption that the phrase “App Store” only refers to Apple products. Ms. Gales also recounted numerous other examples where corpus linguistics provided useful interpretations of 

However, as both Ms. Gales and Mr. Heilpern emphasized, corpus linguistics is only as useful as the research question being asked by the attorney. Specifically, the attorney must know what the judge is asking to be interpreted and whose opinion or usage of the word or phrase they are most interested in knowing so the question can be succinctly answered. Once this has been established, there are six key elements for a Transparent Corpus Linguistics Brief: 1. Identify What Database the Attorney Utilized; 2. Fully Explain the Search Query; 3. Provide the Court with Complete Results (not just conclusions or cherry-picked examples); 4. Contain Sufficient Contextual Information to Allow the Court to Recreate the Search (time period, search query, etc.); 5. Provide the Court with Coding Criteria; and 6. The Database Selected Matches the Court’s Judicial Philosophy to the Extent Possible.

Ms. Gales and Mr. Heilpern then concluded the presentation by emphasizing that the utilization of corpus linguistics is imperative due to the ongoing demand by judges for attorneys to incorporate corpus linguistics into their briefs. Each noted the growing use of corpus linguistics by the Ninth Circuit, whose judges have described corpus linguistics as a powerful tool for discerning statutory text interpretation. Therefore, appellate practitioners should be cognizant of the judge’s use of corpus linguistics and should consider utilizing it in their own practice to advocate for non-traditional interpretations of words and phrases.