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In Part I, I discuss the reasons why corpus linguistics should not be considered in isolation from contextual factors, as the latter often illuminate meanings that cannot be found from simply chronicling the usage of a given word. In Part II, I demonstrate, through the lens of three Supreme Court cases, that corpus linguistics does not aid interpretation when the words of a statute or document are clear, but their application to the facts at hand is not. My critique of corpus linguistics mirrors the larger, long-running, and ongoing debate of the merits of a more textual approach to interpretation that focuses almost exclusively on the language of a legal document versus a more contextual approach that construes legal documents not only in light of their language but also in view of the background, motivation, context, and purpose of the document as well as credible evidence of author intent." I proudly admit to a preference for an eclectic approach to interpretation that embraces not only textualism and data-driven analysis such as corpus linguistics, but also considers other interpretative indicia.

Even if one rejects narrow textualism and favors wide-ranging consideration of contextual information, corpus linguistics should be appreciated as a significant advance in textual interpretative methodology. Instead of giving a gut reaction, soul searching, pulling the most convenient dictionary from a nearby shelf, or batting around terms with law clerks, court staff, or judicial colleagues (as well as listening to arguments of counsel), a judge facing an interpretative question can instead (or in addition) examine the way in which a word is used by the public at large.

Publication Citation

86 Brook. L. Rev. 389 (2021).