Making a Difference: The Use of Corpora in Legal Analysis

The following post was written by Mark Davies, a Faculty Fellow for the Center. 

It’s always nice to find that our research and projects have some importance and relevance beyond the handful of people who might read a journal article that we’ve written, or the even smaller number of people who will be impacted in an important way because of reading it.

One of the most satisfying things that I’ve been associated with in the last ten years or so is the creation of several corpora from corpus.byu.edu, which are used by approximately 130,000 distinct people each month (as well as thousands of professors from throughout the world). And it’s satisfying to know that these corpora are being used for a wide range of purposes—including linguistic analysis, language teaching and learning, and the analysis of culture, as well as for use in industry (to help computers process human language).

One of the most interesting uses of the corpora—and one that I would have never foreseen ten years ago—is the use of corpora as a basis for the study of the law. But when you think about it, most laws and statutes depend on knowing the meaning of a word or phrase, raising questions about how we can determine meaning. So where can we find the meaning of a word or phrase?

As Stephen Mouritsen (a graduate of the BYU linguistics program and the BYU Law School, and now a corporate lawyer in New York City) has noted in an important article (more here), lawyers and judges (even Supreme Court judges) often take a very naïve approach to determine meaning. Typically, they open the dictionary and start looking at the definitions until they find one that they think might be the most relevant.

But there is a better way to determine the meaning of a word or phrase, and that’s to see how it’s used “in the wild”—in its natural setting—in newspapers or magazines, academic papers, fiction, or spoken language. And this is where corpora and corpus linguistics come in.

During the past 5–6 years, there have been a number of important court cases that have used the BYU corpora to analyze contested words or phrases. For example, when a person “discharges” a weapon, does it refer to each individual shot, or to the entire action of shooting? (This might seem like a silly distinction, but whether someone goes to jail for two years or twenty years may depend on that very distinction). As was discussed in the Harvard Law Review, a case like this recently came before the Utah Supreme Court, and the BYU corpora were used in an important way to interpret the meaning of the word.

In another example, corporate law suggests that corporations are (in many ways) considered persons when determining what protection they should be afforded. So if the US government comes to AT&T and demands that they hand over telephone records, can AT&T claim that as a corporation they are like a “person” and that they aren’t subject to “unreasonable search and seizure”? A recent case on this subject came before the US Supreme Court, and again the BYU corpora were used to look at the meaning of the word personal (more from The Atlantic). These are just two cases, but there have been several others as well.

Recognizing the value of corpora for legal analysis, several professors at the BYU Law School have collaborated with professors in the Department of Linguistics and English Language to use corpora in their research. Some of the topics that we’ve looked at are the meaning of race, the difference between an illegal alien and an illegal immigrant, what it means to be legally insane, what (fiduciary) loyalty means, the meaning of science in the early 1800s (in terms of patent law), or what religion means in terms of the establishment clause (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ”).

Progress in the use of corpora in legal analysis has now reached the stage where, at the end of this month, there will be an important conference at the BYU Law School dealing with this very topic. This conference has been organized by Gordon Smith, who was just appointed the new dean of the law school. We will have judges, lawyers, law school professors, and linguists coming from throughout the country, all looking at the issue of how corpora can best be used for legal analysis.

Personally, it’s satisfying for me to see how the BYU corpora have been used for the analysis of laws and statutes, which has the potential to affect many people beyond the confines of the “ivory towers” of academia.

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