Professor Gordon Smith presented on how using corpus databases to determine the ordinary meaning of words can make legal decisions more transparent.
PROVO, Utah (Feb. 11, 2016)—Precise language is a powerful tool. But how do we determine what the commonly accepted meaning of a word is, and do the nuances between meanings really matter?
The answer to both questions is “Yes,” as Professor Gordon Smith explained in a lecture entitled “The Power of Words,” a joint effort between the Department of Linguistics and English Language and the J. Reuben Clark Law School. Through his lecture, Smith used a Supreme Court case as an example and showed how BYU is leading the way in using corpus linguistics to make judicial decisions more transparent.
To illustrate this idea, Smith examined Muscarello v. United States (1998), a United States Supreme Court case focused on a drug dealer who was arrested with a gun in the glove compartment of his vehicle. According to a 1968 statute, anyone who “carries a firearm” during a drug trafficking crime receives at least an additional five years to the original drug charge sentence. The question arose, however, whether the defendant was actually “carrying” the weapon if it was simply resting in his vehicle.
Smith quoted the majority opinion of the Supreme Court, written by Justice Stephen Breyer, focusing on the ordinary meaning of the word “carry.” Justice Breyer cited three respected dictionaries and various newspapers and legal publications, concluding that the primary meaning suggests that one can “carry firearms” in a vehicle that one accompanies. The secondary meaning, according to Justice Breyer, was to have the firearm on one’s person.
However, this justification of this definition is not without flaws, as Smith explained. First, basing the ordinary meaning on the sense ranking in dictionaries is problematic because they either list definitions chronologically (and, therefore, not necessarily how the word was used in 1968 when the statute was drafted) or in the order the editors decided was the “most frequently encountered,” a judgment that was not backed by statistical evidence.
To counteract these subjective ways of determining the ordinary meaning of language, Smith outlined how corpus linguistics can help make decisions such as this one more transparent. Using the Corpus of Contemporary American English (C.O.C.A.) – developed by BYU linguistics professor Mark Davies – Smith showed how the ordinary meaning of a word can be determined more accurately by the “collocates” of the word (that is, the other words that are commonly used near the word in question). The C.O.C.A. also allows searching for words and their collocates in different years. Smith used the data collected by Stephen Mourtisen, a graduate of BYU Law School, who found that the primary definition of “carry” that Justice Breyer used to justify the Court’s decision was not in use in the 1960s when the statute was written.
The problem of ordinary meaning has implications throughout the legal system. Smith is currently authoring a paper on the word “loyalty” and how changes of the word over time have affected judicial opinions. By examining how the ordinary meaning of the word “loyalty” has changed over time – in what Smith called the “corruption of loyalty” – lawyers and judges are able to be more discerning when deciding cases regarding fiduciary law.
“We’ve just started” using corpus linguistics in law, Smith said as he described where this development will go. In April, BYU will host a conference focusing on corpus linguistics and law, with attendees from law schools across the country. Additionally, more corpora need to be developed. BYU Law School, with assistance from Professor Davies is currently developing the Corpus of Founding American English (C.O.F.E.A.), which will offer insight into ordinary meanings of words at the time of the drafting of the Constitution. In addition, three years ago BYU Law School began offering the only course in the U.S. on law and corpus linguistics, which was established three years ago. Through these efforts, this tool can bring great value to legal professionals.
As Smith said, “One of the great values corpus linguistics brings to lawyers is that the decision-making process is now more transparent. . . . You can actually look at how people use these words in their natural speech and bring some evidence to bear on the question of ordinary meaning.”
—Alison Siggard (B.A. English Education ’17)
Alison covers the Department of Linguistics and English Language for the College of Humanities. She is a senior studying English teaching with a minor in music.