A note from Stephen Mouritsen:
I wanted to give you a heads up about a second judicial opinion (again by Justice Tom Lee on the Utah Supreme Court) that overtly relies on data from Mark Davies' COCA. The opinion is here, and the discussion of corpus data is found in paragraphs 36 through 40.
Here's what the case is about:
We must decide whether the juvenile court erred in concluding that a minor’s alleged solicitation of a stranger to punch her and terminate her pregnancy qualifies as an abortion, as the term is defined in the Utah Code. The juvenile court held that an assault of a woman by punching her stomach was a “procedure” intended to terminate her pregnancy and therefore fell within the statutory definition of “abortion.” Because a woman cannot be held criminally liable for seeking an abortion, the court dismissed the State’s delinquency petition against the minor.
We hold that the solicited assault of a woman to terminate her pregnancy is not a “procedure,” as contemplated by statute, and therefore does not constitute an abortion. Accordingly, we reverse the juvenile court’s order dismissing the State’s petition and remand for further proceedings.
And here is the relevant part paragraph 40 of Justice Lee's concurring opinion:
There are means at our disposal to answer the question that the majority raises in Part I.A—whether the “ordinary and accepted meaning of the term ‘procedure,’“ supra ¶ 21, is limited to medical methods. I have employed such means (corpus linguistics data) before, explaining that an empirical measure of ordinary usage may be appropriate to check our less-than-perfect judicial intuition. In this case, the majority’s confident assertion about the “ordinary and accepted meaning” of the term “procedure” in an abortion setting ultimately is based on its intuition—that although “procedure” sometimes signifies any means of accomplishing a result, an “abortion procedure” has reference to a medical procedure. I do not doubt that intuition. (In fact, empirical corpus analysis confirms it.3)
Footnote 3 explains:
In contemporary usage, “abortion procedure” references the termination of a pregnancy under medical conditions, such as in a clinic and under the supervision of a physician. This conclusion is based on a review of every instance in which the words “abortion” and “procedure” co-occur in the Corpus of Contemporary American Usage. See, The Corpus of Contemporary American English (COCA), http://corpus.byu.edu/coca/ (last visited Dec. 1, 2011). Enter “[abortion].[n*]” in the “word(s)” field and “[procedure].[n*]” in the “collocates” field, and select “LIST,”then click “search.”
This search revealed 223 co-occurrences of “abortion” and “procedure.” Of those, 106 referred to specific medical procedures such as dilation and extraction or vacuum aspiration. An additional 75 refer to circumstances in which an abortion is performed in a “clinic” or with a “doctor” or under “surgical” conditions. The remaining 27 use the terms “abortion” and “procedure” interchangeably. In 5 instances, the term “procedure” and “abortion” were not related. Not once were the terms used to connote an ad hoc, violent, nonmedical effort to terminate a fetus (as by striking the mother’s abdomen).
Stephen Mourtitsen gives some personal background:
Both Justice Lee and Professor Davies are in one respect my former bosses. I was a research assistant for Professor Tom Lee, who was a law professor before being elevated to the bench a year-and-a-half ago. I then served as his law clerk (essentially a research assistant) for a year before moving to New York, where I now work as an attorney. As a graduate student in linguistics prior to law school, I had Mark Davies as my thesis chair.
Justice Lee's conversion to the corpus cause is significant. Neal Goldfarb's brief showed the legal community that corpus data could be highly persuasive to non-linguist judges. As a consequence, I think the brief will have a dramatic effect on how advocates present arguments to the courts. Justice Lee's appeal to corpus data shows the judicial community that corpus data is not just specialized esoterica–it has a practical application to the one job that judges are supposed to be good at (but aren't), i.e., resolving textual ambiguities in a principled manner.
I write about law and corpus linguistics and I think that Justice Lee's use of the corpus (even now when he no longer has a corpus-nerd clerk at his disposal) is significant. Against the backdrop of the so-called "culturomics" movement, and the continued development of larger and better corpora, I think that corpus linguistics has the potential to reshape the way judges and attorneys do their jobs.
Stephen's reference to "Neal Goldfarb's brief" is explained and discussed in these earlier LL posts, and (especially) the links therein: "Q: Do corporations have 'personal privacy'? A: No.", 3/1/2011; "Now on The Atlantic: The corpus in the court", 3/4/2011; "Corpus linguistics in a legal opinion", 7/20/2011.
You may also be interested in Stephen's 2010 BYU Law Review article, "The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning".