Language Log

An introduction and guide to my series of posts "Corpora and the Second Amendment" is available here. The corpus data that is discussed can be downloaded here. That link will take you to a shared folder in Dropbox. Important: Use the "Download" button at the top right of the screen.

New URL for COFEA and COEME: https://lawcorpus.byu.edu.

The Originalism Blog has a guest post, by David Weisberg, taking issue with the conclusion in Dennis Baron's Washington Post op-ed that newly available evidence of historical usage shows that in District of Columbia v. Heller, Justice Scalia misinterpreted the phrase keep and bear arms. That's an issue that I wrote about yesterday ("The coming corpus-based reexamination of the Second Amendment") and that I'm going to be dealing with in a series of posts over the next several weeks.

One of Weisberg's arguments concerns a linguistic issue that I'm planning to address, and I think that Weisberg is mistaken. At the risk of getting out ahead of myself, I want to respond to Weisberg briefly now, with a more detailed explanation to come.

An introduction and guide to my series of posts "Corpora and the Second Amendment" is available here. The corpus data that is discussed can be downloaded here. That link will take you to a shared folder in Dropbox. Important: Use the "Download" button at the top right of the screen.

New URL for COFEA and COEME: https://lawcorpus.byu.edu.

It was only three weeks ago that BYU Law School made available two corpora that are intended to provide corpus-linguistic resources for researching the original meaning of the U.S. Constitution. And already the corpora are yielding results that could be very important.

The two corpora are COFEA (the Corpus of Founding Era American English) and COEME (the Corpus of Early Modern English). As I've previously explained, COFEA consists of almost 139 million words, drawn from more than 95,000 texts from the period 1760–1799, and COEME consists of 1.28 billion words, from 40,000 texts dating to the period 1475–1800. (The two corpora can be accessed here.)

Within a day after COFEA and COEME became available, Dennis Baron looked at data from the two corpora, to see what they revealed about the meaning of the key phrase in the Second Amendment: keep and bear arms. (Baron was one of the signatories to the linguists' amicus brief in District of Columbia v. Heller.) He announced his findings here on Language Log, in a comment on my post about the corpora's unveiling:

Sorry, J. Scalia, you got it wrong in Heller. I just ran "bear arms" through BYU's EMne [=Early Modern English] and Founding Era American English corpora, and of about 1500 matches (not counting the duplicates), all but a handful are clearly military.

Two weeks later, Baron published an opinion piece in the Washington Post, titled "Antonin Scalia was wrong about the meaning of ‘bear arms’," in which he repeated the point he had made in his comment, and elaborated on it a little. Out of "about 1,500 separate occurrences of 'bear arms' in the 17th and 18th centuries," he said, "only a handful don’t refer to war, soldiering or organized, armed action." Based on that fact, Baron said that the two corpora "confirm that the natural meaning of 'bear arms' in the framers’ day was military."

My interest having been piqued, I decided to check out the corpus data myself.

Is nothing sacred?

As the Washington Post explains ("Europe, not the U.S., is now the most powerful regulator of Silicon Valley", 5/25/2018):

Europe implemented a sweeping overhaul of digital-privacy laws on Friday that has reshaped how technology companies handle customer data, creating a de-facto global standard that gives Americans new protections and the nation’s technology companies new headaches.

It's also unleashed a flood of email notifications, typically consisting of long unreadable lists of legal weaseling. (Though I've gotten a few more entertaining instances, like the one in the image on the right, from a company that I was unaware of having any relationship with…)

In the comments on my recent post "The BYU Law corpora," Dennis Baron writes:

Sorry, J. Scalia, you got it wrong in Heller. I just ran "bear arms" through BYU's EMne [=Early Modern English] and Founding Era American English corpora, and of about 1500 matches (not counting the duplicates), all but a handful are clearly military.

Baron was one of the signatories to the linguists' amicus brief in Heller.

Update:

In the comments below, Ben Zimmer links to Baron's article, "Guns and Grammar: the Linguistics of the Second Amendment," which provides some details about the argument in that brief.

[Cross-posted on LAWnLinguistics.]

[Cross-posted on LAWnLinguistics.]

I’d imagine that most people who’ve been actively involved with corpus linguistics are familiar with the BYU corpora—a collection of web-accessible corpora created by Brigham Young University linguistics professor Mark Davies. These corpora (and BYU’s corpus-linguistics program more generally) have played an essential part in the development of what I’ll call the corpus-linguistic turn in legal interpretation. The BYU corpora served as my entry-point into corpus linguistics, and they have provided the corpus data that has been used in most of the law-and-corpus-linguistics work that has been done to date. And beyond that, the BYU Law School has played an enormous role, in a variety of ways, in Law and Corpus Linguistics becoming a thing.

One of the things that the law school has been doing has been happening largely behind the scenes. For the past two or three years, people there have been developing the Corpus of Founding Era American English (COFEA)—a historical corpus that is intended as resource for studying language usage in the time leading up to the drafting and ratification of the U.S. Constitution. At this year’s conference on law and corpus linguistics (the third such conference, all of them hosted by the BYU Law School), we were given a preview of COFEA. And via a tweet by the law school’s dean, Gordon Smith, I’ve now learned that a beta version of COFEA is up and available for public playing-around-with, as are beta versions of two other corpora: the Corpus of Early Modern English and the Corpus of Supreme Court of the United States.

EmbroidMe is the world's largest promotional products franchise. We help organizations create an impact through customized marketing solutions that bear a name, image, brand identity, logo or message. Our specialties are embroidery, garment printing, custom apparel, promotional products, screen printing and personalized gifts at more than 300 resource centers throughout the United States, Canada and Australia.

In the recent decision enjoining the suspension of DACA (but giving the government a 90-day mulligan), the court referred to the people who are affected by DACA’s suspension as “undocumented aliens” rather than “illegal aliens,” and it dropped a footnote explaining why it made that choice:

Some courts, including the Supreme Court, have referred to aliens who are unlawfully present in the United States as “illegal” instead of “undocumented.”  See, e.g.,  Texas  v.  United  States, (explaining that this “is the term used by the Supreme Court in its latest pronouncement pertaining to this area of the law”); but see  Mohawk Indust., Inc. v. Carpenter (using the term “undocumented immigrants”). Because both terms appear in the record materials here, and because, as at least one court has noted, “there is a certain segment of the population that finds the phrase ‘illegal alien’  offensive,” Texas v. United States, the Court will use the term “undocumented.” [pdf (citation details omitted)]

Although the court didn't similarly decide to use immigrant instead of alien, that may well be due more to the fact that alien is a frequently used term in the context of immigration law than to any view about the term's possible offensiveness.

The first case mentioned in the footnote, Texas v. United States, is the decision by the U.S. Court of Appeals for the Fifth Circuit that had enjoined the DAPA program (Deferred Action for Parents of Americans and Lawful Permanent Residents, which was related to but separate from DACA, which stands for Deferred Action for Childhood Arrivals). That decision used the term illegal aliens rather than undocumented aliens, but like Tuesday’s DACA decision, it explained its choice of terminology.

From Grice v. City of St. Robert (Mo. Ct. Ap. 1992) (citations omitted):

This court should not create an exception where none is present. Where a statute has no exception courts should not engraft one by judicial legislation. Words used in the statute must be accorded their plain and ordinary meaning. When language is plain and admits to but one meaning, there is no room for construction.

The title of this post combines two topics that are popular with the Language Log audience, and that are not usually discussed together. It is also the title of a LAWnLinguistics post from 2012, shortly after the publication of Reading Law, a book about legal interpretation that was co-authored by Justice Scalia and Bryan Garner. It was one of a series of posts that I did about the book—a series of which the last installment has not yet been written.

The post was about whether prescriptivism has any role to play in statutory interpretation (no inside jokes in this title, I'm afraid), and it occurs to me that since many people here will be interested in the topic, it might be a good idea to bring the post back for a return engagement in a larger venue. And because the topic is one that I recently returned to at LAWnLing, I'm going to include the relevant part of that post as well.

If you've seen my previous post, SCOTUS cites CGEL (etc.), you may have been surprised to see an unfamiliar name in the byline beneath the title—unfamiliar because you've never heard or me, or because you didn't associate me with Language Log other than as an occasional commenter and a long-time-ago guest poster. Either way, you're probably wondering how I hacked my way into the Language Log server, and whether purloined Language Log emails are going to start being posted on Wikileaks. Or maybe it's fsociety that you're worried about. So let me assure you that no violations of the Computer Fraud and Abuse Act were committed in the making of that post, or of this one.

The explanation for my presence here is that I've accepted an invitation from Mark to be a regular contributor to Language Log. And the purpose of this post is to briefly introduce myself.

(Cross-posted from LAWnLinguistics.)

When grammatical questions come up in legal cases, the lawyers and judges will want to support their arguments and analyses with citations to books about grammar. Most of the time, they cite books intended for a general audience, such as the McGraw-Hill Handbook of English Grammar and Usage, The Elements of Grammar, Strunk & White, and various books by Bryan Garner; and books intended for lawyers, such as The Grammar and Writing Handbook for Lawyers and (again) various books by Bryan Garner.

Unfortunately, none of those books gives an adequate description of English grammar, which is a subject that is much more complex than most people realize. If you're looking for a book that can speak about the subject reliably and with authority, the leading candidates are two books that are both known by the initials CGEL.

One is the Cambridge Grammar of the English Language (2002), whose main co-authors are Rodney Huddleston and Geoffrey Pullum. The other is the Comprehensive Grammar of the English Language (1985), by Randolph Quirk, Sidney Greenbaum, Geoffrey Leech, and Jan Svartvik. If you're dubious about my statement regarding the complexity of English grammar, you should note that both of these books are enormous: the text of Huddleston & Pullum exceeds 1,700 pages, and Quirk et al.'s exceeds 1,600 pages. If you ever have occasion to hold a copy of either book in your hands, be careful not to drop it on your toes.

Up until today, Huddleston & Pullum had been cited by U.S. courts 24 times, and Quirk et al., 12 times. The courts in question included the federal courts of appeals for the Fifth and Sixth Circuits and the supreme courts of Colorado, Minnesota, Oregon, Utah, and Washington. But not the U.S. Supreme Court.