Language Log

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.

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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.

Barton Beebe & Jeanne Fromer, "Are We Running Out of Trademarks? An Empirical Study of Trademark Depletion and Congestion", Harvard Law Review, February 2018:

Abstract: American trademark law has long operated on the assumption that there exists an inexhaustible supply of unclaimed trademarks that are at least as competitively effective as those already claimed.  This core empirical assumption underpins nearly every aspect of trademark law and policy.  This Article presents empirical evidence showing that this conventional wisdom is wrong. The supply of competitively effective trademarks is, in fact, exhaustible and has already reached severe levels of what we term trademark depletion and trademark congestion. We systematically study all 6.7 million trademark applications filed at the U.S. Patent and Trademark Office (PTO) from 1985 through 2016 together with the 300,000 trademarks already registered at the PTO as of 1985.  We analyze these data in light of the most frequently used words and syllables in American English, the most frequently occurring surnames in the United States, and an original dataset consisting of phonetic representations of each applied-for or registered word mark included in the PTO’s Trademark Case Files Dataset. We further incorporate data consisting of all 128 million domain names registered in the .com top-level domain and an original dataset of all 2.1 million trademark office actions issued by the PTO from 2003 through 2016. These data show that rates of word-mark depletion and congestion are increasing and have reached chronic levels, particularly in certain important economic sectors.  The data further show that new trademark applicants are increasingly being forced to resort to second-best, less competitively effective marks.  Yet registration refusal rates continue to rise.  The result is that the ecology of the trademark system is breaking down, with mounting barriers to entry, increasing consumer search costs, and an eroding public domain. In light of our empirical findings, we propose a mix of reforms to trademark law that will help to preserve the proper functioning of the trademark system and further its core purposes of promoting competition and enhancing consumer welfare.

John R. Quain, "Alexa, What Happened to My Car?", NYT 1/25/2018 [emphasis added]:

And even though voice bots like Alexa and Google’s Assistant can be taught to recognize different voices — well enough to cater to each family member’s favored Pandora stations, for example — they do not offer any sort of biometric security, such as voice print analysis. As a result, Alexa’s voice-recognition capabilities are not discerning enough for security purposes, according to Amazon.

There are two things about this passage that caught my attention.

First, a minor point: the NYT here chooses to write "voice print" as two separate words. This is a change from their previous practice — already in May of 1962 (and many times since),  the grey lady was writing "voiceprint" solid in stories like this one:

A researcher from Bell Telephone Laboratories described yesterday tests that he said, showed that "voiceprints" may prove to be almost as effective, for identification, as fingerprints.

And second, a more important point:  here's a journalist who still thinks that "voice print analysis", however spelled, offers "biometric security".

[Warning: what follows is a long post about lexicographic, technological,  journalistic, and literary history, guaranteeing that at least three quarters of the content will bore or mystify most readers.)

Paul Manafort's lawyers misspelled Cyprus throughout his bail memo. pic.twitter.com/Ls9JI1WDbN

— Sen. Lemon Gogurt ugarles.bsky.social (@Ugarles) November 2, 2017

At least, we're five months away from April Fool's Day…

Lydia Wheeler, "Court rules request for 'lawyer dog' too 'ambiguous'", The Hill 10/30/2017:

The Louisiana Supreme Court won't hear an appeal from a man who claimed he told police during an interview to "just give me a lawyer dog,” with a justice saying the request was "ambiguous." […]

[D]etectives reportedly advised the defendant of his Miranda rights, and the defendant stated he understood and waived those rights.

The defendant, however, claimed he invoked his right to counsel in a second police interview when he said “if y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up.” […]

“In my view, the defendant’s ambiguous and equivocal reference to a 'lawyer dog' does not constitute an invocation of counsel that warrants termination of the interview,” [Louisiana Supreme Court Justice Scott Crichton] said.

“What is the difference between ‘reasonably necessary’ and ‘substantial need’?” asked Supreme Court Justice Samuel Alito (see this story in the New York Times). “I have been racking my brain trying to think of something that it is reasonably necessary for me to obtain but as to which I do not have the substantial need. And I can’t think of an example.”

Several of the court’s more liberal justices disagreed, saying that “reasonably necessary” connoted matters that a reasonable lawyer with finite resources would try to pursue.

On the outcome there hangs the issue of whether death row inmates like Carlos Manuel Ayestas in Texas will get legal aid. A federal appeals court in New Orleans, which oversees cases from Louisiana, Mississippi and Texas, says there must a “substantial need” for the money, and denied funds to Ayestas. He challenged the denial.

So don't ever say there is no practical importance to the work semanticists do as they try to identify truth-conditional differences between terms of broadly similar meaning.