10/16/2019 by Dustin M. Paul
On a previous post on the blog, we discussed the increased judicial focus on “corpus linguistics,” the use of searchable databases to find specific examples of how a word is used at a given time. The idea got additional appellate attention, again, at the instigation of Judge Thapar of the Sixth Circuit.
In Wright v. Spaulding, the Court considered a habeas petition and the right of prisoners to bring successive petitions. But footnote 1 is what is of interest. The Court’s opinion noted that the Court requested “the parties to file supplemental briefs on the original meaning of Article III’s case-or controversy requirement, specifically whether the corpus of Founding-era American English helped illuminate that meaning.” Apparently, the additional briefing was not helpful: Judge Tharpar notes that after reviewing the supplemental briefing and two amicus briefs, “corpus linguistics turned out not to be the most helpful tool in the toolkit.
I predict we see a lot more reference to this interpretative technique. Just in August and September, it has been referenced by the Supreme Court of Idaho (State v. Lantis, No. 46171, 2019 Ida. LEXIS 127, at *14 (Aug. 23, 2019)); the Supreme Court of Utah (Richards v. Cox, 2019 UT 57, ¶ 20 (Sup.Ct.)); and the Third Circuit (Caesars Entm’t Corp. v. Int’l Union of Operating Eng’rs Local 68 Pension Fund, 932 F.3d 91, 96 (3d Cir. 2019)). Are you keeping up?
Thanks to Howard Bashman and his blog “How Appealing” for helping me keep up on these issues.