Ed. Note: This article first appeared on the Juris Lab, a forum where “data analysis is the law”.
The Supreme Court recently issued its judgment in Facebook, Inc. v Deguid, a legal interpretative case under Section 227 (a) (1) of the Telephone Consumer Protection Act of 1991. The act prohibits the use of an “automatic telephone dialing system”[s]”To make calls” to a telephone number that a. . . Cellular service “without the” prior consent of the called subscriber “. It was about the legal definition of an autodialer:
Equipment that has the capacity –
Storing or producing telephone numbers to be called using a random or sequence number generator; and
To dial such numbers.
Nobody denied that Facebook has a system that automatically sends text messages to phone numbers associated with Facebook accounts in certain contexts. However, Facebook argued that this system did not qualify as an autodialer by the legal definition. Judge Sotomayor, who wrote for the majority, agreed.
Congress defined an autodialer in terms of what to do (“storing or producing phone numbers to be called”) and how to do it (“using a random or sequence number generator”). The definition uses a familiar structure: a list of verbs followed by an amending clause. According to conventional grammar rules[w]If there is a simple, parallel construction that includes all nouns or verbs in a series, a modifier at the end of the list usually applies to the entire series. A. Scalia & B. Garner, Reading Right: The Interpretation of Legal Texts 147 (2012) (Scalia & Garner) (quotation changed). The Court of Justice often applies this rule of interpretation, which is commonly referred to as the “canon for serial qualifiers”.
Justice Alito only agreed with the verdict and questioned the majority characterization of the serial qualification canon – and indeed the construction canon in general – as “conventional” regulate the grammar. ”
To the extent that interpretive cannons accurately describe how the English language is used in general, they are useful tools. But they are not inflexible rules. Appellate judges spend virtually every hour of work speaking, listening, reading, or writing English prose. The statutes are written in English prose, and interpretation is not a technical exercise to be carried out through the mechanical application of a series of arcane rules. Interpretation cannons can help figure out the meaning of problematic legal language, but when treated like rigid rules they can lead us astray. When this court describes canons as rules or cites canons without considering their reservations and limitations, we are only encouraging the lower courts to refer the legal interpretation to a series of if-then calculations. No sensible reader interprets texts that way.
Justice Alito then formulated the applicability of the cannon as an “empirical question” and urged the corpus linguists to test the “strength and validity” of the canons using databases of English prose.
As it turns out, this research is already underway. I submitted one two and a half years ago Amicus letter to the Court of Justice in Rimini Street versus Oracle corpus linguistics used to question the rule against surpluses, at least in connection with the cost regulation of the copyright law. In addition, BYU Law a Law & Corpus Linguistics Conference Each year, and a major theme of the last two conferences, the testing of the canons (see 2020 and 2021 Conference plans). A team consisting of Thomas Lee, Utah Supreme Court Justice, Jesse Egbert, professor of linguistics at Northern Arizona University, and Zak Lutz, lawyer at Justice Lee, are currently working on an article that uses corpus linguistics to address the issue To test the reliability of the canon against excess in general. Larry Solan and Jeffrey Stempel have a similar project in the works. Perhaps more interesting to Justice Alito would be the work of Williams & Connelly attorney Andy Hoffman, NAU graduate student Margaret Wood, Lee, Egbert, and BYU linguistics professor Brett Hashimoto, who are collaborating on a project that will create a corpus of the U.S. Code used to test the serial qualification canon and the last antecedent rule. Although none of these papers have been published, preliminary results and research methods have been presented at previous BYU conferences.
I anticipate that this will be one of the most important contributions of corpus linguistics to legal practice: testing (and possibly refuting) certain canons and developing others that more closely reflect the way we speak, write, and read English , especially in the context of legal language. We will see.
Read more in the Juris Lab …
James Heilpern is a pioneer at the forefront of the Law & Corpus Linguistics movement, an emerging legal discipline that seeks to harness the power of big data to provide empirical evidence of the meaning of words and phrases in legal instruments. He is currently President and Managing Partner of Corpus Legal Services, a litigation consulting boutique that provides corpus language training, advice and expert services to law firms across the country.
James also works as a lawyer for Schaerr | Jaffe, LLP, a complex litigation boutique where he has represented clients in the US Supreme Court, Fifth Circuit Court of Appeal, the Corte Suprema de Puerto Rico, and district courts across the country. In this capacity, he wrote some of the first briefs in the country to use corpus linguistic techniques. James is also a Senior Fellow at BYU Law School, where he teaches Law & Corpus Linguistics and Educational Law and has authored legal review articles in some of the country’s leading legal examinations.