Pro-tip: When a Judge Asks You to Make a Corpus-Based Argument, Don’t Say Corpus Linguistics is Stupid

In corpus linguistics by James Heilpern7 Comments

A month and a half ago, a panel on the Ninth Circuit ordered supplemental briefing in Jones v. Becerra—an important Second Amendment case concerning the constitutionality of a California statute which bans the sale of firearms to individuals under the age of 21—requesting the parties address three questions:

  1. What is the original public meaning of the Second Amendment phrases: ‘A well regulated Militia’; ‘the right of the people’; and ‘shall not be infringed’?
  2. How does the tool of corpus linguistics help inform the determination of the original public meaning of those Second Amendment phrases?
  3. How do the data yielded from corpus linguistics assist in the interpretation of the constitutionality of age-based restrictions under the Second Amendment?

This is the second time that a Circuit court panel has ordered the parties to provide supplemental briefing in order to provide the court with corpus-based arguments. As a handy practice tip, it’s safe to assume that if a judges specifically requests corpus-based arguments, she has already concluded that corpus linguistics is a helpful tool at least in theory. She may have questions about whether corpus linguistics would be helpful in the particular case before her or she may lack the confidence in her own ability to navigate and interpret the databases herself, but if she is actually ordering parties to devote time and resources making corpus-based arguments, it’s safe to assume that she’s already sold on the law and corpus linguistics movement as a whole.

Apparently, the attorneys representing Mr. Jones disagreed. The bulk of their supplemental brief—filed last week—argues that “corpus linguistics suffers from several fatal conceptual difficulties that make it an unreliable guide to the original public meaning of the Second Amendment.” Of primary concern for the plaintiffs is the supposedly irrefutable fact that “corpus linguistics is fundamentally contrary to the way we use language” because it assumes that “the single meaning for constitutional purposes is the one appearing in the dataset the greatest number of times.” This is nothing new. Corpus critics have routinely accused the law and corpus linguistics movement of being nothing more than bean counters, what they often call the faulty “frequency hypothesis.” The problem for Cooper Kirk is that no serious proponent of corpus linguistics actually argues for that! As Utah Supreme Court Justice Thomas R. Lee and Stephen Mouritsen—two of the nation’s leading scholars in the field of law and corpus linguistics—recently put it in their recent Chicago Law Review article, “[t]he frequency fallacy is another straw man. It has no foundation in our writing[s] . . . Indeed, both of us have expressly disavowed an approach that merely seeks to determine the most common sense of a word and then labels that sense the ordinary meaning.”

By relying on such discredited, two-dimensional caricatures of corpus linguistics, Plaintiffs’ attorneys have needlessly undermined their clients’ position. At the time the supplemental briefing order was issued, the composition of the panel assigned the case was still unknown. No longer. The panel consists of Judge Ryan D. Nelson, Judge Kenneth K. Lee, and Judge Sidney H. Stein. While Judge Stein—a senior district court judge on the SDNY sitting by designation—is a Clinton appointee, Judge Nelson and Judge Lee are both recent Trump-appointees. If they are asking for corpus-based arguments in a Second Amendment case, it means that they are sincerely interested in engaging with the historical record and seeing what corpus linguistics has to say.

This is probably especially the case for Judge Nelson. When he was General Counsel of Maleluca, he was involved in a case that hired a corpus linguist as an expert witness. He’s also a graduate of BYU Law, where as a student he was a research assistant for Professor Thomas R. Lee—yes, that Tom Lee, the one who now sits on the Utah Supreme Court and is the nation’s leading evangelist for law and corpus linguistics. In fact, Justice Lee spoke at Judge Nelson’s investiture. I suspect he will not take kindly to a brief which attacks his mentor’s most significant contribution to the law.

Perhaps the attorneys at Cooper Kirk were concerned about the panel being unduly swayed by the swath of recent literature—not to mention a recent decision by the Vermont Supreme Court—that uses corpus linguistics to call into question Justice Scalia’s decision in Heller, but the debate over how to interpret the evidence produced by corpus linguistics over the original meaning of the Second Amendment is far from settled. The historical record is messy. When Plaintiffs finally got around to engaging with the corpus data, they provided some compelling arguments in support of their theory that at the time of the founding the “militia” and “rights of the people” extended to eighteen-year-olds. But they’ve undermined their own arguments by devoting so much ink to telling the court to “pay no attention to the little man behind the curtain.” They appear unnecessarily defensive, as if they assume they can’t win if corpus linguistics is considered.

Comments

  1. I think of the lawyers at Cooper and Kirk as being pretty sophisticated appellate advocates. It seems to me that if the judges think a tool may be helpful, and you think it helps your case to say it’s not helpful, then there’s a case for taking the opportunity in the brief to explain why.

    1. James: Thanks, Orin, I appreciate the comment. And I agree that it can be advantageous for an advocate to try and persuade a court away from a particular interpretive tool or methodology. But if you’re going to do that, I think you need to fully engage with the scholarly literature and not rely on a caricature of the judge’s preferred interpretive tool or methodology. Cooper Kirk hasn’t done that here, relying on arguments that have been discredited, and in one instance, on a law review article where the scholar has since flipped and written favorably of corpus linguistics. I think this brief sends a signal to the panel that they don’t really know what they’re talking about. And by doing so have damaged their credibility (and probably made the judges annoyed). That’s not good advocacy.

      Furthermore, I think sophisticated appellate advocates recognize that it is typically more effective to argue their case *within* a judge’s jurisprudential framework, rather than attempting to persuade him to adopt a different framework that might be better for their client. The Constitutional Accountability Center—a left-leaning think tank—did this to great effect with their “dictionary” brief in New Prime, Inc. v. Oliviera, which clearly had a great impact on Gorsuch who wrote the majority opinion. Now, that’s harder to do at the Circuit level when you don’t know the judges until after the close of briefing, but if a panel orders you to provide corpus linguistics arguments, that’s a good indication of where their headspace is. Especially since Cooper Kirk *have* some good corpus-based arguments, it would have behooved them to lead with those.

      One final caveat. I think it would be entirely appropriate for an attorney responding to such an order to argue that corpus linguistics would not be appropriate *in this case*. That’s what the attorneys did in Wright v. Spaulding when the Sixth Circuit issued a similar supplemental briefing order. And to a certain extent, the attorneys here did that by arguing that Heller should dictate the outcome of the case. But they should have then jumped to their corpus-based arguments (“Even if the court disagrees that Heller controls, corpus linguistics demonstrates why we should still win . . .”). I think they went astray when they attacked corpus linguistics in general. And did it poorly at that.

      1. James: I don’t think I recall ever reading an appellate brief that has engaged fully with a body of scholarly literature. Appellate briefs always present a lawyer’s version of scholarly literature, simplified for generalist judges. (For that matter, it’s rare for judges to engage fully with a body of scholarly literature: Their job is to decide cases, not to try to master fields of academic debate.) I understand that you aren’t persuaded by the brief, but I didn’t see the brief as unusual for how it approached the scholarship in the field.

  2. I have a different take on the Cooper & Kirk brief. I think that their attack on corpus linguistics was motivated by a desire to preemptively discredit the corpus-based challenge to Heller that James mentions (of which my work is a significant part).

    So far, no gun-rights have seriously tried to dispute any of the points made in that challenge. While I’m obviously not disinterested on this issue, I take that failure to mean that they can’t come up with any persuasive responses. And before the supplemental briefs were filed, I told the lawyer for the state that for that reason, there was a good chance that the appellants would follow a strategy of criticizing corpus linguistics rather than defending Heller from the challenge. And as was clear once the supplemental briefs were filed, I was right.

    Seen in this light, the appellants’ decision to attack corpus linguistics was rational. If, as I think, their top priority, IMO, was to protect Heller at all costs, and if, as I think, they had no decent argument on the merits of the corpus-based challenge, then attacking corpus linguistics made sense. (Of course, their attack was utter garbage, but the fact is that the various criticisms of corpus linguistics that have been made either have been debunked (see my response to Kevin Tobia, available on SSRN, titled “Varieties of Ordinary Meaning”) or overblown (pretty much everything else)).

    To shift topics, I want to talk about James’s discussion of the corpus-based challenge to Heller.

    First, James says, “The debate over how to interpret the evidence produced by corpus linguistics over the original meaning of the Second Amendment is far from settled.” To which I say, “What debate?” Debates generally have at least two sides, and so far gun-rights advocates have with two or three minor exceptions, scrupulously avoided discussing the issue.

    So I’d appreciate it if James could explain to me who on the gun-rights side has been participating in this debate and what they’ve been saying.

    (OTOH, I agree with James when he says that the appellants “appear unnecessarily defensive, as if they assume they can’t win if corpus linguistics is considered.” On *that* point, I think he’s spot on.)

    Second, James praises the corpus analysis offered in the appellants’ supplemental brief as a fallback position, saying that they “they provided some compelling arguments in support of their theory that at the time of the founding the “militia” and “rights of the people” extended to eighteen-year-olds.” But I’m surprised that he failed to mention that although they purported to provide corpus data regarding “well regulated militia,” their analysis dealt only with “militia” as an isolated word, not the full phrase.

    As I’m sure James is aware, that’s not the right way to do corpus linguistics. And that part of the appellants’ argument committed one of the sins that they wrongly accused legal corpus linguistics of — considering words out of context.

    For those two reasons, I think James’s discussion of the corpus-based challenge to Heller is problematic, to say the least.

    Finally, I should disclose that I filed an amicus brief as part of the supplemental briefing in Jones, arguing that as to two of the issues raised by the court (“the right of the people” and “well regulated militia,” the corpus data supports the conclusion that Heller was wrong.

    I also sought leave to file a reply brief detailing the flaws in the appellants’ supplemental brief (and also some flaws in the state’s brief). My motion was denied — most likely b/c the Circuit Rules don’t permit amici to file reply briefs, so that I had to combine my motion for leave to file with a motion to suspend the operation of that rule.

    Not exactly a high-percentage shot.

    1. From James: Fair enough. But my point still stands. If a judge indicates he is interested in hearing arguments using a particular methodology, it is not advantageous to attack that methodology, particularly in an unsophisticated way. That’s a sure-fire way to make the judge annoyed.

      I think Cooper Kirk’s approach would have been more understandable from a strategic point of view had corpus linguistics been raised first by the opposing party. But in response to an order for supplemental briefing, it strikes me as insulting to the court.

      1. To James:

        Can you tell me where I might find the debate that you say is far from being settled — the one about how to interpret the corpus data ?

  3. Hypothetically, suppose someone thought legal corpus linguistics was junk science and that using it is something like writing alternate interpretations of a statute on index cards, handing the index cards to a pair of toddlers, instructing the toddlers to run a race with the cards, and voting for the interpretation carried by the winner, where the identity of the winner is adjudicated by a legally blind person who knows which toddler is carrying which card and has a stake in who wins the case (this is essentially what I believe, with only modest exaggeration). Now suppose that person is briefing a case where a court has expressed an interest in using corpus linguistics, but has no precedent committing it to do so (even supposing that precedent on methodology can commit a court to use some interpretive technique). Might one not have an ethical obligation to explain to the court why that technique is junk science, so that the court’s decision will have some legitimate basis in the law it’s interpreting? I’m inclined to think yes, if those are one’s views, though there is perhaps a competing obligation to assist one’s client by attempting to persuade the court that this putatively random method of generating results cuts in the client’s favor.

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