Linguistics in Law

Article excerpt

I. INTRODUCTION

Many judges react against judicial activism. The politics are notorious. The methodology, though, is not necessarily controversial. Deciding "objectively" by following precedent, tried principles, and--as much as possible--the "plain meaning" of statutory terms are strategies for constraining discretion. Some legal scholars say that such judges aim to decide in a scientific manner. (1) In particular, these scholars see plain-meaning analysis as linguistics, and linguistics as science. (2)

Scholars who submit to the notion that statutory interpretation may often be an exercise in linguistics tout that discipline's commitment to the empirical testing of conclusions. (3) Their view is that judges opposed to activism find an objective anchor in linguistic techniques. Thinkers hostile to that notion say that such judges "pretend[] they mechanically follow linguistic science" (4) and sometimes adopt a sort of linguistic approach to bolster a decision made on other grounds with an aura of scientific credibility. (5) So even those thinkers presuppose that a number of judges occasionally make use of linguistic analysis. (6)

Commentators who favor broader judicial reliance on linguistics argue that "the methods of linguistic science can significantly inform ... [judges'] innate `common sense' about their own language, thus providing some objective and principled ways to deliberate over hard cases of interpretation." (7) These scholars see Justice Scalia as the paladin of law's linguistic turn, which they call "`the new textualism." (8) Their point of departure is Justice Scalia's summoning of the "plain meaning" of statutory language, and his concomitant de-emphasis upon legislative histories. (9)

For Justice Scalia, an objective appraisal of ordinary meaning is more reliable and less prone to subjective judicial discretion than is delving into legislative histories. (10) His opinions resist the doctrine "that if the legislative history of an enactment reveals a `clearly expressed legislative intention contrary to [the enactment's] language,' the Court is required to `question the strong presumption that Congress expresses its intent through the language it chooses.'" (11) This doctrine, says Justice Scalia, is "an ill-advised deviation from the venerable principle that if the language of a statute is clear, that language must be given effect--at least in the absence of a patent absurdity." (12)

This article questions the link between linguistics and statutory construction, as perceived by legal scholars. Toward its end, the article revisits Plain Meaning and Hard Cases, the important paper written by Clark Cunningham and three linguists--most familiarly Judith N. Levi--that appeared in the Yale Law Journal in 1994, (13) which also spurred the Spring 1995 Law and Linguistics Conference at Northwestern University. (14) At issue here will be Cunningham/Levi's recommendation that linguists with expertise in areas of word use, meaning, and reference, be brought into legal cases to "provide focused and informed analyses of the language issues in question." (15)

This article's goal is modest--it is to explain that law and linguistics pursue different ends, and that for this reason, linguists construing statutes will miss legally decisive issues. More importantly, courts relying on linguists--in the manner the new textualists advocate--will have to scrutinize linguistic findings closely and rectify them, or risk issuing assessments that fail to cohere with the decision-making guidelines announced in relevant precedents. The article does not object to a cooperative arrangement between law and linguistics, or to any other interdisciplinary approach; indeed, linguistics and the other scientific and social scientific disciplines influence legal work and decision making in a variety of ways that scholars may beneficially explore. There are, however, justifiable grounds for resisting proposals that assign non-legal experts an elevated role in the adjudicatory process. …