Beyond intuitions, algorithms, and dictionaries: Historical semantics and legal interpretation
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1 Beyond intuitions, algorithms, and dictionaries: Historical semantics and legal interpretation Alison LaCroix, Jason Merchant University of Chicago LaCroix & Merchant (UChicago) Linguistics and the law May / 42
2 Origins and kinds of meaning and interpretation original (public) meaning, original intent, textualism, historicism, common law constitutionalism LaCroix & Merchant (UChicago) Linguistics and the law May / 42
3 Three major questions of linguistics: (1) a. What do we know when we know a language? (What is knowledge of language?) Chomsky s I-language (vs. E-language) b. How is this knowledge acquired? c. How is this knowledge used? LaCroix & Merchant (UChicago) Linguistics and the law May / 42
4 (2) What do we know when we know a language? a. What the words mean b. How words can be combined into phrases (including sentences) c. And more... LaCroix & Merchant (UChicago) Linguistics and the law May / 42
5 LaCroix & Merchant (UChicago) Linguistics and the law May / 42
6 (3) Susan saw the man with the telescope. S S NP Susan V saw VP Art the NP N man N P with NP Susan PP NP Art N V saw VP VP NP Art N the N man P with PP Art the NP N telescope the telescope LaCroix & Merchant (UChicago) Linguistics and the law May / 42
7 (4) this crime covers anyone who intentionally accesses a federal computer without authorization, and by means of one or more instances of such conduct alters, damages, or destroys information 18 U.S.C. 1030(a)(5)(A) debated in United States v. Morrison (1991). a. Adverb [VP and VP]: defense b. [Adverb VP] and [VP]: prosecution LaCroix & Merchant (UChicago) Linguistics and the law May / 42
8 VP VP Adv intentionally VP VP and VP VP access a computer... and VP alters... Adv intentionally VP access a computer... alters... info LaCroix & Merchant (UChicago) Linguistics and the law May / 42
9 US Constitution, Art.II, sect.2, clause 2: He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States... The President shall have Power to fill up Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. LaCroix & Merchant (UChicago) Linguistics and the law May / 42
10 PP NP S during the Recess of the Senate the president shall VP have power to VP fill up Vacancies that may VP happen LaCroix & Merchant (UChicago) Linguistics and the law May / 42
11 S NP the president shall VP have power to VP fill up Vacancies that may VP happen PP during the Recess of the Senate LaCroix & Merchant (UChicago) Linguistics and the law May / 42
12 S NP the president shall VP have power to VP fill up Vacancies that may VP PP during the Recess of the Senate happen LaCroix & Merchant (UChicago) Linguistics and the law May / 42
13 A clue to resolving the structural ambiguity: Compare Art. I sec. 3.2: and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies LaCroix & Merchant (UChicago) Linguistics and the law May / 42
14 US Constitution, Art.II, sect.2, clause 2: The President shall have Power to fill up Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. US Court of Appeals DC in Noel Canning v. National Labor Relations Board (1115 DC Circuit 17, 27 (2013): Contemporaneous dictionaries treated the as noting a particular thing Samuel Johnson, A Dictionary of the English Language 2041 (1755) LaCroix & Merchant (UChicago) Linguistics and the law May / 42
15 Samuel Johnson, A Dictionary of the English Language (1755) LaCroix & Merchant (UChicago) Linguistics and the law May / 42
16 Samuel Johnson, A Dictionary of the English Language (1755) LaCroix & Merchant (UChicago) Linguistics and the law May / 42
17 Even if particular = specific, specificity is neither necessary nor sufficient: definiteness specificity (or exhaustivity, exclusivity, universal quantification, etc.). Generics use definite articles: 1 The lion is a fearsome animal. 2 The madrigal is a polyphonic compositional form. 3 During the day, I allow my daughter to wear socks; at night, I don t. Compare: 4 *During day, I allow my daughter to wear socks; at the night, I don t. LaCroix & Merchant (UChicago) Linguistics and the law May / 42
18 Betrand Russell, On denoting, Mind (1905): (5) The king of France is bald = x[(kingoffrance(x)& y(kingoffrance(y) x = y))&bald(x)] LaCroix & Merchant (UChicago) Linguistics and the law May / 42
19 (6) What do these words mean? a. peripatetic (rank order: 36555; %; 1 in 3.5 million words) Example: Little empirical data is available about the evolution and development of peripatetic communities, but it appears that many contemporary peripatetics evolved from hunter-gatherers, or nomadic pastoralists b. pecuniary (rank order: 22108; frequency: %; 1 in 1 million words) Example: I will not protract these remarks on the subject of Mr. Micawber s pecuniary affairs. LaCroix & Merchant (UChicago) Linguistics and the law May / 42
20 (7) What do these words mean? a. bank (rank order: 538; frequency: %; 1 in 20,000 words) Examples: the tree was on the river s left bank, she put her money in the bank b. set (rank order: 189; 0.033%; 1 in 3300 words) Examples: set theory, a desk set, game, set, match, set the table, he was set up, he set the papers on the desk, a TV set c. the (rank order: 1; frequency: %; 1 in 20 words) LaCroix & Merchant (UChicago) Linguistics and the law May / 42
21 (8) What do these words mean? a. bank (rank order: 538; frequency: %; 1 in 20,000 words) Examples: the tree was on the river s left bank, she put her money in the bank b. set (rank order: 189; 0.033%; 1 in 3300 words) Examples: set theory, a desk set, game, set, match, set the table, he was set up, he set the papers on the desk, a TV set c. the (rank order: 1; frequency: %; 1 in 20 words) LaCroix & Merchant (UChicago) Linguistics and the law May / 42
22 (9) What do these words mean? a. bank (rank order: 538; frequency: %; 1 in 20,000 words) Examples: the tree was on the river s left bank, she put her money in the bank b. set (rank order: 189; 0.033%; 1 in 3300 words) Examples: set theory, a desk set, game, set, match, set the table, he was set up, he set the papers on the desk, a TV set c. the (rank order: 1; frequency: %; 1 in 20 words) LaCroix & Merchant (UChicago) Linguistics and the law May / 42
23 Historical patterns in the use of the definite article: Data from Google s n-gram corpus LaCroix & Merchant (UChicago) Linguistics and the law May / 42
24 Historical patterns in the use of the definite article: Data from Google s n-gram corpus without the consent of without consent of LaCroix & Merchant (UChicago) Linguistics and the law May / 42
25 with the consent of with consent of LaCroix & Merchant (UChicago) Linguistics and the law May / 42
26 for the love of for love of LaCroix & Merchant (UChicago) Linguistics and the law May / 42
27 during the recess during recess LaCroix & Merchant (UChicago) Linguistics and the law May / 42
28 Proportion of occurrences of during the recess to all occurrences of during (the) recess LaCroix & Merchant (UChicago) Linguistics and the law May / 42
29 Proportion of occurrences of the recess to all occurrences of recess LaCroix & Merchant (UChicago) Linguistics and the law May / 42
30 Therefore, the appellate court s opinion regarding the meaning and use of the may rest on a serious descriptive error. LaCroix & Merchant (UChicago) Linguistics and the law May / 42
31 Higher stakes: D.C. v. Heller 2008 McDonald v. Chicago 2010 LaCroix & Merchant (UChicago) Linguistics and the law May / 42
32 2nd Amendment: (10) A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. Questions: (11) a. Is bear arms an idiom? b. Can other objects appear with bear? c. Does the subject of bear arms always have to denote a collectivity? d. Does the subject always have to be plural? LaCroix & Merchant (UChicago) Linguistics and the law May / 42
33 2nd Amendment: (12) A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. Questions: (13) a. Is bear arms an idiom? b. Can other objects appear with bear? c. Does the subject of bear arms always have to denote a collectivity? d. Does the subject always have to be plural? LaCroix & Merchant (UChicago) Linguistics and the law May / 42
34 LaCroix & Merchant (UChicago) Linguistics and the law May / 42
35 LaCroix & Merchant (UChicago) Linguistics and the law May / 42
36 Likewise 0% for (14) a. bear a rifle b. bear a musket c. bear a pistol d. bear a weapon e. bear a knife f. bear rifles g. bear muskets h. bear pistols i. bear weapons Other uses of arms: (15) a. Put me under arms = make me a soldier b. be under arms = be in a militia/army c. be at arms = be armed/be equipped for military duty d. take arms against (a sea of troubles) LaCroix & Merchant (UChicago) Linguistics and the law May / 42
37 Google Books search 1 Jan Dec 1795: 181 results We classified by hand each text in the selections as either showing a militia/collective use or an individual use or undeterminable (C vs I vs U). We also counted the number of plural vs singular subjects, or undeterminable (p vs s vs u). A last category was for heraldic uses (H). LaCroix & Merchant (UChicago) Linguistics and the law May / 42
38 LaCroix & Merchant (UChicago) Linguistics and the law May / 42
39 The History of Great Britain, from the First Invasion of it by the Romans, 2nd edition, 1788, Volume 4, p. 142, by Robert Henry (Collective Singular): LaCroix & Merchant (UChicago) Linguistics and the law May / 42
40 Settlements in America, 1779, p. 175 (Collective Singular): LaCroix & Merchant (UChicago) Linguistics and the law May / 42
41 LaCroix & Merchant (UChicago) Linguistics and the law May / 42
42 Uses of bear arms in Google Books (N=62) LaCroix & Merchant (UChicago) Linguistics and the law May / 42
43 Uses of bear arms in Google Books (N=181) LaCroix & Merchant (UChicago) Linguistics and the law May / 42
44 Newspaper corpus, (sampled from 1013 tokens) America s Historical Newspapers (Readex) LaCroix & Merchant (UChicago) Linguistics and the law May / 42
45 The ineluctability of interpretation tools and their limits the illusion of authority automaticity of decision the algorithmic umpire remains a myth: Mouseover text: She: We told you it was hard. He: Yes, but now that I VE tried it, we KNOW it s hard. LaCroix & Merchant (UChicago) Linguistics and the law May / 42
46 The ineluctability of interpretation tools and their limits the illusion of authority automaticity of decision the algorithmic umpire remains a myth: Mouseover text: She: We told you it was hard. He: Yes, but now that I VE tried it, we KNOW it s hard. LaCroix & Merchant (UChicago) Linguistics and the law May / 42
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