The ideology of legal corpus linguistics

Language Log 2024-06-04

Jonathan Weinberg sent in a link to this article — Molly Redden, "How A Luxury Trip For Trump Judges Doomed The Federal Mask Mandate", Huffington Post 6/3/2024:

Buried in the April 2022 ruling that struck down the Biden administration’s mask mandate was a section that was unusual for a court decision.

The outcome itself was far from surprising. Places all over the country were dropping local mask requirements, and the judge hearing this case — a challenge to the federal mandate to mask on planes and other public transportation — was a conservative Trump appointee, U.S. District Judge Kathryn Kimball Mizelle for the Middle District of Florida. Mizelle ruled that the Centers for Disease Control and Prevention’s mask requirement overstepped the agency’s legal authority.

What was eye-catching was her explanation of why. In her ruling, Mizelle wrote she had consulted the Corpus of Historical American English, an academic search engine that returns examples of how words and phrases are used in select historical texts. Mizelle searched “sanitation,” a crucial word in the 1944 statute that authorizes the CDC to issue disease-prevention rules, and found it generally was used to describe the act of making something clean. “Wearing a mask,” she wrote, “cleans nothing.”

Searching large linguistic databases is a relatively new approach to judicial analysis called legal corpus linguistics. Although it has gained in popularity over the last decade, it is barely discussed outside of an enthusiastic group of right-wing conservative legal scholars. Which raises the question: How did this niche concept wind up driving such a consequential decision in the country’s health policy?

I've been involved in "corpus linguistics" for more than 50 years — including founding the Linguistic Data Consortium in 1992, and promoting applications in legal arguments along with many other areas. In the cited Huffington Post article, Molly Redden goes on to highlight a connection of the legal applications to socio-political ideology:

Now, new disclosures seen by HuffPost shed some light. Just weeks before she issued the ruling, Mizelle had discreetly attended an all-expenses-paid luxury trip from a conservative group whose primary mission is to persuade more federal judges to adopt the use of corpus linguistics. For five days, Mizelle and more than a dozen other federal judges listened to the leading proponents of corpus linguistics in the comfort of The Greenbrier, an ostentatious resort spread out over 11,000 acres of West Virginia hillside.

The newly formed group that picked up the tab, the Judicial Education Institute, received more than $1 million in startup funding from the billionaire libertarian Charles Koch’s network and DonorsTrust, a nonprofit that has funneled millions in anonymous donations to right-wing causes and has been dubbed “the dark money ATM of the conservative movement.”

There's a logical connection between corpus-based analysis and "originalist" and "textualist" theories of legal interpretation, which do tend to be preferred on the right end of the political spectrum. But the many relevant LLOG posts over the decades are not clearly identified with a Kochian perspective: