Law Commons^™

The Case Of The Exemption Claimants: Religion, Conscience, And Identity, Steven D. Smith

BYU Law Review

No abstract provided.

Semantic Originalism, Moral Kinds, And The Meaning Of The Constitution, Ash Mcmurray

BYU Law Review

No abstract provided.

Comments On James C. Phillips & Jesse Egbert, Advancing Law And Corpus Linguistics: Importing Principles And Practices From Survey And Content-Analysis Methodologies To Improve Corpus Design And Analysis, Edward Finegan

BYU Law Review

No abstract provided.

A Lawyer’S Introduction To Meaning In The Framework Of Corpus Linguistics, Neal Goldfarb

BYU Law Review

Corpus linguistics is more than just a new tool for legal interpretation. Work in corpus linguistics has generated new ways of thinking about word meaning and about the interpretation of words in context. These insights challenge the assumptions that lawyers and judges generally make about words and their meaning. Although the words that make up a sentence are generally regarded as the basic units of meaning, corpus analysis has shown that in many cases, the meaning of a word as it is used in a given context is a function, not of the word by itself, but of the word’s …

Triangulating Public Meaning: Corpus Linguistics, Immersion, And The Constitutional Record, Lawrence B. Solum

BYU Law Review

This Article contributes to the development of an originalist methodology by making the case for an approach that employs three distinct methods, each of which serves as a basis for confirming or questioning the results reached by the other two. This approach will be called the Method of Triangulation. The three component techniques are as follows: 1. The Method of Corpus Linguistics: The method of corpus linguistics employs large-scale data sets (corpora) that provide evidence of linguistic practice. 2. The Originalist Method of Immersion: The method of immersion requires researchers to immerse themselves in the linguistic and conceptual world of …

Evidence-Based Jurisprudence Meets Legal Linguistics—Unlikely Blends Made In Germany, Hanjo Hamann, Friedemann Vogel

BYU Law Review

German legal thinking is renowned for its hair-splittingly sophisticated dogmatism. Yet, some of its other contributions to research are frequently overlooked, both at home and abroad. Two such secondary streams recently coalesced into a new corpus-based research approach to legal practice: Empirical legal research (which had already developed in Germany by 1913) and research on language and law (following German pragmatist philosopher Ludwig Wittgenstein’s work of 1953). This Article introduces both research traditions in their current German incarnations (Evidence-Based Jurisprudence and Legal Linguistics) and shows how three common features—their pragmatist observation of social practices, their interest in dissecting legal authority, …

Advancing Law And Corpus Linguistics: Importing Principles And Practices From Survey And Content Analysis Methodologies To Improve Corpus Design And Analysis, James C. Phillips, Jesse Egbert

BYU Law Review

The nascent field of law and corpus linguistics has much to offer legal interpretation. But to do so, it must more fully incorporate principles from survey and content-analysis methodologies used in the social sciences. Importing such will provide greater rigor, transparency, reproducibility, and accuracy in the important quest to determine the meaning of the law. This Article highlights some of those principles to provide a best- practices guide to those seeking to perform law and corpus linguistic analysis.

Corpus Linguistics As A Tool In Legal Interpretation, Lawrence M. Solan, Tammy Gales

BYU Law Review

In this paper, we set out to explore conditions in which the use of large linguistic corpora can be optimally employed by judges and others tasked with construing authoritative legal documents. Linguistic corpora, sometimes containing billions of words, are a source of information about the distribution of language usage. Thus, corpora and the tools for using them are most likely to assist in addressing legal issues when the law considers the distribution of language usage to be legally relevant. As Thomas R. Lee and Stephen C. Mouritsen have so ably demonstrated in earlier work, corpus analysis is especially helpful when …

Ordinary Meaning And Corpus Linguistics, Stefan Th. Gries, Brian G. Slocum

BYU Law Review

This Article discusses how corpus analysis, and similar empirically based methods of language study, can help inform judicial assessments about language meaning. We first briefly outline our view of legal language and interpretation in order to underscore the importance of the ordinary meaning doctrine, and thus the relevance of tools such as corpus analysis, to legal interpretation. Despite the heterogeneity of the judicial interpretive process, and the importance of the specific context relevant to the statute at issue, conventions of meaning that cut across contexts are a necessary aspect of legal interpretation. Because ordinary meaning must in some sense be …

Datamining The Meaning(S) Of Progress, Jake Linford

BYU Law Review

No abstract provided.

The Dictionary As A Specialized Corpus, Jennifer L. Mascott

BYU Law Review

Scholars consider reliance on dictionary definitions to be the antithesis of objective, big-data analysis of ordinary meaning. This Article contests that notion, arguing that when dictionaries are treated as a specialized database, or corpus, they provide invaluable textured understanding of a term. Words appear in dictionaries both as terms being defined and as terms defining other words. Examination of every reference to a contested term throughout a dictionary’s definitional entries of other words may substantially benefit statutory and constitutional interpretation. Because dictionaries catalog language, their use as a specialized corpus provides invaluable insight into the ways a particular word is …

The Original Meaning Of “Religion” In The First Amendment: A Test Case Of Originalism’S Utilization Of Corpus Linguistics, Lee J. Strang

BYU Law Review

Originalism is the theory of constitutional interpretation that identifies the constitutional text’s public meaning when it was ratified as its authoritative meaning. Corpus linguistics is the study of word-use regularities and patterns, primarily in written texts. In a prior article, I argued that originalists should utilize corpus linguistics to facilitate originalism’s capacity to accurately uncover this original meaning. However, my arguments there were theoretical; this Essay provides a “test case” of corpus linguistics’ capacity to increase originalism’s methodological accuracy. This Essay accomplishes three modest goals. First, it provides a practical example of the application of corpus linguistics to originalism. This …

The Power Of Words: A Comment On Hamann And Vogel’S Evidence-Based Jurisprudence Meets Legal Linguistics—Unlikely Blends Made In Germany, Mark C. Suchman

BYU Law Review

By offering an international and interdisciplinary point of comparison, Hamann and Vogel demonstrate that current American forays into corpus-based legal scholarship reflect only a small sliver of the full range of possibilities for such research. This Comment considers several key branching points that may lie ahead, as the nascent literature begins to mature. In particular, the Comment examines two vexing ambiguities in the corpus-linguistic agenda: the first centers on the ambiguous meaning of legal “empiricism”; the second, on the ambiguous relationship between words and actions. To achieve its full potential, legal corpus linguistics will need to move beyond mere description, …

Who Decides? The Title Ix Religious Exemption And Administrative Authority, Elise S. Faust

BYU Law Review

The Title IX religious exemption demonstrates how statutory religious exemptions can help further social change by neutralizing potential conflict with religious dissenters. Part of the reason for its success is that it is narrowly constructed and automatically applies to qualifying institutions. However, the regulations contradict the statutory text by potentially giving the Department of Education discretion to grant or deny exemptions. Were the Department to fully exercise this power, its actions would conflict with both the language of the statute and the Constitution. The Department of Education’s recent scrutiny of the “controlled by” language of the exemption provides an example …

Why Religious Freedom? Why The Religiously Committed, The Religiously Indifferent, And Those Hostile To Religion Should Care, Brett G. Scharffs

BYU Law Review

No abstract provided.

When Facts Don't Matter, Eric Berger

BYU Law Review

We are used to thinking that facts shape legal outcomes, but sometimes the Supreme Court wants nothing to do with facts. In some high-profile constitutional decisions, the Roberts Court has ignored important congressional findings, deeming irrelevant facts that document the very mischief Congress sought to remedy. Similarly, in these same cases the Court exploits the muddy line between facial and as-applied challenges to avoid confronting particular facts. The Justices in these cases do not question the veracity of seemingly relevant facts. Rather, they write their opinions as though these facts don’t matter. This Article examines the Court’s penchant for brushing …

Take The Fifth . . . Please!: The Original Insignificance Of The Fifth Amendment’S Due Process Of Law Clause, Gary Lawson

BYU Law Review

The Fifth Amendment’s Due Process of Law Clause adds nothing to the Constitution’s original meaning. Every principle for limiting federal executive, judicial, and even legislative powers that can plausibly be attributed to the idea of “due process of law”—from the principle of legality forbidding executive or judicial action in the absence of law, to the requirement of notice before valid judicial judgments, to the limitation on arbitrary governmental action that today goes under the heading of “substantive due process”—is already contained in the text and structure of the Constitution of 1788. The Fifth Amendment Due Process of Law Clause confirms …

How The Constitution Shall Not Be Construed, Lochlan F. Shelfer

BYU Law Review

The dominant historical narrative of the Ninth Amendment views the Clause as an exclusively “Federalist” provision with one purpose: to protect against the fear among Federalists that the very enumeration of any rights in a Constitution would imply that the universe of unenumerated natural rights was left unprotected, or that federal power would be expanded by implication.

This narrative of the Ninth Amendment, however, is incomplete in that it ignores the Clause’s Anti-Federalist side. This Article argues that the Ninth Amendment was proposed and ratified partly in response to the Anti-Federalist fear that particular rights-guaranteeing provisions of the Constitution could …

Why Judicial Deference To Administrative Fact-Finding Is Unconstitutional, John Gibbons

BYU Law Review

No abstract provided.

Quasi-Constitutional Protections And Government Surveillance, Emily Berman

BYU Law Review

The post-Edward Snowden debate over government surveillance has been vigorous. One aspect of that debate has been widespread criticism of the Foreign Intelligence Surveillance Court (FISC), alleging that the FISC served as a rubber stamp for the government, consistently accepting implausible interpretations of existing law that served to expand government surveillance authority; engaging in tortured analyses of statutory language; and ignoring fundamental Fourth Amendment principles. This Article argues that these critiques have entirely overlooked critical aspects of the FISC’s jurisprudence. A close look at that jurisprudence reveals a court that did, in fact, vigorously defend the interests customarily protected by …

On Doctrinal Confusion: The Case Of The State Action Doctrine, Christopher W. Schmidt

BYU Law Review

In this Article, I use a case study of the Fourteenth Amendment’s state action doctrine as a vehicle to consider, and partially defend, the phenomenon of persistent doctrinal confusion in constitutional law. Certain areas of constitutional law are messy. Precedents seem to contradict one another; the relevant tests are difficult to apply to new facts and new issues; the principles that underlie the doctrine are difficult to discern. They may become a “conceptual disaster area,” as Charles Black once described the state action doctrine. By examining the evolution of the state action doctrine, this notoriously murky field of constitutional law, …

The Particulate Constitution: Uncertainty And New Originalism, Elise Carter

BYU Law Review

No abstract provided.

A Half-Baked Law: How The Supreme Court's Decision In Koontz V. St. Johns River Water Management District Misses A Key Ingredient To Fifth Amendment Protection, Garrett W. Messerly

BYU Law Review

No abstract provided.

The Original Understanding Of Constitutional Legitimacy, Ilan Wurman

BYU Law Review

This Article argues that three influential schools of originalism, which we might label libertarian, progressive, and conservative, adhere to particular understandings of constitutional legitimacy, which then inform their particular constitutional hermeneutics. The Article demonstrates that as originally understood by the Founders, however, constitutional legitimacy depended on all three conceptions advocated by these schools of thought—that is, the Constitution had to protect natural rights, it had to enable self-government, and it had to be ratified by popular sovereignty. Further, the Article gives considerable treatment—remarkably for the first time in the law review literature— to James Madison’s letter in response to Thomas …

Originalism Talk: A Legal History, Mary Ziegler

BYU Law Review

Progressives have long recognized the tremendous political appeal of originalism. For many scholars, originalism appears to have succeeded because it achieves results consistent with conservative values but promises judicial neutrality to the public. By drawing on new historical research on anti-abortion constitutionalism, this Article argues for a radically different understanding of the originalist ascendancy. Contrary to what we often think, conservative social movements at times made significant sacrifices in joining an originalist coalition. These costs were built in to what this Article calls originalism talk—the use of arguments, terms, and objectives associated with conservative originalism.

Scholars have documented the costs …

What Lies Beneath: Interpretive Methodology, Constitutional Authority, And The Case Of Originalism, Christopher J. Peters

BYU Law Review

No abstract provided.

Reconciling Originalism With The Father Of Conservatism: How Edmund Burke Answers The Disruption Dilemma In N.L.R.B. V. Noel Canning, Brad Masters

BYU Law Review

No abstract provided.

The Unnecessary And Restrictive Constitutional Amendments Concerning Religious Freedom In Mexico, Javier Saldaña Serrano

BYU Law Review

No abstract provided.

“. . . Speak Now Or Forever Hold Your Peace . . .” —The Influence Of Constitutional Argument On Same-Sex Marriage Legislation Debates In Australia, Neville Rochow

BYU Law Review

No abstract provided.

Liberal Democracy And The Right To Religious Freedom, Aldir Guedes Soriano

BYU Law Review

Foremost, this paper examines the current situation of the rights to religious freedom and democracy around the world, which deserve attention and concern. Civil liberties are currently in crossfire. This article examines the foundations of the right to religious freedom. Depending on the philosophical foundations, there are two different rationales for the right to religious freedom: liberal and anti-liberal. According to the liberal tradition, the best reason to protect religious freedom rests upon the autonomy of the individual conscience. It is clear that a constitutional democracy does not allow the establishment of any religion by the government, using either executive …