Social and Behavioral Sciences Commons^™

“Any”, James J. Brudney, Ethan J. Leib

BYU Law Review

Our statute books use the word “any” ubiquitously in coverage and exclusion provisions. As any reader of the Supreme Court’s statutory interpretation docket would know, a large number of cases turn on the contested application of this so-called universal quantifier. It is hard to make sense of the jurisprudence of “any.” And any effort to offer a unified approach—knowing precisely when its scope is expansive (along the “literal-meaning” lines of “every” and “all”) or confining (having a contained domain related to properties provided by contextual cues)—is likely to fail. This Article examines legislative drafting manuals, surveys centuries of Court decisions, …

Rebuilding Grid Governance, Joel B. Eisen, Heather E. Payne

BYU Law Review

As climate change sharpens the focus on our electricity systems, there is widespread agreement that the institutions that govern our electric grid must change to realize a clean energy future in the timescale necessary. Scholars are actively debating how grid governance needs to change, but in this Article we demonstrate that current proposals are insufficient because they do not contemplate “rebuilding.” This Article defines “rebuilding” as ending entities tasked with grid governance and creating new ones to take their place. We propose what no one else has: an overarching framework for rebuilding any grid governance institutions.

This Article discusses when …

Creating Oases Throughout America’S Food Deserts, Hannah M. Dahle

BYU Law Review

No abstract provided.

Linguistic Estoppel: A Custodial Interrogation Subject’S Reliance On Traditional Language Customs When Facing Unknown Expectations For Legally Efficacious Speech, Taylor J. Smith

BYU Law Review

For various reasons, speakers often communicate indirectly, hiding their words’ true meaning beneath an apparent surface meaning. For example, a woman trying to brush off her co-worker’s date invitation might respond, “I have to prepare for a presentation tomorrow.” While the words’ surface meaning doesn’t relate to the date invitation, the hearer usually understands the underlying message—that is to say, the words’ function differs from their form. However, because the law’s language ideology requires directness and surface-level meaning, lay-speaking interrogation subjects often have difficulty effectively invoking their Miranda rights. Because the legal system’s search for determinacy often results in reliance …

Corpus Linguistics And Gun Control: Why Heller Is Wrong, Kyra Babcock Woods

BYU Law Review

No abstract provided.

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

BYU Law Review

No abstract provided.

Corpus Linguistics In The Chevron Two-Step, Jacob Crump

BYU Law Review

No abstract provided.

Defending Place-Based Philanthropy By Defining The Community Foundation, Roger Colinvaux

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.

Corpus Linguistics And The Criminal Law, Carissa Byrne Hessick

BYU Law Review

This brief response to Ordinary Meaning and Corpus Linguistics, an article by Stefan Gries and Brian Slocum, explains why corpus linguistics represents a radical break from current statutory interpretation practice, and it argues that corpus linguistics ought not be adopted as an interpretive theory for criminal laws. Corpus linguistics has superficial appeal because it promises to increase predictability and to decrease the role of judges’ personal preferences in statutory interpretation. But there are reasons to doubt that corpus linguistics can achieve these goals. More importantly, corpus linguistics sacrifices other, more important values, including notice and accountability.

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, …

A Muslim Registry: The Precursor To Internment?, Sahar F. Aziz

BYU Law Review

Being political scapegoats in the indefinite “war on terror” is the new normal for Muslims in America. With each federal election cycle or terrorist attack in a Western country comes a spike in islamophobia. Candidates peddle tropes of Muslims as terrorists in campaign materials and political speeches to solicit votes. Government officials call for bold measures—extreme vetting, categorical bans, and mass deportations—to regulate and exclude Muslim bodies from U.S. soil. The racial subtext is that Muslims in the United States are outsiders who do not belong to the political community. A case in point is the “Muslim ban” issued by …

#Ordinarymeaning: Using Twitter As A Corpus In Statutory Analysis, Lauren Simpson

BYU Law Review

No abstract provided.

The Courts And Foreign Affairs At The Founding, Kevin Arlyck

BYU Law Review

No abstract provided.

Developing Countries In An Age Of Transparency And Disclosure, Diane Ring

BYU Law Review

No abstract provided.

Misaligned Interests In Private Equity, Jarrod Shobe

BYU Law Review

This Article examines the unique set of agency costs that arise from the separation of ownership and control in private equity funds. These funds operate without significant regulatory or legislative oversight. Instead, they are governed primarily by contractual arrangements between investors and managers that are poorly understood by legal scholars. This Article looks into the black box of these internal arrangements to provide a broad analysis of whether and how these contracts align or misalign the interests of investors and managers. It turns out that the compensation of managers, which is commonly thought to serve as the most powerful tool …

Unsettled: How Climate Change Challenges A Foundation Of Our Legal System, And Adapting The Legal State, Victor B. Flatt

BYU Law Review

One of the fundamental goals of law is to end disputes. This push to “settlement” is foundational and has historically worked to increase societal efficiency and justice by engendering legitimate expectations among the citizenry. However, the efficient nature of much legal finality, settlement and repose only exists against a background of evolution of the physical environment that is predictable and slowpaced. That background no longer exists. The alteration of the physical world, and thus, the background for our societal structure and decisions, is accelerating rapidly due to human-caused climate change. This creates a mismatch between the law’s tendency to finality …

From Library To Liability—Importing Trade Secret Doctrines To Erase Unfair Copyright Risks Lurking In Youtube’S Creative Commons Library, Adam Balinski

BYU Law Review

No abstract provided.

Regulating Identity: Medical Regulation As Social Control, Matt Lamkin

BYU Law Review

New biomedical technologies offer growing opportunities not only to prevent and treat illnesses, but also to change how healthy people think, feel, behave, and appear to others. Controversies over these nontherapeutic practices are a pervasive feature of contemporary American culture, from students on “study drugs” and cops on steroids to skin-lightening by black celebrities and the over-prescription of antidepressants. Yet the diversity of these controversies often masks their common root—namely, disputes about the propriety of using medical technologies as tools for shaping one’s identity.

Some observers believe these so-called “enhancement” practices threaten important values, offering unfair advantages to users and …

Saving The Internet: Why Regulating Broadband Providers Can Keep The Internet Open, Emma N. Cano

BYU Law Review

No abstract provided.

Local Home Rule In The Time Of Globalization, Kenneth A. Stahl

BYU Law Review

Cities are increasingly taking the lead in tackling global issues like climate change, financial regulation, economic inequality, and others that the federal and state governments have failed to address. Recent media accounts have accordingly praised cities as the hope of our globally networked future. This optimistic appraisal of cities is, however, undermined by local governments’ cramped legal status. Under the doctrine of home rule, local governments can often only act in matters deemed “local” in nature and cannot regulate “statewide” issues that may have impacts beyond local borders. As a result, the global issues that local governments are being praised …