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Judging Ordinary Meaning?: Corpus Linguistics, the Frequency Fallacy, and the Extension-Abstraction Distinction in “Ordinary Meaning” Textualism Shlomo Klapper*

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Judging Ordinary Meaning?: Corpus Linguistics, the Frequency Fallacy, and the Extension-Abstraction Distinction in “Ordinary Meaning” Textualism Shlomo Klapper* Br. J. Am. Leg. Studies 8(2) (2019), DOI: 10.2478/bjals-2019-0013 (Mis)judging Ordinary Meaning?: Corpus Linguistics, the Frequency Fallacy, and the Extension-Abstraction Distinction in “Ordinary Meaning” Textualism Shlomo Klapper* ABSTRACT Rarely is a new yardstick of legal meaning created. But over the past decade, corpus linguistics has begun to be utilized as a new tool to measure ordinary meaning in statutory interpretation and original public meaning in constitutional interpretation. The legal application of corpus linguistics posits that an examination of every use of a term in a wide variety of documents can yield a more complete, impartial understanding of a word than can dictionaries, intuition, or an unsystematic survey of sources. Corpora could supplement, or even supplant, dictionaries and native- speaker intuition in legal analyses. For originalism in particular, legal corpus linguistics promises to offer what would be a more scientific methodology for a point of view which, until now, has lacked one. However, corpus linguistics, as applied to legal problems, falls prey to a fatal methodological criticism – the frequency fallacy. The criticism states that in a corpus, an unusual meaning can have many corpus entries while a perfectly ordinary meaning can be completely absent from the corpus. That is, frequency is not a good measure of meaning. Since legal corpus linguistics relies on frequency, the corpus cannot inform legal meaning. This article parries this otherwise fatal critique. It argues that while the frequency fallacy is self-evidently true, the fallacy is not inherent to the corpus, but rather is an artifact of misinterpreting the corpus by treating it like a dictionary. This defense consists of a number of steps. The first step distinguishes between two different methods of discerning ordinary meaning: extension and abstraction. As illustrated by Yates v. United States and United States v. Marshall, extension entails extending the statutory term to varying facts, while abstraction keeps the facts constant and abstracts out key qualities to find an appropriate term. Critically, this article argues that abstraction offers a way to avoid the frequency fallacy. Second, to use abstraction properly, one must analyze not only the presence of the legal term in question but also its absence; that is, one must determine the presence or absence of other terms to describe a similar factual scenario to distinguish between artifacts of language and facts about the world. * J.D. Candidate (2020), Yale Law School. Email: [email protected] author expresses his gratitude to the following for their valuable comments (in alphabetical order): John Beavers, Bill Eskridge , Tammy Gales, Abbe Gluck, Neal Goldfarb, Josh Knobe, Hadas Kotek, Tom Lee, David Louk, Kevin Tobia , Nina Varsava, and Evan Zoldan. Above all, the author would like to thank Larry Solan for introducing him to this subject and for supervising this paper. Last, thanks are due to the Yale Law School librarians for their patience, knowledge, and insight, specifically Stacia Stein, John Nann, and Jordan Jefferson © 2019 Shlomo Klapper, published by Sciendo. This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License. 8 Br. J. Am. Leg. Studies (2019) This article concludes by arguing that this method has a beneficial emergent quality. Not only does this answer make legal corpus analysis methodologically sound, but it also paves the way for the first tool to approximate how an ordinary person would read the law, thus potentially furthering the rule of law. KEYWORDS Corpus Linguistics, Originalism, Statutory Interpretation, Legal Interpretation, Yates, Marshall, Interpretative Methods CONTENTS Introduction ........................................................................................ 331 I. The Rise of Legal Corpus Linguistics ............................................ 334 A. Non-Legal Corpus Linguistics ............................................... 334 B. Legal Corpus Linguistics ......................................................... 335 1. How Did We Get Here?: Contributory Trends ............................. 335 a. The Formalist Turn ...................................................................... 335 b. Deficiencies in Interpretative Tools .............................................. 339 c. The Age of “Big Data” ................................................................. 341 2. Examples of Legal Corpus Linguistics ........................................ 341 a. Muscarello v. United States ......................................................... 342 b. “Commerce” ................................................................................. 342 c. State v. Rasabout ........................................................................... 343 d. People v. Harris ............................................................................ 343 e. “Officers of the United States” ..................................................... 344 f. “Emoluments” ............................................................................... 345 g. “Bear Arms” ................................................................................. 346 II. The Frequency Fallacy ................................................................... 346 A. The Implicit Methodology: Common Means Ordinary ................ 347 B. The Current Critique: A Frequentist Methodology Ignores Lurking Variables ........................................................................................... 347 328 (Mis)judging Ordinary Meaning?: Corpus Linguistics, the Frequency Fallacy, and the Extension-Abstraction Distinction in “Ordinary Meaning” Textualism C. How the Frequency Fallacy Undermines Corpus Analyses of Legal Cases ................................................................................................. 349 1. Muscarello v. United States .......................................................... 349 2. “Commerce” ................................................................................. 350 3. State v. Rasabout ........................................................................... 350 4. “Officers of the United States” ..................................................... 351 5. “Emoluments” ............................................................................... 351 6. “Bear Arms” .................................................................................. 351 D. Conclusion: A Challenge to the Corpus Enterprise..................... 352 III. Solving the Frequency Fallacy ................................................... 352 A. Two Methods of Discerning Ordinary Meaning: Extension and Abstraction ........................................................................................ 353 B. The Extension: Abstraction in Practice ........................................ 354 Yates v. United States ........................................................................ 354 United States v. Marshall .................................................................. 355 C. A New Diagnosis: Applying the Dictionary’s Extensions Method in a Corpus World .................................................................................... 357 D. The Solution: Using an Abstractions Approach in Corpus Analyses ........................................................................... 358 1. Searching for Alternatives ............................................................ 358 2. Ordinariness by relative frequencies ............................................ 358 3. Revisiting Cases ............................................................................ 361 a. Muscarello v. United States .......................................................... 361 b. “Commerce” ................................................................................. 361 c. State v. Rasabout ........................................................................... 362 d. “Bear Arms” ................................................................................. 362 IV. Reflections: Implications for Statutory Interpretation .......... 363 A. How to Use a Corpus: Qualitative, Not Quantitative .................. 363 B. The Tenacity of Extension ............................................................. 364 329 8 Br. J. Am. Leg. Studies (2019) C. The Peril of “Gerrymandering” a Word ...................................... 365 D. The Ultimate Potential of Corpus Linguistics ............................. 366 330 (Mis)judging Ordinary Meaning?: Corpus Linguistics, the Frequency Fallacy, and the Extension-Abstraction Distinction in “Ordinary Meaning” Textualism Introduction Article I, Section 1 of the Constitution vests all federal legislative power in Congress, while Article I, Section 7 sets forth the process for effectuating this power through passage of legislation by both houses and either presidential approval or veto override. Article III, Section 2 delegates the application—and, thus, the interpretation— of these laws to concrete “cases” and “controversies” to the judiciary. The judiciary is needed because the law is indeterminate.1 Ideally, the legislation passed by Congress and signed by the President would be perfectly determinate: each transgression or transaction, every dispute or deed could be easily and consistently placed, or not placed, in a legal category. However, while this holds true in “easy” cases, a minority of cases, perhaps inevitably, will be legally indeterminate,
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