Document Type
Article
Publication Date
2020
ISSN
1087-5468
Publisher
Michigan State University College of Law
Language
en-US
Abstract
This Article challenges this new prevailing wisdom, puts legal corpus linguistics in the context of other meaning-making technologies, and suggests an approach for analyzing any technology of language in the law. One of my aims is to caution against technological exceptionalism—a view that computerized, automated, or big-data approaches are somehow special, perhaps more trustworthy, less subjective, and most likely to succeed. Rather, I argue that we should ask the same questions and make the same demands of any method of interpretation.
Any technology, after all, is only as useful as the way it is used: Technology depends on technique. So even when using or analyzing a new technology, we should ask some old questions. What are the means this technology employs, what are the ends it claims to reach, and does it convincingly relate the two? What are its premises, what assumptions do they rest on, and how do they structure interactions with the object of analysis? What other options are available and how do they compare?
Technology, in this sense, is not neutral nor passive. It is not just an effect yielded by external causes like scientific development. It is a cause in its own right. Because of this causal power, it is particularly important to examine the underlying assumptions that help construct, and are perpetuated through, a given technology. And this causality is
true of old-fashioned techniques as much as of newfangled ones. The high-efficiency washing machine and the simple washboard are both technologies of clothes washing and should both be subject to the same interrogation about means–ends relations, built-in assumption, broader effects, and comparative advantages. To elucidate these points, I first draw on theorists who have influenced our understandings of the production of knowledge and technological development.
I then introduce legal corpus linguistics, describing its origins in academic linguistics and the somewhat different way it has been practiced in legal interpretation.4 Having laid this groundwork, I ask how we should evaluate this emerging technology and its role in legal interpretation. I argue that legal corpus linguistics fails to coherently relate its methods, questions, aims, and claims. It promises more than it can achieve. That mistake, moreover, is not costless. The methodology inscribes a peculiar view of legal meaning: a narrow, asocial, and abstracted notion of things that are in fact broad, social, and practice-based. The illusion of simplicity that legal corpus linguistics propagates undermines our evolving understanding of the real complexities of law and leaves out participants and contexts that are crucial to the production of law as a social force.
To probe its implications further, I then put legal corpus linguistics in the context of some other ways of giving laws meaning.6 I choose two that sit at the extremes of simplicity and complexity: dictionary definitions on the one hand and administrative rulemaking procedures on the other. These may seem unrelated or incommensurable at first glance. But in fact, they all are technologies of legal interpretation that should be considered in comparison to one another. Comparison also helps illuminate those aspects of legal corpus linguistics that fit it snugly into particular legal ideologies, but blind it to the realities of how law functions in society.
Recommended Citation
Anya Bernstein,
Technologies of Language Meet Ideologies of Law
,
2020
Michigan State Law Review
1241
(2020).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/4278
Comments
From Michigan State Law Review’s 2019-2020 Symposium on Law, Language, and Technology