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Law & Humanities Blog

Law & Humanities Blog

Understanding Plain Meaning

Posted: 02 Jul 2011 09:13 AM PDT

Stephen C. Mouritsen has published The Dictionary Is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning at 2010 Brigham Young University 1915. Here is the abstract.



"Plain meaning," said Judge Frank Easterbrook, "as a way to understand language is silly. In interesting cases, meaning is not 'plain'; it must be imputed; and the choice among meanings must have a footing more solid than a dictionary."



This paper proposes an empirical method for determining the "ordinary meaning" of statutory terms; an approach grounded in a linguistic methodology known as Corpus Linguistics. I begin by addressing a number of commonly held, but ultimately erroneous assumptions about the content and structure of dictionaries – assumptions that find their way into judicial reasoning with alarming frequency.



I then outline an approach to the resolution of lexical ambiguity in statutory interpretation – an approach based on Corpus Linguistics methods. Corpus Linguistics is an empirical methodology that analyzes language function and use by means of large electronic databases called corpora. A corpus is a principled collection of naturally occurring language data, typically tagged with grammatical content and searchable in such a way that the ordinary use of a given term in a given context may be ascertained.



Though Corpus Linguistics is not a panacea, the methodology has the potential to remove the determination of ordinary meaning from the black box of the judge's mental impression and render the discussion of the ordinary meaning of statutory terms one of tangible and quantifiable reality.
Download the article from SSRN at the link.

Law and Communications Theory

Posted: 02 Jul 2011 09:06 AM PDT

Mark Greenberg, UCLA School of Law and Department of Philosophy, has published Legislation as Communication? Legal Interpretation and the Study of Linguistic Communication in Philosophical Foundations of Language in the Law (A. Marmor & S. Soames eds.; Oxford University Press, 2011).


According to a view – really a family of related views – that has considerable currency at the moment, philosophy of language and linguistics have a direct bearing on the content of the law.
I call this view the communicative-content theory of law or, for short, the communication theory. According to the communication theorists, the study of language and communication reveals that the full linguistic meaning of an utterance is what the speaker or author communicates by the utterance – call it communicative content – which may go well beyond the literal meaning of the words. (On the standard understanding, communicative content is constituted by the content of certain specific communicative intentions of the speaker.) The communication theorists conclude that a statute's contribution to the content of the law is its communicative content. In this chapter, I grant many of the assumptions of the communication theorists and then argue that there are many candidates for a statute's contribution to the content of the law, including different linguistic and mental contents. The study of language can be important in helping us to make and clarify such distinctions, but beyond this information-providing role, it has nothing to say about which, if any, of these candidates constitutes a statute's contribution to the law. The communication theory therefore lacks the resources to say what any statute's contribution is. Ultimately, I suggest that trying to understand legislation on the model of communication is misguided because legislation and legislative systems have purposes that have no parallel in the case of communication and that may be better served if a statute's contribution to the content of the law is not constituted by what is communicated by the legislature. Download the text from SSRN at the link.

Using Trials As Teaching Materials

Posted: 02 Jul 2011 09:02 AM PDT

Rupert Macey-Dare, St. Cross College, Oxford, has published True Crime - Guilty or Not Guilty - David Bain. Here is the abstract.
This paper is a cut down version of Advocacy Masterclass – Retrial of David Bain, but with detailed analysis and answers removed. This shorter paper is designed for use in classroom teaching and examination of real courtroom advocacy, e.g. with students watching and discussing the video links and stepping in to read out trial transcripts and re-enact examples whenever necessary.



Early on the morning of Monday 20 June 1994, five members of the Bain family: Robin (58), Margaret (5'7 and their teenage children Arawa (19), Laniet (18) and Stephen (14) were slaughtered in the family home at 65 Every St, Dunedin, New Zealand. There was one survivor, the eldest son, David Bain (22), a student of music and classics at Otago University, who reported the scene of carnage after his morning paper round. Next year, on 29 May 1995, David Bain was himself convicted on all five counts of murder and sentenced to life imprisonment, without parole for the first 16 years.



Fourteen years later, on 6 March 2009, and after two references from the New Zealand Governor General, three hearings by the New Zealand Court of Appeal and a final, quashing review by the Privy Council, the stage was set for one of most notorious criminal cases in New Zealand and Commonwealth history, the retrial of David Bain.



How did the two sides fight this case? Who won the advocacy battle and what techniques, explicit and implicit, did they use? What was the verdict, indeed, what could or should it have been?
Download the text from SSRN at the link.

A jury initially convicted David Bain of the murders of his family in Dunedin, New Zealand, in 1995. He was retried and acquitted in 2009.
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