Technology

In His Carpenter Dissent, Thomas Gives Nod to Emerging Legal Technology

What do words really mean?

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It is a good thing that legal scholars get the summer off, because it will give them that much more time to dissect and analyze the Supreme Court’s decision Friday in Carpenter v. United States, holding that the government’s acquisition of cell-site records is a Fourth Amendment search.

But in my blindered, legal-tech focused view of the world, I homed in on one short, three-line footnote buried in one of the four dissents — a footnote other readers would probably gloss over.

The sum of Carpenter’s majority and four dissenting opinions amounts to a 119-page discussion of the meaning and applicability of the “reasonable expectation of privacy” test. In his dissent, Justice Clarence Thomas argues that the test, first articulated by Justice John Marshall Harlan II in a concurring opinion in the 1967 case Katz v. United States, has no basis in the text or history of the Fourth Amendment.

The word “search” had never before been associated with the phrase “reasonable expectation of privacy” until Justice Harlan coined that phrase in 1967, Thomas writes. In fact, he continues:

The phrase “expectation(s) of privacy” does not appear in the pre-Katz federal or state case reporters, the papers of prominent Founders, early congressional documents and debates, collections of early American English texts, or early American newspapers.

Now comes the footnote. As sources for his search of “collections of early American English texts,” his footnote 4 cites three of the corpora created and published online by Brigham Young University: the Corpus of Historical American English, the Google Books (American) corpus, and the Corpus of Founding Era American English.

I alluded to this corpus not long ago here, in a column describing innovation initiatives at the J. Reuben Clark Law School at Brigham Young University. In describing technology innovation at the school, where I now serve on an advisory board, I wrote:

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In addition, BYU Law has developed a one-of-its-kind product devoted to law and corpus linguistics. The product analyzes collections of textual materials to help scholars and researchers get at the meaning of words as they naturally occur in speech and text. The goal is to help lawyers and judges ascertain the ordinary meaning of words through their usage.

The full BYU corpus originated not in the law school, but in the linguistics department, as a project of linguistics professor Mark Davies. His work — and his corpora — formed the foundation on which BYU Law, under the leadership of Dean D. Gordon Smith, began to pioneer the use of corpus linguistics in law.

In recent years, BYU Law has developed three corpora of its own — Corpus of Founding Era American English (one of the corpora cited by Thomas), Corpus of Early Modern English, and Corpus of Supreme Court of the United States. It has held three annual conferences on law and corpus linguistics. Last year, it appointed two corpus linguistics research fellows to help further develop its program. Recently, the BYU Law Review published a special issue devoted to corpus linguistics in law.

One of the issue’s authors is Neal Goldfarb, a Washington, D.C., lawyer who has filed a number of briefs in the Supreme Court and elsewhere using corpus linguistics and who writes the blog LAWnLinguistics. In his article, A Lawyer’s Introduction to Meaning in the Framework of Corpus Linguistics, Goldfarb writes that 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.

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In fact, by way of Goldfarb, Carpenter may not have been the first use of corpus linguistics in a Supreme Court opinion. In the 2011 case FCC v. AT&T Inc., Chief Justice John Roberts examined whether corporations have “personal privacy” within the meaning of the Freedom of Information Act. In deciding that they do not, Roberts appears to have relied on Goldfarb’s amicus brief that was based on the BYU corpora.

In 2016, the Michigan Supreme Court, in the case People v. Harris, became the first appellate court to formally endorse the use of corpus linguistics. To interpret the word “information,” it used BYU’s Corpus of Contemporary American English, explaining that the corpus allowed it to “analyze ordinary meaning through a method that is quantifiable and verifiable.”

In Utah, Thomas R. Lee, associate chief justice of that state’s Supreme Court, has used BYU’s corpus linguistics in published opinions and recently published an article in the Yale Law Journal, Judging Ordinary Meaning, in which he and co-author Stephen Mouritsen argue for using corpus-based analysis to interpret the original meaning of legal words and phrases. In the fall, he will teach a class on law and language at Harvard Law School that will use corpus linguistics.

So while Justice Thomas’s use of corpus linguistics was barely a blip in the entirety of Carpenter, it is noteworthy for recognizing and further legitimizing this emerging convergence of linguistics and technology and how it can be used in law.

Robert Ambrogi Bob AmbrogiRobert Ambrogi is a Massachusetts lawyer and journalist who has been covering legal technology and the web for more than 20 years, primarily through his blog LawSites.com. Former editor-in-chief of several legal newspapers, he is a fellow of the College of Law Practice Management and an inaugural Fastcase 50 honoree. He can be reached by email at ambrogi@gmail.com, and you can follow him on Twitter (@BobAmbrogi).

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