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When judges, skilled and sophisticated users of the English language, come to opposing conclusions about the “plain” or “ordinary” meaning of a phrase, how can such a conflict be resolved in an objective way? Traditionally courts have resorted to citing dictionary definitions, but in recent years an alternative approach has been gaining attention and respect: the use of corpus linguistics. The supreme courts of Michigan, Idaho, Utah, Vermont have used made use of corpus-based research in their decisions as has the U.S. Court of Appeals for the Third Circuit. Both the Sixth Circuit and the Ninth Circuit have requested that parties submit briefs using corpus-based research. More than 20 law review articles have been published in the past five years discussing the application of corpus linguistics to legal interpretation.

The case of Fischer v. United States, now pending before the U.S. Supreme Court, offers a clear example of the need for an objective, empirically based method for determining the “ordinary meaning” of a statute. The outcome of the Fischer case will not only potentially affect hundreds of persons indicted for their alleged direct involvement in the January 6 attack on the U.S. Capitol, but also former president Donald Trump, whose four-count indictment in a case pending in the U.S. District Court for the District of Columbia includes two counts based on the statute at issue in Fischer. The four judges who have already written opinions in the Fischer case all agree on the legal standard to be applied: “words [in a statute] generally should be interpreted as taking their ordinary, contemporary, common meaning at the time Congress enacted the statute.” However these four judges come to three different, inconsistent conclusions about what that ordinary meaning is.

The authors – a law professor and a linguistics professor – report in this paper the results of using linguistic analysis to investigate what the ordinary meaning of the contested statutory provision was at the time of enactment using the empirical methods of corpus linguistics. They are also filing a neutral amicus brief – in support of neither party – in the Supreme Court in the Fischer case reporting the results of the research described in this paper.

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