The Michigan Supreme Court became the first court to use corpus linguistics, specifically the Corpus of Contemporary American English (COCA), to aid its decision. Corpus linguistics sounds complicated, but in plain terms the COCA is a search engine that searches a database of news articles, books, academic journals, and other written sources. Judges—and, in turn, lawyers writing for judges—can use the database to determine how often certain words are used in certain contexts.
For example, corpus linguistics debuted in judicial opinions when Justice Lee of the Utah Supreme Court used the COCA to determine the meaning of “discharge" in his concurrence in State v. Rasabout. There, a gang member fired twelve shots in a drive-by shooting. He was charged with twelve counts of unlawful discharge of a firearm. The defense argued that the entire shooting should count as one “discharge of a firearm” as opposed to twelve individual discharges.
Justice Lee used the COCA to look at all the times “discharge” appeared within five words of either “firearm,” “firearms,” “gun,” or “weapon.” He reviewed the results of the search and noted that the majority used discharge in reference to individual shots. In fact, he only found one instance of “discharge” being used to describe multiple shots. And this was ultimately how he decided the case. Dictionaries can only take us so far, and Justice Lee points this out in his concurrence. There is a link to the opinion at the bottom of the page. It is highly recommended reading for anyone interested in this type of research.
The Michigan Supreme Court recently used the COCA in determining whether the word “information” only includes truthful information. A case brief for the case can be found here. Interestingly, both the majority and the dissent used the COCA and came out with different results. Although some may argue that this shows the COCA is not an effective tool, it is similar to any canon of construction; it can be used in different ways. Just because a method may not give you a clear answer every time is not a sufficient reason to abandon it.
But it is true that the COCA can be slightly confusing to use. There are multiple types of searches. I would recommend that attorneys use either the simple “List” search or “collocation” search. The majority in Harris used a collocation search of “information” and multiple adjectives. It found that “accurate” was the most common adjective that dealt with truth or falsity collocated with “information.” “False” and “inaccurate” were also commonly collocated with “information.” The majority determined that because these modifiers were so common, “information” is not exclusively truthful.
On the other side, Justice Markman’s dissent used the simple “list” function. He found that “information” appeared 168,187 times and was only modified by “truthful” 28 times. In other words, 99.44% of the time, “information” was unmodified. This told him that information is commonly understood to be only truthful information.
As a lawyer, you do not need to determine which side you agree with, but you should certainly add the COCA to your tools of textual interpretation instead of a dictionary. It is interesting to see the Michigan Supreme Court continue the evolution started by Justice Lee.
Link to the COCA.
Justice Lee’s concurrence starts on page 23 here.