Meaning Of Legal Text Research Articles

Two Types of Empirical Textualism

Modern textualist and originalist theories increasingly center interpretation around the “ordinary” or “public” meaning of legal texts. This approach is premised on the promotion of values like publicity, fair notice, and democratic legitimacy. As such, ordinary meaning is typically understood as a question about how members of the general public understand the text — an empirical question with an “objective” answer. This Essay explores the role of empirical methods, particularly experimental survey methods, in these ordinary meaning inquiries. The Essay expresses cautious optimism about new insight that empirical methods can bring, but it also warns against assuming that these methods will deliver uncontroversial, objective solutions in legal interpretation. As a concrete illustration, the Essay analyzes the main statutory question presented in Bostock v. Clayton County (2020). Both Justice Gorsuch’s majority opinion and the dissents by Justices Alito and Kavanaugh offer avowedly textualist analyses of Title VII’s “ordinary meaning,” yet their reasoning and conclusions diverge. To help explain these differences, the Essay proposes a distinction between two types of empirical textualism, which we call the “ordinary criteria” and “legal criteria” versions. The former conceptualizes ordinary meaning as closely connected to empirical facts about how ordinary people understand statutory language; in effect, it equates ordinary meaning with ordinary understanding. The latter conceptualizes ordinary meaning differently, combining the common understanding of statutory terms with both their previously-established legal meanings and their legal entailments. Bostock exemplifies the difference between these approaches, with Justices Alito and Kavanaugh relying on the former and Justice Gorsuch on the latter. The Essay also presents a new experimental study of the key linguistic dispute in Bostock — public judgments about discrimination “because of” sex — that illustrates differences between these two approaches to empirical textualism.

Interpretation of Law and Judges Communities

The principle of omnia sunt interpretanda refers to the derivational conception and derivational theory of interpretation. The principle appears in disputes concerning the role of a judge in the process of interpretation, and this has produced an effect that Polish theory of law is currently getting closer to the conceptions presented in the American debate on activism and textualism. In the practice of jurisdiction, the principle of omnia sunt interpretanda is mostly invoked outside theoretical context. It becomes a manifestation of a new dimension of judicial independence, namely an independent authority over the meaning of legal text. In the following paper the legal cultures and legal theories involved in the dispute are being disclosed in order to put in question the possibility of achieving a clear result of interpretation against a background of a crisis of the relations between law and law-making state, which manifests itself in the peculiar process of legal institutions becoming autonomous in relation to state institutions. In this context, the aforementioned principle constitutes the manifestation of the way in which courts come up with a new definition of the role of the third (sui generic) power. The certain organizational requirements placed upon the courts (especially the SAC and provincial administrative courts) are being scrutinized in order to find out in which mode it is possible to at least reduce the degree of inconsistency of the results of interpretation. Here, the attempt to organize a community of judges for the activities of legal interpretation undertaken by them plays a crucial role.

The Linguist on the Witness Stand: Forensic Linguistics in American Courts

It is becoming increasingly common for linguists to testify as expert witnesses in both civil and criminal trials. Often linguistic expertise is clearly helpful to the judge or jury. Based on published judicial opinions, from which we draw our data, it appears that courts have allowed linguists to testify on such issues as the probable origin of a speaker, the comprehensibility of a text, whether a particular defendant understood the Miranda warning, and the phonetic similarity of two competing trademarks. In other areas the admissibility of linguistic testimony has been more controversial, including author and speaker identification, discourse analysis, the meaning of legal texts, and the comprehensibility of jury instructions. Reasons for judicial reluctance to admit linguistic expertise include concerns that it is not sufficiently reliable, the belief that issues like the meaning of a text can just as well be decided by a jury, and sometimes even institutional and political considerations. Despite such reservations, courts generally recognize that there is a place for linguistic expertise in appropriate cases.

Law and Literature at Century's End

Have you noticed how intellectually diverse Law and Literature has become in recent years?' At one time Law and Literature in American legal studies was a marginal subject taught at only a few law schools. These Law and Literature courses, following the lead of Dean Wigmore, explored the way law was implicated in the stories told in the great literary classics of Dickens, Kafka, and Melville. The perspective of these courses attempted to show how the stories in the classics of Western literature might offer lawyers and judges important lessons about the nature of law lessons which are missing in the official reported stories of the cases. This understanding of Law and Literature the law-in-literature perspective was a dominant understanding shaping the American Law and literature movement in its early stages of development. But much has changed since the first courses popped up in the legal curriculum. Beginning in the late 1970s and throughout the 1980s, a diverse new breed of Law and Literature scholarship appeared on the legal scene which has altered the landscape of the movement. Law and Literature practitioners in America were no longer just reading and studying the Great classics of Western literature; they were reading and studying law as if it were a special of literature to be interpreted like any story. As it turned out, Dickens, Kafka and Melville were being edged-out by authors like Derrida, Foucault, Heidegger and Wittgenstein as Law and Literature scholars explored the meaning of law's language as a cultural and literary artifact. If law were to be regarded as a unique genre of literature, then new critical techniques and methods of translation would be needed for focusing the critical eye of Law and Literature scholars on the meaning of legal texts, languages, and institutional practices. It should not be surprising then that Law and Literature scholars began looking beyond the Great books of Western literature to the critical texts of literary theory, structuralism, post-structuralism, deconstuctionism and the like to aid them in their literary translations of legal texts.