Lawrence Solan

• Brooklyn Law School

Corpus linguistics is becoming a respected method of statutory and constitutional interpretation in the United States over the past decade, yet it has also generated a backlash from a group of scholars that engage in empirical work. This essay attempts to demonstrate both the contributions and the risks of using linguistic corpora as a primary tool...

In everyday interactions, we do our best to resolve linguistic vagueness, ambiguity, and other indeterminacies contextually. When these problems arise in the interpretation of authoritative legal texts, by contrast, it is not abundantly clear what context is relevant, or even legitimate. This article discusses approaches that legal analysts take in...

In this paper, we set out to explore conditions in which the use of large linguistic corpora can be optimally employed by judges and others tasked with construing authoritative legal documents. Linguistic corpora, sometimes containing billions of words, are a source of information about the distribution of language usage. Thus, corpora and the tool...

European courts and legal scholars are accustomed to construing codes that have been in place for long periods of time. In the U.S., most laws are recent enough that the meanings of their words have not changed very much over time. This, however, is not true of the Constitution, which was adopted in the late 18th century. There are debates in the U...

How is argumentation used in professional practice? As schools aim to ensure that students are college-and-career ready, classroom practices might be informed by argumentation in the professions. An analysis of evidence-based reasoning in 3 professions—engineering, law, and medicine—offers out-of-school perspectives on the practices and purposes of...

Courts in the U.S. frequently apply a rule of statutory construction that calls for the words in laws to be given their “ordinary meaning.” The rule is based on the presumption that legislatures are most likely to have intended the language to be understood in their ordinary sense and on the value that people subject to such laws will more likely c...

Legal systems are constantly faced with vague or ambiguous laws, and must determine which available meaning best reflects the understanding intended by the enacting legislature. In the U.S., these debates often involve conflict over method: Should the court look to legislative history, to canons of construction, to similar language used in other st...

In this chapter we discuss the interaction between lawyers and expert witnesses in adversarial systems. Focusing largely on the legal systems of Canada and the United States, with some foray into the United Kingdom, we look at the laws that qualify experts and that govern their responsibility to the court. We discuss the presumably complementary, b...

A great deal is written about difficulties in construing legal texts. Much less effort has gone into identifying interpretive problems that result from spoken language. This paper does that, by discussing how our abilities to perceive and understand speech lead to misunderstandings in legal contexts. Specifically, there are numerous battles over wh...

This article addresses a nagging issue in the field of scientific evidence: What should the legal system do when experts developing a statistical approach to forensic identification are making good progress, but are not provably more accurate than experts who make judgments, often convincing judgments, based upon the their analysis of the specific...

If I say that I “consent to your terms,” I can mean that I consent to terms a-n, which you have proposed. But I also can mean that I consent to your terms, whatever they are, even if I don’t know what they are. Philosophers of language sometimes call the first reading “transparent” and the second reading “opaque.” The phenomenon occurs with many ve...

In a series of experimental studies, we asked people to assign appropriate civil and/or criminal liability to individuals who cause harm with various culpable states of mind and kinds of knowledge. The studies are principally aimed at two related issues. First, do people actually separate the various states of mind conceptually? How much knowledge,...

The criteria for appointment of a guardian, and the powers that the guardian will be given depend upon how a particular political entity balances respect for the individual's right to autonomy on the one hand, against society's desire to protect those who cannot manage their own affairs, on the other. In recent decades, the balance has tipped from...

Criminal liability has classically been dependent on intentionally causing harm. However, the reach of federal criminal law has recently expanded to include many strict liability crimes and crimes with less than intentional mens rea requirements. In a series of studies, we investigate laypeople’s intuitions about the appropriateness of criminal and...

In this article, we report on several studies that explore peoples’ preferences for strict liability or negligence in assigning responsibility for accidents. Depending on the situation, a substantial percentage of individuals stand prepared to assign liability to actors who are not negligent. We relate these findings to current debate over whether...

Many crimes are generally performed by using language. Among them are solicitation, conspiracy, perjury, threatening, and bribery. In this chapter, we look at these crimes as acts of speech, and find that they have much in common – and a few interesting differences. For one thing, they involve different acts of speech, ranging from promises to orde...

This publication provides an account of past and current research in the interface between linguistics and law. It outlines the range of legal areas in which linguistics plays an increasing role, and describes the tools and approaches used by linguists and lawyers in this field. Through a combination of overview articles, case studies, and theoreti...

All manner of all scientific discourse is couched in language. This holds for language in the domain of law with a vengeance: all concepts in law are linguistically constituted and expressed. All legally relevant meanings and contexts are transported through the vehicle of language. They are thus created through and in language, and cannot therefor...

Each time a dispute arises over the proper interpretation of a law, it means that the legal system has somehow failed to provide clear guidance as to how people must behave and what rights they have against others who wrong them. This chapter explores what things go wrong linguistically that lead to interpretive problems. This approach is interesti...

Lawyers are given license to suspend what philosophers have called sincerity conditions. We ordinarily take people as being sincere in their speech. They expect us to do so, just as we, when we speak, expect others to take us as being sincere. Lawyers, however, are given license to be insincere. They are trained to be simultaneously truthful and in...

Police often ask people to consent to a search of their person or possessions. Frequently, these "requests" are made indirectly, with questions like, "Does your trunk open?" or "Do you mind if I search?" Although these questions literally ask only about whether the trunk functions, or about the suspect's state of mind, courts routinely use pragmati...

In this Article, we point out that advocates for board diversity in public companies feel pressure to justify it in terms of its contribution to shareholder value. This pressure is not surprising, insofar as the dominant social identity of boards, which itself is partly a creation of the discipline of finance, views shareholder value as the ultimat...

This is chapter 1 of The Language of Statutes: Laws and their Interpretation (University of Chicago Press (2010). The chapter situates debate about statutory interpretation as a battle between those who are concerned that judges, especially common law judges, have too much interpretive discretion, and those who would prefer that judges play a more...

This essay is a response to Jonathan Siegel’s article, The Inexorable Radicalization of Textualism. Professor Siegel expresses concern about the consequences of carrying textualism to its logical extreme. This response argues that it is much easier to espouse the formalist values of textualism in the abstract than it is to apply them routinely to c...

We investigate lay intuitions about the appropriate compensatory and retributive consequences of a wrongdoer putting another in harm's way when harm either does or does not result. Compensation tracked whether the harm actually occurred, though when harm has not yet occurred but might, participants prefer an escrow-like solution in which money will...

The lawyer’s obligations in a litigation are both to the client and to the judicial system. Rules of conduct leave a wide range of possibilities for lawyers to attempt to persuade a judge or jury through insincere statements that do not reach the level of falsehood. This chapter examines the role of the expert in such a system. The lawyer’s interes...

This essay discusses the implications of some important work in experimental philosophy to criminal law and tort law. Joshua Knobe and others have demonstrated experimentally that we attribute intent more to those whose actions lead to bad results than to those whose actions lead to good results. In one version, a middle-management executive boasts...

EU legislation is written in all of the EU’s official languages. Each version is authoritative, and no version is privileged as ‘the original’, at least not as an official matter. The practice derives from the very first Regulation of the Council of the European Economic Community in 1958, which declared Dutch, French, German and Italian as the off...

Psychologists call the propensity to believe that one's views are the normal views even when they are not false consensus bias. In the interpretation of contracts, false consensus bias should be of special concern when a dispute arises over whether an event fits within contractual language. For psychologists have also found that consensus about cat...

This paper reports on a series of studies we conducted concerning people's reactions to the imposition of liability for creating risk in others, absent actual injury. This problem is referred to as loss of chance in the tort literature, and as moral luck in the philosophical literature. When two actors perform similarly bad acts, but only one of th...

EU legislation is written in all of the EU's official languages. Each version is authoritative, and no version is privileged as "the original," at least not as an official matter. The existence of a regime of multilingual legislation appears to create a daunting task for a court that must resolve disputes over a statute's applicability in a particu...

For generations law students have been taught that the law governing the formation of contracts is by and large objective in nature, although it has some subjective elements. It is the appearance of intent that matters most. Yet theories of contract law, whether based upon the rights of the individual as an autonomous actor, the benefits to society...

Tax shelters raise difficult problems of statutory interpretation. In her interesting article, Of Lenity, Chevron, and KPMG, Kristin Hickman explores one of them: the recent tendency of courts to apply the rule of lenity in civil cases, potentially leading to a narrow interpretation of the Code that would undermine efforts to collect the taxes that...

Lawrence Solan is the Don Forchelli Professor of Law and Director of the Center for the Study of Law, Language and Cognition at Brooklyn Law School. He holds a Ph.D. in linguistics from the University of Massachusetts, and a law degree from Harvard Law School. After graduating from law school in 1982, he clerked for Justice Stewart Pollock of the S...

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In an earlier essay, Cognitive Foundations of the Impulse to Blame, (68 Brook. L. Rev. 1003 (2003)), I argued that blaming comes cheaply for people since the elements of the scenarios that most easily trigger blame are commonly used in cognitive processes that have little to do with moral attribution: causation, the recognition of bad outcomes, and...

The past two decades have seen a polarized debate in both the courts and legal academic literature between those who regard themselves as textualists on the one hand, and those who advocate for courts using a broader range of evidence on the other. Gone largely unnoticed in the battles between these camps during the past quarter century is the fact...

Why do so many people voluntarily consent to searches by have the police search their person or vehicle when they know that they are carrying contraband or evidence of illegal activity? Does everyone understand the Miranda warning? How well can people recognize a voice on tape? Can linguistic experts identify who wrote an anonymous threatening lett...

Recent work has taken different approaches in attempting to use linguistics to identify the authors of documents by the style of their writing. Traditionally, linguists have sought to identify similarities and differences in a host of features, including spelling, syntax, word usage and others, and to draw inferences regarding authorship based on a...

For decades, the use of legislative intent in statutory interpretation has been attacked both by conservative and progressive theorists. The more conservative textualists claim that judges should focus not on what members of the legislature had in mind, but rather on what the statute says. Theorists with more liberal political orientations claim th...

This Article explores pernicious ambiguity, an interpretive problem that is not adequately acknowledged by the legal system. Pernicious ambiguity occurs when the various actors involved in a dispute all believe a text to be clear, but assign different meanings to it. Depending upon how the legal system handles this situation, a case with pernicious...

Many of the problems that people have identifying speakers solely by their voices are similar to those that people have as eyewitnesses. The amount of exposure, the nature of the identification process, and the number of exposures all matter in determining how likely a witness is to make a correct identification. Yet while the reliability of eyewit...

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...

Eskridge's theory of dynamic statutory interpretation focuses largely on regulatory statutes and civil cases, but not on criminal statutes. This is not surprising. The interpretation of criminal statutes is constrained by special concerns of fair notice and separation of powers that would appear to make lenity a more appropriate approach than dynam...

It is almost impossible to think about the scandal that led to President Clinton’s 1999 impeachment trial without recalling his answer to a question under oath before a federal grand jury with these words: ‘It depends upon what the meaning of the word “is” is.’ (Grand Jury Transcript, p. 510).2 Clinton’s political enemies were not alone in adopting...

This article presents empirical evidence of the ways people compare judgments of liability with judgments of causation and contribution. Specifically, the article reports the results of experiments designed to show whether people regard causation and enablement as necessary elements of liability.

We report a study that tests children’s knowledge of an effect of Principle C of the binding theory: In the adult grammar of English and French, coreference between a main clause object pronoun and a non-pronominal subject of a sentence-final temporal clause is permitted, whereas coreference between a subject pronoun and the subject of a temporal c...

We report a study that tests children's knowledge of an effect of Principle C of the binding theory: in the adult grammar of English and French, coreference between a main clause object pronoun and a non-pronominal subject of a sentence-final temporal clause is permitted, whereas coreference between a subject pronoun and the subject of a temporal c...

This article examines the phenomenon of linguists testifying as experts on meaning in legal disputes over the interpretation of statutes, contracts, transcripts of tape-recorded conversations, and other important legal texts before courts in the USA. It concludes that there is an important role for linguists in such cases -- the role of the tour gu...

First, I will discuss certain limits in the potential relevance of linguistic theory to legal analysis. In particular, even on its own terms, linguistics ordinarily will not be a source of authority about how legal documents should be interpreted. I will then discuss two areas in which I believe that linguistic analysis may be of some use to courts...

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Since many legal disputes are battles over the meaning of a statute, contract, testimony, or the Constitution, judges must interpret language in order to decide why one proposed meaning overrides another. And in making their decisions about meaning appear authoritative and fair, judges often write about the nature of linguistic interpretation. In t...

In recent writings and lectures, Chomsky has emphasized a shift in focus occurring in linguistic theory during the 1970s and’80s. While earlier models, such as that set forth in Chomsky (1965), directed their attention at positing and characterizing rule systems, in recent years, linguistic theory has focused more on conditions on representation.

The theory of markedness is used to account for some very different sets of facts. For example, Chomsky (1981a) defines marked structures as those not predicted by core grammar. Assuming the current theory of core grammar to he correct, those constructions that the theory predicts are ungrammatical, but which in fact exist, are called marked. The p...

1. An Approach to Language Acquisition.- 1.1. Language Acquisition Research and the Innateness Hypothesis.- 1.2. The Role of Experience.- 1.3. Hypothesis Formation and the Evaluation Metric.- 1.4. Implications for Language Acquisition Research.- Notes.- 2. Structural Restrictions on Pronominal Reference.- 2.1. The Domain of This Study.- 2.2. Struct...

The last two chapters have been concerned with the motivation for, and the description and acquisition of, structural restrictions on anaphora. While I have argued that a close look at these constraints can provide us with interesting insights into universal grammar and the language acquisition process, it is clear that the interpretation of pronou...

Because the language acquisition process involves the child’s progressing from some initial State, So, to some steady State, Sn, language acquisition research must begin with some characterization of these states with respect to the phenomena being investigated. In this chapter, I will explore in some detail the grammar of pronominal reference, tak...

The business of linguistic theory is to provide an empirically adequate description of the adult language, with the stipulation that it is learnable, given a theory of universal grammar and some account of the ways in which children take advantage of linguistic input. Although the goal of constructing learnable grammars has led linguists in somewha...

While it may not be surprising that adults take advantage of many types of information in determining the most likely antecedent for a pronoun, the trouble that children have mastering this system reflects some interesting properties of the language acquisition process. This chapter will discuss some of these problems, as reflected in the results o...

This essay is about the relationship between experience and language development. One of the goals of linguistic theory is to posit a set of innate restrictions on the possible hypotheses about the structure of his language that a child will consider. These restrictions constitute universal grammar. The claim of linguistic theory is that children w...

Contrastive stress signals the hearer that the speaker thinks that certain information is not shared by the speaker and hearer. In the case of stressed pronouns the speaker is signalling the inappropriateness of applying normal interpretive strategies. Children were presented with sentences such as John hit Bill and then he hit Sam. Surprisingly, i...

If the basic operations hypothesis (EJ 184 227) is interpreted as a general principle governing acquisition of all movement rules, it may obscure the fact that children distinguish between unbounded and local rules. Error patterns support this distinction, lending credence to theories with separate status for the two rule types. (Author/RD)

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Junk science has no place in the legal system. But when a scientist says, "I'm not sure, but the data are suggestive," the scientist's words are not necessarily a tell-tale sign of junk science. On the contrary, they may be a sign that real science is occurring. The Supreme Court's Daubert trilogy appears to have allowed the continuation of junk sc...

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...