I noted with interest this item by Howard Bashman about a program at the 2019 Appellate Judges Education Institute (AJEI) Summit entitled “Thinking Like a Linguist.”
As Howard describes it, “the program offered an introduction to the field of linguistics and its past and potential future uses in resolving legal disputes.” But it was actually about a narrower topic—corpus linguistics, in other words using samples of “real world” text to help deduce meaning. The speakers were Neal Goldfarb, Stephen Mouritsen, and Jill Anderson. I’ve benefited from exchanges with Neal and Stephen.
I’m acutely aware of the value of corpus linguistics. My 2019 article in The Business Lawyer, Interpreting and Drafting Efforts Provisions: From Unreason to Reason (here), relies in part on corpus linguistics in refuting definitively, for anyone who’s paying attention, the notion that it’s helpful to assume that different efforts provisions impose different levels of onerousness.
But that was my first and so far only foray into corpus linguistics. That’s because corpus linguistics is of use when you’re faced with lexical ambiguity, which occurs when a word or phrase has alternative possible meanings, and when you’re dealing with something approaching everyday English. That’s why corpus linguistics has been used to explore the meaning of, for example, carries a firearm. Given the limited and stylized nature of contract language, corpus linguistics has a limited role to play.
So “thinking like a linguist” means something different to me. Linguistics has been vital in alerting me to nuances of meaning, nuances that can have unexpected implications in contracts, where a lot is at stake.
For example, see this 2015 post on why I use hereby in language of performance. That post contains a bang-on quotation from the essential linguistics text, The Cambridge Grammar of the English Language (CGEL), explaining the implications of omitting hereby in this context.
But more specifically, thinking like a linguist has for me in effect meant attempting to think like … Rodney Huddleston. I was introduced to Rodney, now retired, by his CGEL co-author, Geoff Pullum. For reasons best know to Rodney, he felt it worth his while to help me out. His fingerprints are all over two chapters, chapter 11 (Ambiguity of the Part Versus the Whole), which deals with alternative meanings that arise with use of and, or, each, any, and all, and plural nouns, and chapter 12 (Syntactic Ambiguity). Both are highly technical and offer unmatched detail. To get a sense of that, see my 2015 article in Scribes Journal of Legal Writing on the misguided notion that a comma at the front of a closing modifier means the modifier modifies all elements that precede it. I could not have written that article without Rodney’s help.
In 2016 I had the great privilege of visiting Rodney and his wife Vivienne in Noosa, Australia, a visit I wrote about in this post. Since then I’ve left Rodney in peace, but I continue to benefit from the heightened awareness that came from having him help me. I’ll never be anything other than a duffer linguist, but I have enough of an ear for language to know when something is amiss, and I now know where to look for help. In recent months I’ve had plenty of occasion to make use of this side of things in critiquing court decisions that don’t make sense. See for example this post from last month.
So that’s what “thinking like a linguist” means to me. And being an informed consumer of contract language necessarily entails a bit of thinking like a linguist: if you’re not aware of the potential for ambiguity that lurks in contract prose, you risk having ambiguity visited upon you.