On July 10, 2019, the Sixth Circuit issued an opinion in Wilson v. Safelite Group, Inc., No. 18-3408. The case deals with the issue of whether an employee benefit plan is covered by ERISA and whether certain state law claims by the former CEO of the Defendant are preempted. But unless you practice in this area, you can actually skip the first 12 pages of the opinion. For those non-ERISA practitioners, rest assured that I do not have any interest in ERISA today. Much like an online article where the interesting information may be in the comments, in this case the interesting issues are in a set of dueling concurrences.
The first concurrence is written by Judge Thapar, appointed to the Sixth Circuit in 2017. If the name sounds familiar, he was on the list of “Potential Supreme Court Justice Picks” that the then President-elect Donald Trump released in 2016. Judge Thapar takes the concurrence as an opportunity to stump on behalf of “corpus linguistics” as a “tool” that Courts should consider adding to their “belt.” As Thapar explains it, he is encouraging judges throughout the country to use searchable databases to find specific examples of how a word is used at a given time. He provides some examples about how the U.S. Supreme Court could have used such a database to define “use” of a firearm in Smith v. United States, 508 U.S. 223 (1993) or “carrying” a firearm in Muscarello v. United States, 524 U.S. 125 (1998). Judge Thapar then uses the corpus linguistics tool to search the Corpus of Historical American English during the 1960s and 1970s to determine whether the phrase “results in” was ever used in the database to mean “requires.” After reviewing a few hundred results (thankfully, he only quotes a few in the opinion), Judge Thapar concludes that the Court’s interpretation of the terms of ERISA are consistent with this technique.
Judge Stranch, a more senior judge on the Sixth Circuit with a decade of experience on that bench, disagrees with Judge Thapar and takes the opportunity in her concurrence to question the technique. Her concerns are largely practical. Why worry in an ERISA case about how the term “results in” was “used in a book about farm animal management in 1976, or in an article from Sports Illustrated about New York’s cool spring weather in 1964?” She suggests that the use of corpus linguistics is a task better left to “trained lexicographers” and judges would be better served to stick with dictionaries. She makes clear that she is not excluding the use of corpus linguistics categorically, but that it would be the unusual case in which it would be useful.
You can decide who has the better of the debate. But the technique is out there, and the attention to it will only grow after this opinion. A Lexis search indicates this is only the thirteenth court opinion to use the term “corpus linguistics”—and the first at the federal level. But this concept has started to appear in amicus curiae briefs to the U.S. Supreme Court and the Fourth Circuit (brief here). If the judges are talking about this technique, you may want to make sure you understand what it is.
You can try your hand at the technique here; I discovered the term “corpus linguistics” only appears twelve times in the Corpus of Contemporary American English.