I've long been interested in this subject, and was particularly pleased to have Justice Thomas Lee of the Utah Supreme Court and Stephen Mouritsen guest-blogging in 2017 about their groundbreaking work on the subject. The subject came up in yesterday's argument with regard to Prof. James Phillips' and Prof. Jesse Egbert's forthcoming article, A Corpus Linguistic Analysis of 'Foreign Tribunal', so I'm very glad to be able to pass along this item from Prof. Phillips:
Yesterday in oral argument in ZF Automotive US, Inc. v. Luxshare, LTD, the Supreme Court discussed a paper we recently wrote. In that paper we performed corpus linguistic analysis to see how the term "foreign tribunal" was used around the time it was inserted into the statutory provision at issue in the case. And a couple of the justices expressed uncertainty about relying on our findings.
Chief Justice Roberts conceded, "I don't quite know what to make of that. That's … something new. I mean, have we relied on that source before?" In response, counsel answered that the Court had engaged in this type of methodology in a case called Muscarello, where the majority opinion surveyed the use of the verb "carry" in New York Times articles. To which the majority the Chief Justice asked, "[H]ave I ever done that before?"
Counsel replied that the Chief Justice's opinion in AT&T likewise used this type of methodology. Justice Barrett then stated that "the Court has never used the Corpus Linguistics database before." She noted that two lower courts have—the Sixth Circuit and the Utah Supreme Court—but repeated that "this Court has not." And she described that what the Court did in Muscarello and the Chief Justice's opinion in AT&T were both "a more informal survey."
We have several responses to this colloquy (and we note petitioners' counsel did a good job describing and defending corpus linguistics).
