Article  |  Forum | 2021-2022

Technologically Improving Textualism

by Erik S. Knutsen, and Jeffrey W. Stempel

The textualist approach to construing statutes, regulations, contracts, and other documents remains dominant but has drawbacks, most significantly its tendency to disregard probative evidence of textual meaning in favor of isolated judicial impressions and dictionary definitions. Although a broader, contextual, “integrative” approach to interpretation is preferable, the hegemony of textualism, even extreme textualism, is unlikely to recede soon.

Textualism can be substantially improved, however, through effective use of a form of big data—the corpus linguistics approach to discerning word meaning. By enlarging the universe of sources about how words are actually used, corpus linguistics represents a significant improvement over imperial judicial pronouncements about word meaning along with episodic and inconsistent use of dictionary definitions for deciding cases. If deployed as tool of textualism rather than formulaic use of a bigger dictionary, corpus linguistics analysis can, at a minimum, serve as a useful supplement to traditional textualist tools.

6 Nev. L.J. Forum 10 (2022).