Seminar on Original Meaning:
Linguistic Analysis of Legal Texts
Georgia State University College of Law

Clark D.Cunningham
W. Lee Burge Chair in Law & Ethics
Spring Semester 2021: Wed, 4:10 pm - 5:50 pm

Fall Semester 2021: Wed, 4:10 pm - 5:50 pm
Spring Semester 2022: not offered
This course is taught entirely online. Students should be prepared to be available for class activities at the scheduled class time.

Web Site Address: http://www.clarkcunningham.org/JP/index.htm

Syllabus (Spring 2021- Weeks 1-4)

Course Number: Law 7293 

3 credits
This course satisfies the upper level writing requirement
Prerequisites: Constitutional Law I and II, Criminal Procedure: Investigations, or permission of the instructor. Enrollment may be limited.

This course is administered through a website on The West Educational Network (TWEN.) No textbook to purchase at bookstore. All required readings are linked to the on-line syllabus posted on TWEN.

An application to waive one or more of the required prerequisites has been created for this course. Completing this form allows students to obtain pre-registration instructor permission to enroll.
.
Application to waive prerequisite requirement: https://www.surveymonkey.com/r/SOM-21F

Course Description

Interpreting a statute or constitutional provision may include investigation into evidence of the original meaning of the text as understood at the time of enactment. Recent developments in computational linguistics provide lawyers, judges and legal scholars powerful new, empirical methods for investigating original meaning. Students will learn how to look for and evaluate evidence of original meaning by using linguistic analysis of large datasets of texts from the period of enactment supplemented by historical research. The course will be of particular value to students interested in a judicial clerkship after graduation.

The course grade will be based on:
Class participation
Paper: First Draft 
Paper: Final Draft 
Presentation of Research Findings

The grade for either the first draft or final draft will be reduced by the equivalent of a full letter grade (e.g. A to B, D to F) if submitted late without good cause. Further grade reduction is possible depending on how late the paper is submitted. A failing grade for the paper may be entered if submission is very late without good cause.

There will not be a final exam.



Required Materials
All required readings will be posted on the TWEN course web site, linked to the syllabus. There is no text to purchase at the bookstore.

Contact Information
Clark D. Cunningham
Office 210 
Phone: (404) 413-9168
Fax: (404) 413-9225
Email: cdcunningham@gsu.edu  
Home page: www.ClarkCunningham.org  
Senior Administrative Specialist:
Karen Butler
Office 202
Phone: (404) 413-9082
Email:
kpbutler@gsu.edu  

In prior years this course had the title: Seminar on Judicial Power. Four students who took the course in 2018 and 2019 subsequently co-authored, after graduation, law review articles that had their origin in the students' seminar papers:

"Questions Involving National Peace and Harmony" or "Injured Plaintiff Litigation"? The Original Meaning of "Cases" in Article III of the Constitution , Haoshan Ren, Margaret Wood, Clark D. Cunningham, Noor Abbady, Ute Römer, Heather Kuhn, and Jesse Egbert, 36 Ga. St. L. Rev. 535 (2020)
Effective but Limited: A Corpus Linguistic Analysis of the Original Public Meaning of Executive Power, Eleanor Miller and Heather Obelgoner, 36 Ga. St. U. L. Rev. 607 (2020)
"We the Citizens?": A Corpus Linguistic Inquiry into the Use of "People" and "Citizens" in the Founding Era, Abigail Stout, Diana Coetzee, and Ute Römer, 36 Ga. St. U. L. Rev. 665 (2020)

The inguistic research reported in "Questions Involving National Peace and Harmony" or "Injured Plaintiff Litigation"? The Original Meaning of "Cases" in Article III of the Constitution was submitted, at the request of the court, in two amicus briefs in Wright v. Spaulding, 939 F.3d 695 (6th Cir. 2019), and acknowledged in the court's decision, id. at 700 n.1.

Professor Cunningham collaborated with linguistics professor Jesse Egbert on amicus briefs filed in two cases brought against President Donald Trump alleging that his receipt of funds from foreign governments through continued ownership of the Trump International Hotel in Washington violates the prohibition on accepting emoluments clause of the Constitution. In both cases, the courts of appeal ruled against President Trump; in one case, the amicus brief was cited with approval, In re Trump, 958 F.3d 274, 286 (4th Cir. en banc). Both cases were subquently dismissed as moot by the Supreme Court following the completion of President Trump's term in office.

Articles about the amicus brief cited by the 4th Circuit:
Law Journal Editorial Board, On Language, Lawyers and Judges Don't Have All the Answers (March 22, 2019)
Aaron Blake, A big Trump case hinges on the definition of ‘emoluments.’ A new study has bad news for him (Washington Post Jan 29, 2019)
Amelia Thomson-DeVeaux, How Two Arcane Clauses In The Constitution Could Expose Trump’s Businesses  (FiveThirtyEight    March 18, 2019)
Elie Mystal, Emoluments Amicus Fitting To Turn Originalists Into Hypocrites, Again (Above the Law  Jan 29, 2019)

 

Articles and conference presentations about this course:

"Teaching Lawyers about using corpus lingustics"(ppt) (Slides as pdf) (Presented September 21, 2018, 14th American Association for Corpus Linguistics Conference)

Big Data Meets the Constitution in New Originalism Project
Georgia appellate judges evaluate cutting-edge inquiries
into what the Constitution's framers meant from
Georgia State University law students.
Meredith Hobbs, Daily Report, May 1, 2018

"This is revolutionary,” said Georgia Appeals Court Chief Judge Stephen Dillard. “It’s like Westlaw for originalism.”


Heather Eleanor Miller  

Students Present New Insights on Original Meaning
of Constitution to Judges using “Big Data”
of Corpus Linguistics

GSU College of Law News, May 21, 2018

“I thought the students were all exceptionally well prepared, the writing was very strong, the research was very strong, and it’s grappling with some of the most difficult questions that courts have to deal with today.” Justice Nels Peterson, Supreme Court of  Georgia

 

Research Projects: Spring 2021

Presented Wednesday, April 14, 2021
Via Zoom
4:10pm - 6:10 pm
Webcast Link - All Five Presentations (2 hours)

4:10 Session:
Steve C. Jones, District Judge, United States District Court, Northern District of Georgia
Catherine D. Perry, former Chief Judge, United States District Court, Eastern District of Missouri
Ute Römer, Associate Professor, Department of Applied Linguistics and ESL, Georgia State University 

Presentations:

4:10: Ellen Messer, A Corpus Linguistics Analysis of “Unreasonable” at the Time of the Founding -- collaborating with Margaret Wood, PhD student in Applied Linguistics, Northern Arizona University
4:30: Gabriele Setley, A Plain-meaning Tool Overlooked: Discerning the Meaning of § 362(k) -- collaborating with Amanda Black and Maria Kostromitina, PhD students in Applied Linguistics, Northern Arizona University 

5:00 Session 
Audrey Fleissig, District Judge, United States District Court, Eastern District of Missouri 
G. Richard Bevan, Chief Justice, Idaho Supreme Court 
Tammy Gales, Associate Professor of Comparative Literature, Languages, and Linguistics, Hofstra University

Presentations: 
5:00: Mary Kay Bacallao, Is an Unborn Child a Person Within the Original Meaning of the 1868 Georgia Constitution and the 1868 Fourteenth Amendment of The U.S Constitution?  -- – assisted by Haoshan Ren, PhD student in Applied Linguistics, Georgia State University 
5:20: Clark Cunningham presenting for Bradford Poston, General Searches and Electronic Evidence: The Original Meaning of “Executed” In Georgia’s Time Limited Search Warrant Statute --- collaborating with Amanda Black and Maria Kostromitina, PhD students in Applied Linguistics, Northern Arizona University

5:40: Megan Wells, When Is a Warrant Executed Based on the Meaning of “Search” In Regard to Papers?  -- collaborating with Amanda Black and Maria Kostromitina, PhD students in Applied Linguistics, Northern Arizona University

Presented Wednesday, April 21
Webcast Link - All Five Presentations (2 hours0

4:10

Amy Totenberg, District Judge, United States District Court, Northern District of Georgia 
Jeffrey S. Sutton, Circuit Judge, United States Court of Appeals for the Sixth Circuit     
Lawrence Solan, Don Forchelli Professor of Law and Director, Center for the Study of Law, Language and Cognition, Brooklyn Law School 

Presentations (assisted by Haoshan Ren, PhD student in Applied Linguistics, Georgia State University) 
4:10: Christine Williams, Interpreting the Second Amendment: The Right to Keep and Bear Versus the Right to Carry 
4:30: Robert Brawner, “Keep Arms”—A Corpus Based Analysis of the Second Amendment’s Original Meaning 
  
5:00 Session 
David Nahmias, Presiding Justice, Supreme Court of Georgia 
Stephen Louis A. Dillard, Presiding Judge, Court of Appeals of Georgia 
Edward Finegan, Professor of Linguistics and Law, Emeritus, University of Southern California 

Presentations (assisted by Haoshan Ren, PhD student in Applied Linguistics, Georgia State University) 
5:00: Abigail Coker, Corpus Linguistics and The Ordinary Meaning of the Appointments Clause’s “Inferior Officers”
5:20: Alex Garrett, The Original Meaning of the Guarantee Clause 
5:40: Christopher Bishop, The Privileges or Immunities Clause: A Corpus Linguistic Analysis of Original Public Meaning 




Research Projects Presented Wednesday, April 11, 2018
Ceremonial Courtroom

All presentations videorecorded: webcast links below

Judicial Panel 1:  3:15pm – 4:15pm
Justice Nels S.D. Peterson, Supreme Court of Georgia and Presiding Judge Sara L. Doyle, Georgia Court of Appeals

Professor Clark D. Cunningham: Introduction to Corpus Linguistics (video 9:40 minutes)

Pearson Cunningham & William Lasker: 1st Amendment, “Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for redress of grievances.” (video 26:43 minutes)

When the colonial governments were formed, the right to petition was protected by many colonial charters; this right was later established in state constitutions. Each of these petition clauses protected the right to petition the legislature, as did proposed amendments submitted by states during the ratification process. Madison’s proposed draft of what became the First Amendment likewise guaranteed the right to petition the legislature; however, during deliberations in the First Congress, Government was substituted for legislature. Was the original meaning of “Government” in the First Amendment all three branches of government, including the judiciary? After studying the historical context of the right to petition, and the drafting history of the First Amendment, we applied a textual analysis using corpus linguistic methods. We found that petition is an ambiguous term as it appears in the Petition Clause. Our modern sense of the term incorporates a more collective process sense (e.g., we received 300,000 signatures on our petition and sent it to the committee). But, petition also connotes a lawsuit (in both legal and ordinary dictionaries). Our linguistic analysis revealed that “petition” has undergone linguistic drift. While recently it is more commonly interpreted as the collective process sense, in contrast, during the founding era, “court” is the most common noun associated with the verb form of petition (e.g., he petitioned the court). Finally, we turned to “redress” and “grievances” and found that both terms do occur in the context of petitions filed with courts.

Eleanor Miller & Heather Obelgoner: Article II, Sec. 1, “executive power” (video 26:06 minutes)

This paper uses both linguistic and historical analysis in an effort to discern the original public meaning of the phrase “executive power” in Article II of the United States Constitution. Part I engages in a linguistic analysis of the phrase “executive power,” drawing primarily on corpus linguistic methodology surrounding founding era usage of the phrase. Part II analyzes the history of Article II, with particular attention to the public discourse concerning the scope and reach of the king’s powers. Part III fuses these two areas of analysis and propose a synthesized original meaning of the phrase “executive power.” Finally Part IV considers the Supreme Court cases of Myers v. United States and Steel Seizure, seminal cases in executive power jurisprudence, as well as the public discourse surrounding those cases at the time of their decision.

 

Judicial Panel 2:  4:30pm – 5:30pm
Justice Keith R. Blackwell, Supreme Court of Georgia
Chief Judge Stephen Louis A. Dillard, Georgia Court of Appeals and Judge Carla Wong McMillian
, Georgia Court of Appeals

Professor Clark D. Cunningham: Introduction to Corpus Linguistics (longer version of Introduction to Judicial Panel 1) (video 17:56 minutes)

Isaac Godfrey: 8th Amendment, “excessive bail” (video 27:03)
            Every year people accused of violating state laws or city ordinances are kept in jail while they await trial because of their inability to pay their bail. The English Bill of Rights was enacted in 1689 to address many of the abuses including King-appointed judges demanding excessive bail solely to keep the King’s political enemies in jail to punish them pre-trial. For bailable offenses, the English Bill of Rights required judges to set a sufficient bail after considering the importance of a person’s freedom and the circumstances of his or her case. It is from this that the Excessive Bail Clause of the Eighth Amendment finds its genesis. The Corpus of Founding Era American English is a collection of nearly two-thirds of all early American writings from 1760-1799. By analyzing the use of “excessive bail” and other related terms from this time period, we are better able to understand the original meaning of the Excessive Bail Clause. The appropriate standard for setting a sufficient bail is one focused on the reasonableness of the bail and not the amount. A sufficient bail is one that is no more than is necessary to address the government’s concern in setting the conditions of release, and this should be arrived at in a fair and sensible way.

Anna Celia Howard & Aaron Smothers: 8th Amendment, “cruel and unusual punishments” (video 18:24 minutes)
The purpose of this paper is to explore the original public meaning of the Cruel and Unusual Punishments Clause. Looking first to well-known originalists Justice Antonin Scalia and Professor John Stinneford, we discovered that while they both used original British and American documents to support their arguments they reached different conclusions about whether the original meaning of the clause could apply to punishments that were greatly disproportional to the crime committed. We then examined the origins of the Clause in events taking place in 17th Century England which gave rise to this language in the 1689 English Bill of Rights: “excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.” After our historical review, we took the words of the Clause, particularly focusing on “cruel,” and inserted them into multiple databases to conduct a linguistics analysis of the Clause. A thorough look into the digital edition of The Documentary History of the Ratification of the Constitution did not reveal any use of the word “proportionality” by the Framers; the concept of proportionality seemed to arise when it came to voter representation and numerical quotas. “Excessive” appeared somewhat more often, and while its use suggested a meaning synonymous with “unjustly disproportionate,” it was rarely used in the context of punishments. Finally, “cruel” provided a somewhat unexpected twist. Unlike any other word in the Cruel and Unusual Punishments Clause, it was often accompanied by another adjective.    Additionally, “cruel” was often used to describe a measure as “tyrannical” or “oppressive.”