LAMENT: AGAINST VIVISECTIONAL JURISPRUDENCE
The "new textualist" approach to legal interpretation, most closely identified with the late Justice Scalia, argues that the meaning of a legal text is the ordinary meaning attributed to the words by an average competent speaker at the time of their enactment as a statute. Under this view, textual meaning is an empirical fact established by how language was actually used at a particular point in history. But what manner of investigation is appropriate to uncover this empirical reality? Too often, judges appear to draw on their vague intuitions about ordinary meaning, usually under the cover of citing to malleable and contradictory dictionary definitions. This poses a serious problem because a primary justification for new textualist methods is the ability to discern legal meaning in an objective manner that rises above a particular judge's subjective desires. Some legal theorists have recently turned to corpus analysis, claiming that this tool developed by professional linguists provides the empirical methodology capable of identifying the ordinary meaning of words used in a legal text by rigorously examining how the words were used at a given point in the past. Linguists study the rules governing the use of natural language. By creating massive electronic databases of all manner of texts thereby building a "corpora," or sample "body," to explore linguists provide data that can be investigated to determine how language is used by members of a community. Legal scholars argue that corpus analysis, although not foolproof, will often identify the ordinary meaning of words and phrases as they were used when the legal