Lawyers are often called on to make arguments about the interpretation of legal texts. Too many go straight to probable intention, policy, and consequences—perhaps because legal education from 1950 to the present has emphasized those factors the most.
But since the late 1980s, textualism has been on the rise—perhaps primarily from the influence of Justice Antonin Scalia. Textualism means resorting to close linguistic analysis of the governing text. This might include marshaling dictionary definitions (for lexical meaning) and citing grammars (for syntactic relationships)—and even citing books on punctuation.
In our experience, few lawyers have the linguistic expertise or the library resources necessary for this type of analysis. At LawProse, we maintain more than 4,500 dictionaries, 1,900 English grammars, and 80 books on punctuation. It could be that one needs only dictionaries and grammars for the period 1830 to 1850 to show the most likely sense of an 1840 statute. Or one might use a historical dictionary or historical grammar written just yesterday. It depends on the issue.
Not long ago, a lawyer came to us about the meaning of a slash (or virgule) in the payee line of a check. Only 3 of the 80 books on punctuation were on point. But it was handy having them arrayed on three shelves of our library—and, we think, far better than any internet search.
You can never know in advance just which of the linguistic resources might cinch a textual argument. That’s why an adequate library seems to us a necessity.
Once you argue the accepted meaning of the language, then you can move on to probable intention, policy, and consequences.
But ignore the language only at your peril. You’ll require much more linguistic astuteness than the nuns were able to convey to you in middle school.
The Basic Texts:
“A Note on the Use of Dictionaries,” in Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 415–24 (2012).
Garner, The Chicago Guide to Grammar, Usage, and Punctuation (2016).
Garner, Garner’s Modern English Usage (4th ed. 2016).