Advisory Opinions - Judge Rudofsky Talks Corpus Linguistics

Episode Date: July 28, 2022

Arkansas federal district judge Lee Rudofsky joins Sarah and David to give a guided tour of corpus linguistics, a recent but fascinating tool for jurists. How do corpus linguistics help define constitutional concepts and definitions? Plus, our hosts pick apart an article about the possible leaker of the Dobbs v. Jackson Women’s Health opinion.   Show Notes: -Wilson v. Safelite -New York State Rifle & Pistol Assn., Inc. v. Bruen -Salt Lake City Corp. v. Haik -Muscarello v. United States -United States v. Rice -CNN: The inside story of how John Roberts failed to save abortion rights Learn more about your ad choices. Visit megaphone.fm/adchoices

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You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker, and we've got a great podcast for you today. We have a guest. We have a guest. And Sarah, do you want to go ahead and introduce the guest, or do you want to go ahead and clear up the etymology of the word litigators? No, no, no. We'll bring in our guests to have that conversation. Judge Lee Rudofsky is joining us. He is an Arkansas federal district judge. You may remember Lee from our Christmas judicial special. He joined us for that,

but I get to give a lot more background on Lee. So, sorry, Judge. Lee Judge. Judge Lee. Lee is good. So Lee and I did not go to law school together, but his wife went to law school with me and Lee was doing sort of a fourth year, if you will, of law school to stick around and make sure nobody called dibs on Soraya. and make sure nobody called dibs on Soraya.

They lived like two blocks away from me and basically fed, clothed, and bathed me during my first year of law school. We watched West Wing together. They like had a real house, like adults might. To me, they were full adults. It was like having your aunt and uncle live in town. It was amazing. Went on, they moved to Alaska for clerkships. Lee became the Solicitor

General of Arkansas at some point. He was my boss on Romney 2012. Lee has never left me in spirit or in principle or in anything. So we're not just talking to someone I know, we're talking to like family today, David. Outstanding. Lee, how come you couldn't pull Romney past the finish line in 2012? Think of what we would have avoided. I like to say that nobody went to jail, so I feel like I did my job. All right.

So before we hop into why you're here, we were talking to Judge Michael Ludig earlier this week. And to me, when I think Ludig, I think Ludigators. His clerks are just called Ludigators. Like, oh yeah, so-and-so, they were a Ludigator. Ted Cruz was a Ludigator. John Eastman was a Ludigator. The list of Ludigators is both impressive and terrifying at various points. And I asked him where the term came from. And he basically was like, I didn't come up with it. And then I was like chit-chatting with husband of the pod. And he was like, obviously, David Latt came up with that, Sarah. And I was like, oh, it does sound like David.

So I texted David Latt. He does take credit for litigators. But David, I was so wrong. And husband of the pod corrected me immediately and was like, Ludigators isn't even the only term, Sarah. What about Tattletots? And I can't even say it without giggling.

Judge Tattles' clerk family are called Tattletots. But David gave me some of the other ones that maybe didn't catch on with the same vigor as lutegators or Tadal. That's funny. And that is the bleeding Reinhardt's,

which is pretty great. Guido maniacs, friendlies employees, like the friendlies ice cream chain. So there were many, but I think luteigators caught on in a way where it's not a term of derision or even making fun of them. It's just actually what you call people who clerked. So Judge, do you call your clerks anything? Are you going to have a

family name? Rudofsky doesn't lend itself to anything to mind, but I bet David would come up with something. It doesn't lend itself to anything. I feel very boring. So far, I do not have any kind of nickname. However, I am sure once this pod comes out that you can imagine that my clerks are going to spend at least 24 hours figuring something out. And they're rather creative. So I don't have any doubt that within a week, I'll have something for you. Good. And how many clerks do you have right now? Right now, I have three clerks. One of them comes to us or came to me from the Pacific Legal Institute. One of them came to me from the University of Arkansas School of Law, and one of them came to me from Bowen, which is our other law school in Arkansas. And they are fantastic.

Shout out to the clerks for doing the chamber's work for the next 45 minutes or so. Thanks, clerks. I agree. Okay. So we brought you here so that you could teach all of us about corpus linguistics, which David thought involved a rotting corpse of some kind, which it might in some respects. I've read a few law review articles on this, but you're becoming a student of corpus linguistics. This has to do with originalism and original public meaning. So can you just give us a little mini judicial lecture on the study of corpus linguistics? I'm happy to. Let me first say, though, that you've come to sort of the bargain basement in terms of expertise on corpus linguistics. I do serve on the board of the Judicial Education Institute, which essentially has the mission of teaching

judges and where appropriate law clerks or incoming law clerks about corpus linguistics and both sort of philosophically why to do it and operationally how to do it. But there are sort of giants of this field, one of which I am not. I think of Justice Thomas Lee from the Utah Supreme Court, I guess now retired Justice Thomas Lee. I think of Stephen, I'm going to probably butcher his last name, but Moritzson, who's done some articles with Justice Lee and some articles on his own with this. And then, as I'm sure we'll talk about, there are a number of distinguished jurists who have started to use corpus linguistics in coming to their conclusions and writing up their opinions. And all of those would probably be better to explain this than I am. But hey, I'm here. You

have me. So while it has a fan- None of them clothed and fed me during law school, so unfortunately for them. That's right. While it has a fancy name, it's really not a fancy concept. It is essentially searching databases, large databases of naturally occurring language to figure out the definition or meaning of words and words used in statutes or the constitution. I think one thing you can see from all of these opinions is that this is a burgeoning field at this point. It's sort of just up and coming, although, you know, in the law, that means it's been around for a decade, but it's still young. And at this point, it's mostly being used for confirmatory reasons to sort of confirm what other tools of statutory construction have told judges.

But it's a tool in the tool belt and a quickly becoming a more important one. So, Judge, like making this concrete, because I did my corpus linguistics homework before every before our podcast. How how does this work so let's say take for example um you're an originalist uh jurist and you want to know what people thought of the term bare arms in the 18th and 19th centuries Does corpus linguistics help with something like that? It can. And the reason I say it can is number one, I'm a fairly well-trained lawyer and everything is either it can or depends when you ask me a question. But more importantly, the specific answer to a question like that depends on what you find from looking at whatever particular corpus you think is the right corpus or corpora to use. And essentially,

you know, Justice Breyer in his dissent, I think if I remember, it was something like page 28 of his dissent in the New York rifle pistol case, talked about corpus linguistics and particularly a brief that some corpus linguistic experts had filed that suggested Justice Scalia got hella wrong. And part of the reason was these linguists had looked up, I think it was like 120,000 entries or something of the use of bare arms back in that relevant timeframe. So sometime in the 1700s, some maybe a little earlier. And essentially what they found is that the vast majority of the times bear arms was used, it was used in connection with military activities or at least sort of public military displays. Now, how much does that prove or disprove is obviously in the eye of the beholder, and you have to use these things as one tool in the tool belt. The fact that there are multiple different meanings for bare arms might tell you a lot or might tell you a little, depending on how you put all of this together. So that's really the reason it can,

but it doesn't necessarily have to. It just depends on the situation. Well, Judge, you were so right. I just searched page 28 of the dissent and there it is. There it is. I'm not surprised. That's how Lee's mind works. It's very annoying. You will come to realize. I'm not surprised. That's how Lee's mind works. It's very annoying. You will come to realize. So this really explodes on the legal scene, what, around 2016. It existed before then, but some of the major law review articles are coming out around then. We have judicial opinions. You mentioned Justice Lee from the Utah Supreme Court who had used it in some of his opinions. Lee from the Utah Supreme Court who had used it in some of his opinions. But in some ways to me, and the reason that I wanted to talk about it this summer was because of the Bruin opinion from the Supreme Court, where this is the New York rifle and gun one

for folks listening, where Justice Thomas writes basically an entire opinion about how judges and justices basically have to become historians and linguists. And he never mentions corpus linguistics, but it's sort of built in here in some sense. And then more, you have to sort of do all of this. And Justice Alito's opinion in Dobbs is a little bit similar to that in terms of the amount of history and research into state prosecutions in the early 1800s that these justices are doing. And at one point, Justice Thomas takes on that criticism in the New York rifle and gun case and says, you know, people are saying that this is like too much work for judges,

but A, judging shouldn't be that easy, but also B, you were just people are saying that this is like too much work for judges, but A, judging shouldn't be that easy, but also B, you were just making it up before, and so now at least you have to do some work. Okay. So my first question, I guess, is does this term Supreme Court opinions make corpus linguistics more important? Are people now like judges, district court judges, et cetera, going to rely on this more? And if so, how does that work practically? You have a gazillion cases compared to the Supreme Court's 66. So let me try to answer both those questions. I'll take the first one. I don't think that the current Supreme Court precedent requires in any way the use of corpus linguistics.

I think perhaps you could make an argument that it foretells the use of corpus linguistics, and I'm not even really talking about Justice Thomas's opinion that you mentioned, or Dobbs, but Justice Alito wrote a concurrence in the Facebook case, the one about the TCPA, I believe it's the Telephone Consumer Protection Act. And one of the things he talked about is the use of corpus linguistics, or at least the potential for the use of corpus linguistics, to give us some good quantitative information on whether one or more of the canons of construction are right, meaning the canons of construction essentially tell us how normal people read normal texts most of the time. And of course, while they're not fixed and

there are exceptions, they give us a sense of what the majority reading of a particular text or a particular structure would be. Justice Alito made a good point, which is that you may well be able to use corpus linguistics as a check on those canons of construction to see if statistically it actually bears out that the way you do those structural readings is correct. But anyway, no one said a judge has to use corpus linguistics, but I would say it's very clear if you look at the examples of where it's been used. I think now it's been used in the Third Circuit by Judge Hardiman. It's been used in the Sixth Circuit by Judge Riedler in an opinion signed on to by Judge Sutton. It obviously was used in the Sixth Circuit by Judge Riedler in an opinion signed on to by Judge Sutton. It obviously was used in the Utah Supreme Court. And that started sort of the seminal case was back in 2015,

Utah v. I think it was Rassabout, where Justice Lee wrote a very, very long concurring opinion, or I think it was a concurrence in judgment maybe. And it was kind of like his opus magnum on corpus linguistics. But it's been picked up more considerably, I think in the Sixth Circuit, if I'm not mistaken, maybe Judge Thapar also has an opinion on it. I know Judge Mizell used it in the airplane mask mandate case. I think what you are going to see is slowly but surely it will be used both as confirmation and then perhaps eventually supplanting the idea of dictionaries as perhaps the primary tool or one of the primary tools of statutory construction. However, my sense is that this will be a very slow process and only will really pick up.

And this speaks to your second point, Sarah, it will only really pick up when there's a critical mass of opinions that requires attorneys to really engage on this front. Because your point about not having enough time, especially at the district court level, to do sort of hardcore historical research, hardcore corpus linguistics research, in some sense you have a valid point, but one of the reasons we have an adversarial system is the attorneys are really supposed to do that hard work for the judge. And what I'm an expert in is not, for example, economic policy when it comes to antitrust cases or sociological and peniological work when it comes to sentencing. But I'm an expert, and most judges are an expert, in sort of the more general idea of weighing people's arguments.

And so when we can get the attorneys to make these arguments and take these arguments seriously, it adds another potential layer to what we can do. it adds another potential layer to what we can do. So, Judge, this makes a lot of sense in an era of origin, in an originalist era, when you're going to be looking back to original public meaning of, you know, the Constitution, constitutional amendments, etc. I've got a really practical question here, sort of putting on my attorney hat. So I'm looking back at the accurately noted page 28. And here's one thing that it says. So this is Breyer. Since Heller was decided,

experts have searched over 120,000 founding era texts from between 1760 and 1799, as well as 40,000 texts from sources dating as far back as 1745 for historical uses of the phrase bear arms. And they concluded that the phrase was overwhelmingly used to refer to war, soldiering, or other forms of armed action by a group rather than an individual. And goes on to say non-military uses of bare arms in reference to hunting or personal self-defense are not just rare, they're almost non-existent. So we don't need to litigate that. But the really interesting question to me is, I'm an attorney, where am I finding a searchable database of all of these founding era texts? Is this a reasonable sort of ask for an attorney in a

typical case to go back to that level of granular knowledge of 200-year-old, a body of 200-year-old documents? Google's impressive. I didn't know it could do this. Who does this? So I think that is a great question, David. Number one, that is not a typical case, right? So Bruin's not a typical case. It's a case that was so complicated and challenging. The same thing with Heller that 99% of these cases are perhaps not as challenging. You know, most of the cases where there's an issue of statutory construction, you never hear of because pretty much all the evidence is on one side. Of course, there are hard calls. And so, as an attorney, just like we require attorneys to exercise judgment about what arguments to put into a brief, right? You don't sort of necessarily throw the kitchen sink at everything. I think you'd expect attorneys here to figure out, in some senses, the game worth the candle. Is it an expensive enough case? Is it a complicated enough issue? They make decisions like that all the time. Now, I think underlying your question in the sense of where do they turn to, that's a really good question. So I will say there is a pretty good case that also comes from the Utah Supreme Court. I forget the name of it.

It's not the Rassabout case. It's actually from 2020. I think it's Salt Lake City versus Hyatt. And in a footnote there, Sarah's going to laugh, but I think footnote 29, in a footnote there, they explain how one would go about performing a corpus linguistics analysis. And if you all end up putting something like that in the show notes, I think that's a fairly good example of how somebody would do it. Now, the other thing I'll say is, you know, Justice Lee is forming his own law firm. And I think if reports are to be believed, one of the things he's doing is working with a linguist, and he's going to have

a linguist on staff. I don't think it's too much to ask big law firms to have, in addition to a librarian, to have a linguist on staff to potentially help you with this type of work. I mean, you know, I used to be a Kirkland and Ellis. They can afford to have a linguist. Now, maybe some other folks can't, but that's the difference between, you know, being a Kirkland and Ellis and being somebody else. One more thing, David, let me just tell you, there are out there a bunch of different, they're called again, a fancy word, corpora to look at. So there's the corpus of, it's called COHA. I believe it's the Corpus of Historical American English. There's the Corpus of Founding Era American English. There is the corpus of founding era American English. There is the corpus of

contemporary American English, if you're doing contemporary work and not historical work, which, by the way, there are disagreements between both judges and experts on, for example, if we're trying to define a criminal statute, should we worry about what it meant when it was passed or should we worry about what it means today? So you'd have to pick your particular corpus. There are also technical corpus corpora or legal corpora, depending on if you're looking for the ordinary common meaning of a word or a more technical legal definition. But I want to stress, none of this can be relied on as sort of just a, you put in what you want and you spit out an answer. It's all just to help the judge. I'm thinking just briefly about how in the securities industry, the development of the quant,

the mathematical expert gave math like PhDs a whole new income stream. I'm imagining the celebrating linguists right now. I know. Wouldn't that be great? We like start bringing back some of these liberal artsy things. All right. One of the law review articles that we'll put in the show notes is coauthored by Justice Lee on the Utah Supreme Court and two law clerks from the Utah Supreme Court, which is really fun. And here's their conclusion. Originalism has theoretically evolved from its rebirth in the 1980s, but the methodology of original public meaning has not been able to keep up with the theory until now. With the emergence of corpora, as well as the soon-to-be

launched COFIA, original public meaning methodology can become more accurate and credible. It can be more rigorously empirical and transparent. It can fully enter the 21st century to enable us to better reach back to the past, which is great. But in the judges that you've listed that are using it, you've basically listed conservative judges with a big asterisk for Justice Breyer. And I'm curious whether you think that corpus linguistics lends itself to one political ideology more than the other, as originalism has been more associated with the right for 30 years, but is starting to become, I mean, we've now talked to Akilah Marr, a leftist originalist, if you will. So if originalism is now the predominant interpretive methodology,

what is corpus linguistics to that? I think it is incredibly important for institutional reasons, and I know some people think that's a bad word, but I don't. I think it's incredibly important for institutional reasons. I think it is incredibly important for buy-in reasons to make sure that this does not become a sort of one judicial philosophy approach. I actually have considerable consternation about that and worry about that issue. Now, I will say this. Originalism and textualism started basically, at least in its modern sort of incantation, started basically, at least in its modern sort of incantation, as a philosophy that was embraced by people on the, I hate talking like this, but for lack of a better term, sort of right side of

the judicial aisle. But eventually it became mainstream. And I think a lot of the reason it became mainstream is because people understood if you were going to use it fairly, it would have value to both sort of judicial ideologies or everybody actually, regardless of your judicial ideology at all. And I mean, you know, the sort of march of originalism from, let's say, 1980 or the early 1970s to the new century, where Justice Kagan, despite maybe potentially walking it back in one of her opinions this year, says we're all textualists. You know, that I think is the same march that one hopes for something like corpus linguistics. And I think everybody, at least everybody who is responsible, has to admit that corpus linguistics is in its infancy. And we're still, all of us collectively, in the process of figuring out if this can be operationalized to be sort of either incredibly useful, useful sometimes, almost never useful. I find myself on the sort of useful sometimes portion of that spectrum, but I think everybody would tell you that it needs more work to perhaps perfect it. But that isn't necessarily a good reason not to do as much as we can with it now, especially

when you compare it to the other alternatives, which are dictionaries. You know, one thing that's really important, one thing that's really important to sort of emphasize is that people often trust dictionaries without really thinking about it, but dictionaries have some problems too. I don't know if you all have looked at the case, there's a Supreme Court case, Muscarello, where there was a sort of Justice O'Connor for the majority and Justice Scalia for the dissent, spat based on the word use in a criminal prohibition or enhanced penalties for use of a firearm in a drug trafficking crime or during a drug trafficking crime. Corpus linguistics would have been really helpful there.

But if you look at the dictionary, Muscarello spent some time talking about, well, what was the first dictionary definition versus the 26th dictionary definition? Well, the problem is, that's really sort of, in some sense, a false premise. Because if you go look at the beginning of these dictionaries, they all order their definitions differently. And almost none of them order them in the sense of what is the most common meaning or the most common definition. They either order them in chronological order of definitions when those definitions were come up with, or they order them in some other sense. But there's lots of flaws. That's just one of them. There's lots of potential flaws with just relying on a dictionary. And just to follow up, because maybe we should have started with this,

what is the theory to justify original public meaning versus the meaning that the legislators had? Like, why do we care what just random folks walking down the street thought when it comes to this corpus linguistic stuff in the first place? I think there are multiple answers to that. answers to that. I'll give you just the sort of one-inch deep answer, and then actually for a much more comprehensive answer, I'm going to refer you to a Sixth Circuit case, which I think was really, really interesting on corpus linguistics. The one-inch deep answer is, deep answer is in terms of the Constitution, at least in my view, the sort of special moment was not when the Constitutional Convention approved the draft. It was when the voters, or in that sense, the state legislatures or the state conventions, ratified the Constitution. And so because of that, you have to figure out what it is they actually ratified.

And the only way we do that, at least in my view, is figuring out what everybody thought the words meant. everybody thought the words meant. And that sort of resolves down to the level of original public meaning to the best one can do it. And obviously, none of this is perfect. Sarah, as you've said, none of us are historians, and quite frankly, historians fight about this. So you're just trying to do the best you can to figure out what the right answer is here on original public meaning. When you get into statutory construction, I think the reason you use original public meaning is it's the best evidence of what both the legislature meant and what the president thought it meant when he signed the legislation, or she signed the legislation hopefully soon at some point. Point being that it's hard to use intent, at least in my view, because you have all of these different legislators. You have the president as an actor as well.

And so the best way to do that is to figure out simply what the ordinary words would have meant to everybody. I guess I'll go one further, at least on criminal statutes. There's also an issue of fair notice and due process involved. and due process involved. It's probably pretty important on criminal statutes to make sure that you're holding the statute to the meaning that everybody, or at least an ordinary person, would give to it. Otherwise, a whole lot of people are going to commit federal crimes or even state crimes that they don't know are crimes. So one thing that I think you talked about as an alternative to corpus linguistics is the dictionary which the dictionary is quite malleable for a lot of different reasons i mean

there was just a controversy online controversy this week about miriam webster changing the definition of female or adding a definition of female as somebody who's the opposite of male i don't know what that means to be the opposite of male, but that's a change in a dictionary definition. The other one, it seems to me, is not just the dictionary, but cherry picking. In other words, if you've got a large body of historical documents, you can kind of find maybe what you want to find in there. And it strikes me that corpus linguistics might be a good way of identifying at least what is consensus versus what is an outlier in sort of understanding. So here's where I think the sort of the push is and perhaps the payout of corpus linguistics.

the sort of the pushes and perhaps the payout of corpus linguistics. Like anything else, people can still abuse it intentionally or just do bad research. That's true of everything. But at least with corpus linguistics, you can try to have some added transparency. So, you know, added transparency. So, you know, essentially what you would do in these various corpora is you would input a search, just almost like you do a Westlaw search, right? Let's say, if you go back to my Muscarello example, you would input use, perhaps all different versions of use within four words or five words of firearm. you would get all of these lines that you could search through, and then you could sort them either quantitatively or qualitatively. You can have somebody go through and sort them and see what the results are. There's another case, and as I say it, I think I may have given you the wrong case. I think Smith versus the

United States was the case about using. I think Muscarello was the sort of other portion of that statute, which was about carrying. But the same thing applies. In Muscarello, I think, if I'm not mistaken, it was, do you have to carry it on your person? Or what if you carry it in the glove box of your car? And it's really interesting if you go through a corpus linguistics analysis of language at that time, what you actually will end up coming up with is that except for perhaps one or two examples of carrying a gun in a suitcase, every time somebody is talking about carrying a gun, they are talking about it on your person. Now, of course, again, that doesn't mean that the way the law was written wasn't to sort of get to that small minority of cases or to at least include them. Maybe it was, but the more evidence you have that the ordinary meaning is lopsided on one side,

the better chance you have of saying the lopsided side wins, holding everything else equal. Also, David, I know I promised you all that I would give you the name of that Sixth Circuit case. It's Wilson v. Safelight. And the really interesting thing there is that Judge Thapar and Judge Stranch in two concurring or one concurring, one dissenting, I think, opinions, they had a big fight about the utility and advantages or disadvantages or disutility of corpus linguistics. And it required Judge Thapar to really spend some time responding to his colleague about why the negatives of corpus linguistics are not so bad as to outweigh the advantages. And it's a useful thing for everybody to read. So you've pointed out the problems, let's say on a horizontal axis, where there's multiple

potential meanings in the corpus itself. That's obviously a problem with corpus linguistics. There's three ways that this was used all the time, and it was a perfectly fine way to use it. The word bid comes to mind. We have two very different meanings of the word bid, but they actually are both used interchangeably, bidding someone goodbye, asking sort of permission, if you will, versus bidding, proclaiming something in like an auction type idea. So that would be the horizontal axis. But you're also going to have this vertical axis of, as one law professor wrote, how thinly or thickly to interpret what you're finding. So, okay, there's one meaning, and it's to bid someone goodbye. But within that meaning,

but within that meaning there's bidding someone goodbye as in you say goodbye to them but there's also to bid someone goodbye meaning to ask their permission that's sort of the original meaning of it and so there's within that single definition sort of multiple thick and thin ways to define it. There's examples we could use. How is corpus linguistics ever going to be helpful if in most cases you're going to end up with multiple definitions and even where you just end up with one or you're able to narrow it down to one, there's just going to be ways to do that more broadly or more narrowly. Aren't we just back where we started? Well, Sarah, I think that's a very good point. And I think for some set of cases, you're going to be 100% right. That's going to be the outcome.

And the response to that is we might be back where we started, but we're there with an extra tool in the tool belt, right? We're there with an extra tool in the tool belt, right? And so if corpus linguistics helps, great. If it doesn't help, then we have to, you know, continue to use everything else and see what helps. I mean, at some point, there are hard cases and we have to come to an answer. And the dictionary is going to give us several different meanings. And intuition is going to give us several different meanings.

And perhaps the structure will give us several different meanings, and intuition is going to give us several different meanings, and perhaps the structure will give us several different meanings. This is just another way to see if we can resolve that ambiguity, and it will work sometimes and won't work sometimes. Now, I will say, as corpus linguistics gets picked up, as people figure out how to refine these searches, that should get better. And so the number of cases that your problem persists in should get smaller. I kind of honestly liken it to Westlaw. I mean, at the point where it becomes sort of financially viable for someone to do this, and I shouldn't say Westlaw, I shouldn't just give them credit, Lexus too, as it becomes financially viable for somebody to do this as a real search

engine and to sort of perhaps make money off of it, the incentives are there for it to get better and better and better and more refined and more refined, but we have to start somewhere. better and better and more refined and more refined, but we have to start somewhere. You know, it's interesting. This is really fascinating to me. And I keep going back to this, you know, Breyer usage of it, because what's interesting about that to me is if I'm reading this now, if I'm reading the right to keep and bear arms now, the answer to the case seems really easy and clear to me on its face. There is a right, which means that the government can't, through entirely subjective criteria, just withhold it from me, to bear arms. And bear arms seems to have a pretty clear meaning of carry weapons.

But here you go into this corpus linguistics and it says there's 900 instances in this corp. What, what do you call it? Corpa, whatever. Corpora, but I really just call it a database.

Database. All right. In the corpora, there's 900 instances in which bear arms was used and only seven instances as Database. number, assuming that the scholars got this all correct. Should that shake my interpretation? Should that shake my conviction about what the Second Amendment is communicating? I've trained for this question, David, because I went through my confirmation process. my confirmation process. I'm going to tell you that I'm going to uphold Heller, and Heller is settled law, as they might say. But I'll give you one further. I think it is really important at all times, but especially now when things like corpus linguistics is new and sort of

just coming of age. I think it is really important to remember that just because somebody uses corpus linguistics doesn't mean they're necessarily using it correctly. There's always another side of the story. I don't think we probably have time on this podcast to get into a long discussion about whether the expert brief that Justice Breyer cited was right or wrong. I will tell you as a shorthand, there are certainly very good, serious arguments on the other side in terms of what bare arms means. what bare arms means. And again, remember, just because bare arms might have a smaller definition and larger definition doesn't necessarily mean which one is right in this context. So the short answer to your question, David, is I don't think your trust in Heller should be shaken by that. On the other hand, it's a perfect example of where something like this should cause you to at least do more work and research if you're the majority and figure out what's going on here. That, I think, is the perfect place to put a pin in our corpus linguistics conversation. But there was a few other things that I wanted to touch on. David, you had mentioned you'd been to Arkansas once or something? No, recently. Recently. I flew in a B-29,

one of the last two remaining B-29 superfortresses from an airport in Blytheville, Arkansas. And you asked Judge Rudofsky whether he'd ever been there, and I thought the answer was so charming. Before I give that answer, Sarah, could I, for a half a second, take the pin out for one final word? Oh, yes, please. Thank you. One thing I did want to mention is that judges and clerks, yes, please. I'm on the board of the Judicial Education Institute. The person who runs that, sort of our chairman of the board and president, is James Halpern. And one of the things he does is goes around the country and gives sort of lessons on how to operationally do this work to various judges or courts if they ask for it. I know that has been very, very helpful to some of my colleagues and to some of

the state courts. And then very quickly, just the other thing, so it's easy to find him, the website is judicialeducation.org. So now that I have given you all that, let me go back to your actual question, which is, I told David in terms of Blytheville, the reason I had been there is the state Supreme Court does appeals on wheels, which I know you like that term, Sarah. I do, I do. It's like tattle tots. It's warming my heart. It's a really good idea. Maybe, I think twice, maybe once or twice a year, they hold oral argument at a high school in various places around the state. You know, the idea being that not everybody's in Little Rock, not everybody can get to Little Rock, and rural high schools around the state should really get the opportunity to see what

the Arkansas Supreme Court does. When I was Solicitor General, I was so taken with the idea that I thought it was important to argue as many of those appeals on wheels as I could, regardless of sort of what the issue was or whether the issue was sensitive or politically hot or anything like that. And so I argued in Appeals on Wheels in Blytheville. And so that is, David, in my connection. I, just based on this 30 seconds alone, am now wildly in favor of the Supreme Court doing Appeals on Wheels in schools of the Supreme Court doing appeals on wheels in high schools around the country. I think it would be awesome because unlike riding circuit where you're simply hearing oral argument in other courts, which had a purpose, but one that is basically gone at this point in terms of

our need for it, I actually think there is a huge need to bring this level of education and institutional knowledge into high schools. I think that's just a great idea. And congrats to the Arkansas Supreme Court for its awesomeness. I was going to say, I'll do you one better, although I guess from your perspective, it might be better, it might be worse. But I just recently came from the Eighth Circuit Judicial Conference, and one of the hot topics was civics education. And one of the things that I was thinking about as I sat there listening to what was actually a truly excellent presentation is I think I may start holding court at high schools around the state. Oh, that's because I'm new and I want to make sure I get it right.

And additionally, if I'm going to throw something out on a dispositive motion, I want to make sure that the losing party feels like it had its day in court, even if it wasn't its full day in court. But I'm not sure there's any good reason not to do that in front of high school audiences. I think that would probably be interesting to them. Oh, I hope your three clerks are ready for this. That's going to be fun for them. I know the Ninth Circuit, for example, has held oral arguments in law schools. And I don't know if other circuits... See, that to me is a little bit different. For some reason, I am less taken with the idea of law schools because by that point, you've already entered,

you've agreed at least to enter the practice of law. You're already heading that direction. It's helpful for the law students, no doubt, but the law students can also take the train or the bus potentially to the courthouse. High school students, the vast majority of these people are going to do something totally unrelated to the law, and yet the law is going to affect and touch their lives all the time. And so it's a way to give them just a brief glimpse before they go off to be linguists who don't work at Kirkland and Ellis of what this part of our sort of economic culture is about. I'd be for holding surgeries in high schools as well.

That might be less practical in some respects. But basically, this idea that different parts of professions could show high schoolers, young people, what they do, especially the parts that are covered by the media, and so there's this filter in between would just be so helpful. Well, I think there's another aspect to it as well. You all probably know that I am a big fan of your podcast. At least I know Sarah knows that. And one of the reasons- You have to be, you're family. No, but even if I wasn't family, I'd be a big fan. And this is not just

saying that I'm a big fan. One of the things I know you all harp on correctly, and I think is very important, is the need for people to understand how to disagree without being disagreeable, and how to have strong views, but not come to blows, as it were, about them. And Sarah, I think one of the things you may sort of intuitively be thinking about in the dividing line between high school and law school is, in some sense, at law school, if you haven't learned that lesson yet, it's going to be really hard to instill that value in you. I think in high school, you can often get a lot from listening to cases and listening to people have really divergent views, but explain them professionally and calmly, even if it's a area that is emotionally fraught. is emotionally fraught, everybody having to stand up and do that and being able to stand up and do that and shake hands at the end, to me, is a very important lesson for high schoolers. This is going to go with my high school curriculum redo as a whole, where in high school, there will be two recesses. School won't start till 10 a.m. Everyone will have standing desks.

We'll get rid of large swaths of the curriculum and replace it with logic and statistics. Aristotelian logic will be two hours a day and statistics will be two hours a day. Then we'll do some reading. Reading will be your choice. You'll have 100 titles and you can just pick which ones you want to read from instead of having to read Billy Budd, which is the worst book ever. I don't even know what that is. It's Melville, David. It's Melville. Okay. Sorry. And as part of that, at my high school, we will host oral arguments for Judge Rudofsky's chambers. My high school is going to be amazing. It sounds like you've got your first charter school startup in Conway, Arkansas. Done.

Yeah. Let's do it. Anytime. You can't scare me. Thank you so much for coming on to do this. I know you have a busy hearing schedule this week and really appreciate you sitting here and having a conversation that helps you do your job today. Not at all. And thank you to the clerks, the Rudofsky Chamber

clerks, which will be the last time we call them that because by the next 24 hours, we'll have a new name for Rudofsky Chambers. And I'm so excited. Thank you, Lee. I was really happy to do it. so excited. Thank you, Lee. I was really happy to do it. Sarah, you know that in the most professional way possible, I absolutely adore you. And David, in addition to having Blytheville in common, there's no reason you should remember this, but we ran into each other a long time ago at a conference in Hawaii of all places. And, and, and since then I have been a very big fan. So this, this is really nice to do with you guys. Well, thank you, judge. That's very kind of you. We really appreciate you coming. This was fascinating.

This was absolutely fascinating and really appreciate it. Now we're going to kick you off the pod and talk about you. Okay. See everybody later. At Real Canadian Superstore, our colleagues collectively speak over 100 different languages and counting. We pride ourselves on items from different parts of the world. From hard-to-find specialties. To tastes that will remind you of childhood. So welcome everyone.

Come shop the world right here in our aisles with more ways to save at the Super Welcome Store. Real Canadian Superstore. All right, that was fantastic, Sarah. As we told the judge just before he left, we're going to kick him off the podcast and talk about him so uh i i found that fascinating i i find the whole concept fascinating because of the thing that i mentioned earlier the way in which it can deal with the cherry picking problem which i think is something a real issue when you're talking about a history that has a lot of commentary around it that was generated in real time. So I thought it was fascinating.

I mean, if anyone's wondering, sometimes I'll talk about how much I enjoyed law school, though I don't necessarily suggest that everyone go to law school, obviously, as opposed to David. I just have to gush for a second. Like that's part of the reason why I got to spend my whole first year. Lee was clerking at that point on the Massachusetts Supreme Court and was just this incredible mentor to me, as was his wife, by the way, Soraya, who was not on the podcast, but is equally amazing and impressive and kind and generous. And you know, you don't need to go to law school to meet people like that, but when you do meet people like that, hold onto them and never let them leave you as I

have done with Lee. I actually, they got married at the end of my first year of law school and I dressed Soraya for her wedding and it like, uh, just they're the best, the best. Yeah, it was, it was fantastic. Really enjoyed that. Um, and now I've got, I want to interview you briefly, Sarah, on two questions. Okay. Two, two, uh, news developments. So news development number one is that there, there is now reporting that the Justice Department is asking witnesses about Trump in its January 6th inquiry. So this involves the federal grand jury and witnesses appearing in front of the federal grand jury. And I'll just read the lead paragraph in the New York Times. Federal prosecutors have directly asked witnesses in recent days about former President Donald J. Trump's involvement

in efforts to reverse his election loss. A person familiar with the testimony said on Tuesday, this is a Times report following a Washington Post report, very similar, suggesting that the Justice Department's criminal investigation has moved into a more aggressive and politically fraught phase. We had a dispatch live last night for members. So if you're not a member, please join. And you can see our dispatch lives on every Tuesday night in which I think you explained very well. This story and how to interpret this story based in particular off of your experience with the Mueller investigation when you were in the DOJ. So I would just love it if you repeated your explanation.

So it just was so much Mueller PTSD because not only does the story read so I mean, word for word at points, like literally this is a line from yesterday's story. The degree of prosecutors interest in Trump's actions has not been previously reported. I could almost like bet you money that I could go back to 2017 and find that exact same line in a Washington Post story with the same byline reporters who are all incredibly impressive. So this isn't anything on them. But what was happening during the Mueller investigation was that as the grand jury stuff proceeded or prosecutors were interviewing potential witnesses, more and more of these, quote, sources familiar with the investigation or with the grand jury proceeding. And it wasn't the prosecutors who actually knew what direction they wanted to head in. It was a lawyer sitting in the room or it was a potential, you know, one of the witnesses who was interviewed by the lawyers. Of course, the prosecutors are asking you about Donald Trump. It's an eight hour interview, dude. They're asking you all sorts of things. It doesn't necessarily mean that they're tipping their hand on the direction

of the investigation. The things that tip DOJ's hand are when they execute search warrants, subpoena things, indict people. And so I was screaming at the top of my lungs during the 18 months of the Mueller investigation about how frustrating it was that they kept trying to read tea leaves that weren't really there instead of looking at what was actually done and then drawing conclusions from that. Like, okay, we've indicted 12 GRU officers, Russian intelligence officers, for meddling in the 2016 election and laid out pretty specifics of how they did it, the DNC hack, et cetera. So there were no, like it says in the indictment, no Americans were involved. Take from that what you will. So I say all that because,

look, this could be totally different than Mueller. I am fully acknowledging that I am colored 100% by that 18-month experience, but it looks so similar. And the whole thing is so similar, right? It's a high-profile public investigation that DOJ is doing where they're not going to confirm or deny the existence of different subjects or targets or where they're headed. And of course, they have, you know, searched, search warranted or subpoenaed 15 people in and around the president as they interview them or they go before a grand jury. Yes, they're asking what the president's involvement was. It would be malpractice if they weren't. But it doesn't mean that they have a case

that they are building against the former president yet. Now, if someone in one of those questions answers, well, yes, actually, I was acting at the direct direction of former President Trump, and here's the email, and here's where he says to go commit crimes, yep, then I bet they'll change direction. But the fact that they're asking the questions to me, that's not particularly newsworthy.

And everyone jumping on it, again, it feels like 2017 all over again, where it's sort of resistant swine moms getting their hopes up that Donald Trump's about to be perp walked on Fifth Avenue, or in this case, Miami, I guess. And I see nothing to support that conclusion at this point.

And we've already talked about this. DOJ has taken no investigatory steps on the incitement stuff. I think that's not happening. They have taken these steps on the fraudulent electors. Those are the 15 people who've been subpoenaed or the search warrants that have been executed. So I think it's fair to say that they are hot and heavy on that trail. And there's various fraud statutes that could fall under, though, again, I actually think it's not a slam dunk. Those are still difficult statutes to fit into this, but it's very possible. But yeah, I haven't seen anything from DOJ that actually is encircling the former president, as opposed to Fulton County, Georgia, where I think we have seen actual investigatory steps at the state level, state prosecutors, where they do seem to be focusing on the president when it comes to his efforts and those fraudulent electors and all of that. Boom.

Yeah. And the way I put it and the way yesterday is the news to me would be if they were not asking questions about that would be strange. So but and the other thing about the Mueller investigation that we've talked about before, the Mueller report had new information in it. But the guts of the story was already revealed by all of the indictments that preceded the release of the report. So you had the story of Flynn's actions. You had the story of Manafort's actions. You had the story of the GRU officers. Manafort's actions. You had the story of the GRU officers. You had a lot of various puzzle pieces that when you put them all together were most of the picture, which goes to your point that a lot

of the public activity actually ends up telling you the story if you know where to look. Okay, next question. You read, there was a CNN article, a CNN report called The Inside Story of How John Roberts Failed to Save Abortion Rights. The headline promises a bit more. Is that fair to say? The story promises more. Yeah, then the article,

the story actually delivers. But the guts of it seem to be that Roberts, not terribly surprising, that Roberts was focusing efforts on Kavanaugh and to a lesser extent, Amy Coney Barrett, to try to pull them to his side, which would have been upholding Mississippi's 15-week ban, but not reversing Roe and Casey entirely. Roe and Casey entirely, but that the release of the leak kind of locked everybody in. Nobody was changing after the leak. Your thoughts? So I think I read the story slightly differently, not really differently. I think you're just doing the shortest version. So let me give the slightly longer version. A, so obviously Roberts was trying to persuade people to join him because he had an opinion. He must have thought it was right. You always try to convince people that your opinion is right and

to join you. So that wasn't particularly newsworthy. They try to make it sound like maybe he was going to make some headway, but for the draft being leaked. But the story itself also says that that was never going to happen, that Kavanaugh's vote was locked in from the get. I had this conversation with someone right after that story broke of like, so wait, did the draft matter or not? The leaked draft, I mean. And my answer is the draft mattered in that it locked in the language. I don't think votes were at play ahead of the draft leaking. They obviously weren't at play after the draft leaking. But I think that the opinion itself probably just would have been

edited normally in the course of editing a draft opinion, which really they couldn't do after the draft because then everyone like us would have sat there and scoured over every comma and preposition that was switched. So the story was kind of nothing except maybe it's a story that Kavanaugh's vote wasn't really in play, but he was willing to hear out the chief justice. But of course he was. What about the last two years hasn't shown you that Kavanaugh will go out of his way to listen to fellow justices, but particularly the chief justice who he knows I think is going to be in that minority sort of cheese standing alone position. So yep, he always hears them out.

But at least according to what I, my own sources, yeah, Kavanaugh's vote was never up in the air. never up in the air. Yeah. I mean, to me, the story was not much of a story. It was the chief justice tried. It would be, again, news if the chief justice didn't try to get anyone to join the chief justice of the Supreme Court's opinion in the case. That would be news, I would think, that he didn't try. And I think that to the extent that there's any sort of locking in, number one, that's the most predictable. Again, it would be weird if the leak made everyone more malleable. So the leak was always going to, to the extent it was going to have an impact, was going to lock people in just because the perception was, well, we're hoping public pressure is going to do something here. Now, the story didn't say this, but the Twitterati said this, that like, ah, this is evidence that the motive of the leaker came from the right side of the spectrum. I think that's equally bizarre.

The story doesn't say anything. It provides no new evidence for anything about who the leaker is. We already knew that one of the reasons that the leaker could have done this was, A, to solidify votes on the right, but there were no votes up in the air on the right. So the story doesn't provide any evidence for or against that theory. If anything, it cuts down that theory. And B, that it locked in the draft. Okay, yep, it did lock in the draft. There is no evidence that that draft

was going to change in any material fashion. I think it would have changed in some of the ways that I wanted it to, to like be more persuasive and less snarky. It wasn't snarky. You guys know what I mean. Just more sure-footed. And so this idea that Joan Biskupic has now provided the evidence that it was a conservative law clerk, what? What evidence? I mean, I can make the case either way, as we've done from the beginning. There was a case for there to be a right-wing motivation for the leak.

There's a case for there to be a left-wing motivation. And the fact that it locked in votes doesn't mean that a person, a young progressive, steeped in the world of Twitter pressure campaigns making a difference, wouldn't think that a Twitter pressure campaign would make a difference. And it didn't lock in votes. The chief had made no headway as of May 2nd in switching anyone's vote. Again, I have some reason to believe that Kavanaugh's vote was never in question. Joan Biskupic reports that Kavanaugh's vote was never in question. So if the votes weren't ever up in the air, that motivation doesn't exist.

Yeah, yeah. I mean, we'll wait and see if the leaker is ever identified. But I mean... David Ladd had a whole thing. He thinks the window has passed. Yeah. The window on the investigation has passed. The window on the leaker revealing themselves has passed. The window on the investigation has passed. The window on the leaker revealing

themselves has passed. He had a whole theory of how the, he had a 16 point play by play of how the leak went down. He says that it's meant to be sort of fun fiction in that sense. But there's some points that we absolutely agree on, which is, I think that the reporters, and I've said this before, that the political reporters don't in fact know who the leak is or else they wouldn't have needed to spend days confirming the authenticity of the draft itself. Because if it were a justice, obviously you don't need to confirm it. But even a law clerk hands you a draft opinion, you're going to spend a few hours confirming that, but you're not going to spend days and go through all of this effort that Daphna Lisner describes if you know that it came from a law clerk who's sitting there

in chambers and obviously has access to that draft. So I think there's a good chance it was a cutout. I think there was a good chance the reporters don't know who it is. David has a whole dark drop at Rock Creek Park under a bench type thing. I don't think that's probably how it went down, but it was a fun read. Highly recommend. Yeah. We'll put that in the show notes. But yeah, that was a scoop where I just felt there was less there than met the eye and wanted to get your take on it. Two scoops, less there. Disappointing. Yeah, indeed. Indeed.

Like sugar-free ice cream. What's the point? Exactly. But not disappointing was our discussion of corpus linguistics. So true. Yeah, absolutely. All right. Well, thank you all for listening as always. We will be back next week on Tuesday, just like usual. In the meantime, please go rate us.

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