At Dorf on Law, Michael Dorf: Dicta and the Original Meaning of Article III. From the introduction:
A recent order in a pending Sixth Circuit case asks the parties for supplemental briefing on the original meaning of the cases or controversies language in Article III and its relevance to the distinction between holding and dicta. The order is especially notable because it directs the attorneys to explain how the Corpus of Founding Era American English bears on the question. To my mind, the order raises numerous issues. Here, I'll address the following:
1) How useful is the corpus for discerning original meaning as a general matter?
2) Even assuming the answer to question 1) is "at least somewhat," should lawyers who haven't chosen to cite it be directed by courts to do so?
3) Even assuming the answer to question 2) is "yes, at least sometimes," is this such an occasion?
4) Does the original meaning of Article III determine the line between holding and dicta, even on originalist premises?
5) How should one translate that original meaning, given substantial changes in how federal courts function since the Founding?
On corpus linguistics and originalism:
Not everyone is persuaded. A recent paper by Kevin Tobia uses contemporary examples, M-Turk experiments, and empirical analysis to show that in many settings, a corpus fails to capture the ways in which non-elites use language and thus the way it would be commonly understood. Tobia finds that both dictionaries and corpora have relatively high error rates and, in addition, frequently disagree with one another. Tobia does not deny that there can be a relatively determinate public meaning of some term at some particular time, but he offers reasons to doubt that a corpus is a very reliable means of recovering it.
Notwithstanding Tobia's good points, I tend to think that a corpus can be at least somewhat useful. … Even non-originalists like me think original meaning is relevant to contemporary meaning, so material that improves our ability to accurately discern original meaning is helpful to just about everyone interested in such cases. True, we should be mindful of the substantial possibility of being misled by a corpus, as Tobia's article underscores. But that is probably best seen as a reason to proceed carefully when using a corpus, not a reason never to use one.
Posted at 6:52 AM