James Cleith Phillips (Chapman University, Dale E. Fowler School of Law) & Jesse Egbert (Northern Arizona University) have posted A Corpus Linguistic Analysis of 'Foreign Tribunal' (Virginia Law Review Online) (29 pages) on SSRN. Here is the abstract:
In March, the United States Supreme Court will hear ZF Automotive US v. Luxshare, a case involving the issue of whether a private arbitration panel is covered by the statutory phrase “foreign or international tribunal.” The statutory language, enacted in 1964, authorizes a federal district court to order witness testimony or production of evidence “for use in a proceeding in a foreign or international tribunal” if the witness or holder of the material resides or is found in the district. The Respondent here seeks to invoke this statutory authorization to assist them in private arbitration held in a foreign country.
At its core, this dispute hinges on a linguistic question: what did the term foreign tribunal mean in 1964? Petitioners argue that a foreign tribunal only refers to entities imbued with government or quasi-government authority. Respondent takes a broader view, arguing that foreign tribunal refers to any entity in a foreign country that can enter a decision and bind parties, even if that entity is purely private. The parties devote large chunks of their briefs to the underlying linguistic question, looking to dictionaries and various legal materials to support their position. But the parties’ attempts to divine the meaning of foreign tribunal suffer from shortcomings common to legal interpretation. This article turns to a tool that avoids these shortcomings and provides a more rigorous, objective, and transparent answer to the question at hand. That tool? Corpus linguistics.
Increasingly, our courts (including the U.S. Supreme Court) have looked to corpus linguistics to better answer the linguistic questions that judges face in interpreting the words of the law. Understandably. Judges use economic tools to tackle economic questions and historical tools to answer historical questions. Shouldn’t they use linguistic tools for linguistic questions? “[W]ords are … the material of which laws are made. Everything depends on our understanding of them.” We can and should use the right tools for seeking this understanding.
After sampling 259 usages of the terms foreign tribunal and foreign tribunals across collections of texts using both ordinary and legal American English—including U.S. Supreme Court and federal court opinions, the U.S. Code, and U.S. legal scholarship—the data overwhelmingly show that the term foreign tribunal(s) was used in the sense of an entity using government authority to resolve a dispute, almost always a court. While there may be additional considerations the Court should take into account in resolving the legal question before it, the linguistic question is very clear: the term foreign tribunal seldom referred to a private arbitration body in American English prior to 1965, and the entity that was referred to as conducting arbitration was usually called something other than a tribunal.
Query: if it's true that "the term foreign tribunal seldom referred to a private arbitration body in American English prior to 1965, and the entity that was referred to as conducting arbitration was usually called something other than a tribunal" (emphasis added), doesn't this mean that "the term foreign tribunal sometimes referred to a private arbitration body in American English prior to 1965, and the entity that was referred to as conducting arbitration was sometimes called a tribunal"? And if that's true, then isn't that another way of saying that "foreign tribunal" could include both a court and a entity conducting arbitration?
[Update: Comment paragraph revised and corrected.]
Posted at 6:13 AM