Georgia State College of Law Professor Clark D. Cunningham was afforded a rare opportunity last month, when he was invited to give a presentation of a neutral amicus brief during oral argument in front of the Georgia Supreme Court.
In the case of Nelson v. State, Cunningham, who teaches the Seminar on Original Meaning: Linguistic Analysis of Legal Texts, offered to provide a neutral analysis based on empirical research of the meaning of three key words relating to the admissibility of evidence in a murder case: “executed” in the Georgia search warrant statute and “search” and “seize” in the U.S. Constitution.
“We did not any take any position about whether the evidence – obtained from a search of cellphone – should be suppressed,” Cunningham said. “All we were saying to the Court is that if you’re interested in what the word “executed” meant when the statute was passed or what “search and seizure” meant when the Fourth Amendment was ratified, here’s some information based on an empirical study of thousands of actual texts from those time periods.”
The journey to the Georgia Supreme Court actually began last spring when two students in Cunningham’s seminar, Megan Wells and Braford Poston, chose to write on the Nelson case.
After reviewing the work, Cunningham thought it merited presentation in the actual case. He brought in linguistics professor Jesse Egbert and Ph. D. students Amanda R. Black and Maria Kostromitina from Northern Arizona University to help shape the papers into a brief to be filed with the Georgia Supreme Court.
“We wouldn’t have moved forward if it wasn’t terrific work,” Cunningham said. “It’s the only case I know of where a law-linguistic amicus brief has been filed based on graduate student work. The fact that this started off as a student product is distinctive.”
In addition to originally arising from the work of students, Cunningham’s presentation during oral argument was also notable for the mere fact that it happened.
Parties may file amicus briefs with the courts for consideration. Motions to participate in oral argument are often filed along with the briefs, but such motions are rarely granted.
“Although amicus briefs based on analysis of original meaning have become more common in recent years, to my knowledge, the Nelson case is the first time that a law-linguistics amicus brief has been presented to an appellate court during oral argument,” Cunningham said.
While it was Cunningham’s first amicus brief presentation during oral argument, it was far from his first filing.
Along with Egbert, he also filed an amicus brief regarding the original meaning of the word “emolument” in the U.S Constitution in cases involving then-President Donald Trump that was cited in one of those cases by U.S. Court of Appeals for the Fourth Circuit. During his time at Washington University in the 1990s, research he published in the Yale Law Journal in collaboration with three linguists was cited by the U.S. Supreme Court in an opinion by former Supreme Court Justice Ruth Bader Ginsburg.
Since then, advances in technology have only made these kinds of outside contributions to the law more comprehensive.
“This kind of empirical research done in the Nelson case on the original meaning of words in the Constitution or statutes wouldn’t have been possible 25 years ago,” Cunningham said. “With the tremendous increase in computing power, and the decrease in expense, now data consisting of millions of words is just on the web. These are massive free databases that come complete with online analytic tools. I think this is one of the most exciting developments now taking place both for legal scholarship and effective advocacy.”
Written by Alex Resnak