BYU Law Professor Tom Lee’s Amicus Curiae Brief Cited in Pulsifer v. United States Dissent

By Maren Hendricks March 19, 2024

Elementary school teachers rejoice! In a world of sentence-fragment texts, memes, and emojis, grammar still matters. The conjunction “and” was the crux of the US Supreme Court’s recent decision in Pulsifer v. United States, in which the Court determined that a criminal defendant was ineligible for safety-valve sentencing relief due to his meeting one of a series of disqualifying criteria. These criteria, set forth in 18 USC § 3553(f)(1), connect disqualifying features of a defendant’s criminal history with the conjunction “and.”  The question posed to the Court: Does Congress’s use of “and” mean that each disqualifying element must be absent, or does “and” really mean “or,” such that the presence of any element is disqualifying? Corpus linguistics, which studies language in real-world texts, is helpful in this analysis, and Justice Gorsuch cites this research in his dissenting opinion.

The Court, in a 6-3 decision authored by Justice Kagan, held that a criminal defendant must satisfy each of the sentencing provision’s criteria – each disqualifying element must be absent – to be eligible for safety-valve sentencing relief. Justice Gorsuch’s dissent argues that Congress uses the word “or” when it intends any element in a series to be determinative to an outcome rather than requiring all elements to be satisfied. His argument cites BYU Law professor Thomas R. Lee’s amicus curiae brief, which is grounded in corpus linguistics and reports a study in which participants understood a sentence structured with disqualifying conditions separated by “and,” to trigger ineligibility only if all conditions are met.

BYU Law has been a pioneer in corpus linguistics, launching its Law and Corpus Linguistics Technology Platform in 2018 and incorporating this methodology into their curriculum. BYU Law’s corpora offers free resources for judges, scholars, and professionals seeking an empirical approach to problems of linguistic ambiguity. BYU scholars including Professor Lee continue to develop the corpora, elevating corpus linguistics as an essential tool for developing and interpreting legislation and case law.