While legal academia is no stranger to questions of linguistics, it has been estranged (until now) from the practice of adopting linguistic theory and methods. In Part 2 of our conversation, Alex Walker and I discuss the implications of applying optimality theory (OT) to law. By utilizing the formalism of OT, Alex argues our entire legal system and conceptualization of law will change for the better. Rather than conceptualizing law as a set of rules, Alex argues we should view law as a tapestry of ordered preferences. For example, during the 51 years that Roe v. Wade dictated the “rules,” anti-abortion laws were never repealed or struck down, they were simply suppressed. Our system has never been about any given rule, but rather about the multitude of preferences continually shifting in their hierarchy. From AI judges to forum shopping, OT has something to offer the legal system both practically and Platonically.

Somewhat ironically—perhaps paradoxically—I’ve found that the application of OT to law pushes legal questions further away from linguistic ones. If law is about consequences and outcomes and why those outcomes exist, then it’s not really about the semantic change of a singular noun or the bounds of an entailment condition, right? And if law’s fulcrum isn’t language, then perhaps our legal outcomes—our laws, current precedent, and so on—shouldn’t be predicated upon questions of linguistics or deontological “rules.” But in order to come to that conclusion, perhaps we need the formalism of a linguistic theory.

Watch a short video on optimality theory here

Read about optimality theory

Alex Walker’s website

Erie Railroad Co. v. Tompkins

Asking ChatGPT for the Ordinary Meaning of Statutory Terms

Stare Decisis

The history of Arizona’s Civil War-era Abortion Ban

Center for Law, Brain & Behavior