Metalinguistic Negotiation in Legal Speech

This paper examines the role of metalinguistic negotiation in lawyers’ and judges’ speech about the law. A speaker engages in metalinguistic negotiation when the speaker uses a term to advocate for what that term should mean or how it should be used relative to context. While I doubt that legal practitioners employ metalinguistic negotiation in the ways that David Plunkett and Tim Sundell have proposed, it is plausible that practitioners do so in another way. Specifically, I contend that lawyers and judges sometimes use key terms in legal interpretation – e.g., ‘plain’, ‘meaning’, or ‘holding’ – to advocate for what those terms should mean or how courts should use them in adjudication. This suggests an intriguing role for metalinguistic negotiation in legal argumentation, one that could shed light on practitioners’ disputes in a range of cases dealing with constitutional, statutory, or common-law interpretation.