THE COURT’S THIRST FOR DICTIONARIES.

I don’t have time to read the actual paper at the moment, but the abstract of “Oasis or Mirage: The Supreme Court’s Thirst for Dictionaries in the Rehnquist and Roberts Eras” by James J. Brudney and Lawrence Baum (Fordham Law Legal Studies Research Paper No. 2195644) looks interesting; it starts:

The Supreme Court’s use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. Among our findings are (a) while textualist justices are the highest dictionary users, purposivist justices invoke dictionary definitions with comparable frequency; (b) dictionary use is especially heavy in the criminal law area, serving what we describe as a Notice function; (c) dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court’s patterns of dictionary usage reflect a casual form of opportunistic conduct: the justices almost always invoke one or at most two dictionaries, they have varied individual brand preferences from which they often depart, they seem to use general and legal dictionaries interchangeably, and they lack a coherent position on citing to editions from the time of statutory enactment versus the time the instant case was filed.

I have the feeling they’ve talked about this issue at Language Log, but desultory googling has not turned up what I thought I remembered. At any rate, I’m not a bit surprised Supreme Court justices are as bad at using dictionaries as the general public. (Thanks, Paul!)

Comments

  1. I’m scandalized. Should a proper textualist not insist on using dictionary definitions current at the time of the relevant law’s passage?

  2. You’d think, wouldn’t you?

  3. They use dictionaries that don’t come with etymologies?

  4. narrowmargin says:

    What does it mean to be “bad at using dictionaries” and what would be “good”?

  5. Well, the paper actually points out the pitfalls of attempting to use dictionaries that were current at the time. For one thing, dictionaries tend to be conservative — they often just carry over or copy information from older dictionaries — so using dictionaries current at the time won’t necessarily give the most relevant definition.
    The paper is quite long and I only managed to skim through parts of it. There were quite a few examples mentioned, in some of which the judges took up dictionary definitions only to dismiss them as irrelevant or insufficient, a mere starting point for their discussions. My impression was that the situation wasn’t quite as dire as all that, but the potential for problematic uses of dictionaries is very real.

  6. Echoing Marc’s point, I would claim that for a field such as the legal profession an etymological dictionary *and* a (good) Latin dictionary should be consulted at all times whenever earlier laws/written legal documents are consulted.
    The exact meaning of a given English legal term of Latin origin may well prove impenetrable without knowledge of Latin itself, knowledge of which earlier generations of lawyers definitely had, and which probably colored their understanding of the meaning(s)/nuance(s) of latinate legalese words and phrases.

  7. A student paper that opens with dictionary definitions will turn out, most of the time, to be poorly-organized, thought-impoverished, beside the point and niggling. But the Justices wouldn’t be so lazy, would they?

  8. The problem here, I think, is that we’re approaching the question of dictionary use from a more-or-less rigorous linguistic point of view. The justices approach dictionaries the way they approach case law when citing it: they get to make judgments. They’re judges, after all. They are allowed to dismiss certain things if they think those things don’t jibe with the overall gist of their decision.
    Law, truth, and justice are three very different things.

  9. Who needs dictionaries when we have judges?
    “….under the First and Fourteenth Amendments, criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” (c) Justice Stewart, concurring opinion in Jacobellis v. Ohio case, 1964

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