Tuesday, June 14, 2011

Justices turning more often to the dictionary

In a decision last week in Washington in a patent case, Chief Justice John G. Roberts Jr. puzzled out the meaning of a federal law by consulting the usual legal materials — and five dictionaries.
One of the words he looked up was “of.” He learned that it means pretty much what you think it means.
In May alone, the justices cited dictionaries in eight cases to determine what legislators had meant when they used words like “prevent,” “delay” and “report.” Over the years, justices have looked up both perfectly ordinary words (“now,” “also,” “any,” “if”) and ones you might think they would know better than the next guy (“attorney,” “common law”).
All of this is, lexicographers say, sort of strange.
“I think that it's probably wrong, in almost all situations, to use a dictionary in the courtroom,” said Jesse Sheidlower, the editor at large of the Oxford English Dictionary. “Dictionary definitions are written with a lot of things in mind, but rigorously circumscribing the exact meanings and connotations of terms is not usually one of them.”
J. Gordon Christy, a professor at the Mississippi College School of Law, surveyed the scene in 2006, and he did not like what he saw. “We are treated,” Mr. Christy wrote in The Mississippi Law Journal, “to the truly absurd spectacle of august justices and judges arguing over which unreliable dictionary and which unreliable dictionary definition should be deemed authoritative.”
New study
In the last two decades, the use of dictionaries at the Supreme Court has been booming.
A new study in The Marquette Law Review found that the justices had used dictionaries to define 295 words or phrases in 225 opinions in the 10 years starting in October 2000. That is roughly in line with the previous decade but an explosion by historical standards. In the 1960s, for instance, the court relied on dictionaries to define 23 terms in 16 opinions.
Justices Oliver Wendell Holmes Jr., Benjamin N. Cardozo and Louis D. Brandeis managed to make it through distinguished careers on the Supreme Court without citing dictionaries.
Learned Hand, widely considered the greatest judge never to have served on the Supreme Court, cautioned against the mechanical examination of words in isolation.
“It is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary,” Judge Hand wrote in a 1945 decision, “but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”
On May 26, Justice Stephen G. Breyer made a similar point in criticising Chief Justice Roberts for turning to a dictionary in a case about tough penalties for businesses that hire illegal workers. “Neither dictionary definitions nor the use of the word ‘license' in an unrelated statute,” Justice Breyer wrote, “can demonstrate what scope Congress intended the word ‘licensing' to have as it used that word in this federal statute.”
That same day in another case, Justice Breyer cited the online version of theOxford English Dictionary to help determine what Congress had intended when it used the word “prevent” in a federal statute. (An article in Brigham Young University Law Review last year speculated that Justice Breyer, who attended Oxford, may turn to the O.E.D. “out of nostalgia for his alma mater.”)
The authors of the Marquette study, Jeffrey L. Kirchmeier and Samuel A. Thumma, said the justices had never really said precisely what dictionary definitions were doing in legal opinions. They urged the justices to explain “when and how dictionaries should be used, how a specific dictionary should be chosen and how to use a dictionary for interpretation.”
The justices have cited more than 120 dictionaries, which is suggestive of cherry picking. “It's easy to stack the deck by finding a definition that does or does not highlight a nuance that you're interested in,” said Mr. Sheidlower, theO.E.D. editor.
Justices who try to discern the original meaning of the Constitution sometimes consult older dictionaries, which makes sense given that usage may have shifted over time.
In a 1995 concurrence, for instance, Justice Clarence Thomas looked to dictionaries from 1773, 1789 and 1796 to determine what the framers of the Constitution meant by “commerce,” a question now in play in the challenges to the recent health care law. (They meant, Justice Thomas found, “selling, buying and bartering, as well as transporting for these purposes.”)
The case for using dictionaries to determine the meaning of modern statutes is weaker, in part because the materials consulted by the people who compile definitions can skew the results. A 1988 survey of the lexicographic staffs of five publishers concluded that “the ‘polite press,' with The New York Times at its pinnacle” is “the single most powerful influence in constituting the record of the English lexicon.”
A decade later, Ellen P. Aprill, who teaches at Loyola Law School in Los Angeles, considered the implications of that finding in an article on “dictionary shopping in the Supreme Court.”
“It may also be a surprise to the Supreme Court justices who look to dictionaries as authorities in construing statutes,” Ms. Aprill wrote in the Arizona State Law Journal, “that in good measure they are interpreting law according to The New York Times.”

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