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Wednesday, June 15, 2011

Courts - "Dictionary Citations by SCOTUS Justices Rise Sharply"

Adam Liptak has a great column yesterday in the NY Times about Supreme Court justices citing dictionary entries as authority. Some quotes:

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.” * * *

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.” * * *

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.”

Posted by Marcia Oddi on June 15, 2011 08:51 AM
Posted to Courts in general