I always encourage my students to look up any words that confuse them as they read opinions. But this 2011 New York Times article cites a few scholars who don’t think it’s the most judicious practice to undertake from the bench. Check out this excerpt:
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.”
[What a sec .... you mean dictionaries don't provide the exact meanings of terms? Holy sh*t...]
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.”
That reading follows from a common definition of the word “of.” See Webster’s Third New International Dictionary 1565 (2002) (“of” can be “used as a function word indicating a possessive relationship”); New Oxford American Dictionary 1180 (2d ed.2005) (defining “of” as “indicating an association between two entities, typically one of belonging”); Webster’s New Twentieth Century Dictionary 1241 (2d ed.1979) (defining “of” as “belonging to”).
Board of Trustees of Leland Stanford Junior University v. Roche Molecular Systems, Inc., 131 S.Ct. 2188, 2196 (U.S. 2011).
And that of course reminded me of another iconic moment in theoretical lexicography…
In a quick search I just saw that so far this year it looks like the Supremes have also used dictionaries to define “plaintiff,” “accept,” “continue,” “change,” “obtain,” and “clothes.” And here’s Justice Scalia concurring with his colleagues in the classic Scalia-esque manner (only Scalia can concur with you and call you absurd in the same breath):
Fourth, and finally, the Court seeks to evade Johnson and Leocal on the ground that “ ‘domestic violence’ encompasses a range of force broader than that which constitutes ‘violence’ simpliciter.” … That is to say, an act need not be violent to qualify as “domestic violence.” That absurdity is not only at war with the English language, it is flatly inconsistent with definitions of “domestic violence” from the period surrounding § 921(a)(33)(A)(ii)’s enactment. At the time, dictionaries defined “domestic violence” as, for instance, “[v]iolence between members of a household, usu. spouses; an assault or other violent act committed by one member of a household against another,” Black’s Law Dictionary 1564 (7th ed. 1999), and “[v]iolence toward or physical abuse of one’s spouse or domestic partner,” American Heritage Dictionary 534 (4th ed. 2000)…. Those definitions, combined with the absence of “domestic violence” entries in earlier dictionaries, see, e.g., Black’s Law Dictionary 484 (6th ed. 1990); American Heritage Dictionary 550 (3d ed. 1992), make it utterly implausible that Congress adopted a “term of art” definition “encompassing acts that one might not characterize as ‘violent’ in a nondomestic context….”
Gotta love it. At any rate, I suppose I don’t see any harm in looking up words — even simple words. But of course (as always) we have to keep in mind context and other factors affecting the word’s usage and effect (whether intended or unintended). What do you think? Are judges belittling themselves by looking up the word “of”? Or do creative lawyers sometimes leave judges with no choice but to reel us all back in to the basics?