June 13, 2011
Dictionaries as Legal Authority?
As Adam Liptak points out in his NYT column, the use of dictionaries in United States Supreme Court opinions is "booming." Liptak refers to Justice Breyer's criticism of any reliance on dictionary definitions of the word "license" in his dissenting opinion in Chamber of Commerce v. Whiting last week, even as Breyer's opinion for the Court in Fowler v. United States, issued the same day, refered to the dictionary (albeit the OED) to determine the meaning of "prevent."
Liptak quotes Professor Jeffrey Kirchmeier of CUNY School of Law (pictured right) and Samuel Thumma for their recently published "study" in Marquette Law Review, Scaling the Lexicon Fortress: The United States Supreme Court’s Use of Dictionaries in the Twenty-First Century, 94 Marq. L. Rev. 77 (2010), available on ssrn and from the law review. The article by Kirchmeier and Thumma builds on their previous work, Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court’s Use of Dictionaries, 47 BUFF. L. REV. 227 (1999) and Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Remains a Fortress: An Update, 5 GREEN BAG 51 (2001) (both available on ssrn).
For originalists, resort to earlier dictionaries may seem to make sense - - - word usage changes, after all - - - but as Kirchmeier and Thumma point out, dictionaries were once devoted to prescriptive meanings rather than actual usage. Moreover, not all dictionaries are created equal, then or now. Kirchmeier and Thumma demonstrate that there is a great deal of randomness in dictionary choices by the Justices.
The 2010 article and the previous ones employ a mix of theoretical analysis and quantative analysis. However, the pieces also include amazing appendices. The 2010 article analyzes the approximately 300 words/phrases the Court cited a dictionary to define from the 2000-1 Term to the 2009-10 Term. It includes three appendices of cases from the United States Supreme Court: (1) words and phrases defined by the Court (Appendix A); (2) Justices citing to dictionaries, including their frequency of use and which dictionaries are used (Appendix B); and (3) dictionaries cited by the Court (Appendix C).
Ultimately, Kirchmeier and Thumma argue that the Court should clarify some standards for the use of dictionaries. Until then, Kirchmeier and Thumma provide excellent analysis - - - and useful fodder for scholarship and teaching.
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In case anyone is interested in a little comparative analysis, Adam Liptak's article has spawned a couple of reactions from Ireland, available here [http://bit.ly/mNxyZs] and here [http://bit.ly/lZ1EEv]. (Both are by bloggers — I'm one of them — who have spent significant time in the U.S.)
Posted by: Paul MacMahon | Jun 14, 2011 8:05:50 AM