Friday, December 17, 2010
Student "note" of interest: "War of the words: how courts can use dictionaries consistent with textualist principles"
This law review note was written by Duke 3L student Phillip A. Rubin (who is also working towards a degree in psychology and neuroscience) and is available at 60 Duke L.J. 167 (2010). From the abstract:
Dictionaries have an aura of authority about them - words mean what the dictionary says they mean. It therefore seems only sensible that courts seeking the plain meaning of language would look to dictionaries to find it. Yet to employ dictionaries as objective sources of meaning is to use them in a manner inconsistent with their creation and purpose. Previous scholarship has identified the Supreme Court's increasing reliance on dictionaries in construing statutes and constitutional provisions, and several articles have discussed different inherent problems with this practice. This Note builds upon that scholarship by bringing together the problems identified in prior articles, by identifying additional problems, and by proposing a set of best practices for courts seeking to use dictionaries in a manner consistent with textualist principles. Unless a principled approach is adopted, judges invoking dictionaries in textualist analysis are open to criticism for, at best, using dictionaries incorrectly - and, at worst, using them to reach their preferred outcomes.