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February 13, 2024

What’s in a Name: Dictionaries as Interpretive Authority

By: Jane Dall Wilson

These days, it is not uncommon for lawyers and judges alike to cite a dictionary as support for how a word or phrase is interpreted.  But that is an evolving phenomenon and not without peril.

At the panel presentation, “Lexicon Is Not a Fortress,” at the AJEI November 2023 Summit, panelists Judge Samuel A. Thumma, Professor James Brudney, and Kirsten Castañeda, discussed the virtues and vices of reliance on one of our most basic reference sources—the dictionary.  The panel discussion was vibrantly moderated by Judge Christopher J. McFadden, Georgia Court of Appeals.  In a spirited discussion that surveyed the use of the dictionary in Supreme Court opinions, cautionary notes about the limitations of the interpretive source, and practical considerations, the panel exposed the complexity behind the deceptively straightforward reference to a dictionary definition in analyzing legal issues, particularly in the context of statutory construction.

Joking that he had spent far too much time studying dictionaries, Arizona Court of Appeals Judge Thumma reflected on his extensive research on the United States Supreme Court’s historical use of dictionaries, including 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); Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Remains a Fortress: An Update, 5 GREEN BAG 51 (2001); and Jeffrey L. Kirchmeier & Samuel Thumma, Scaling the Lexicon Fortress: The United States Supreme Court’s Use of Dictionaries in the Twenty-First Century, 94 MARQ. L. REV. 77 (2010).  That research illuminated Judge Thumma’s initial remarks on the increasing prevalence of courts’ reliance on the dictionary as a source of meaning and interpretation, focusing specifically on opinions of the United States Supreme Court.

Judge Thumma shared that the first published reference to a dictionary consult by the United States Supreme Court occurred in Patapsco Ins. Co. v. Coulter, 28 U.S. 222, 230 (1830), where the Court relied on “[t]he best French dictionary we have” to translate “the French word ‘prevariquez,’ which can only be translated into ‘acting without due fidelity to their owners.’” It was not until 55 years later that the Court justified its consult of and citation to a dictionary. Observing that non-technical words of “common speech” lie “within the judicial knowledge” as a “matter of law” and therefore consulting Webster’s Dictionary to define “mineral,” “ore,” and “mine,” the Court determined that “importations of iron ore in question” “were properly subjected to a duty of twenty percent ad valorem” because the iron ore was “a mineral substance in its crude state not otherwise provided for.”  Marvel v. Merritt, 116 U.S. 11, 12 (1885).

Judge Thumma further shared that in modern times, the Court’s use of dictionaries to define terms has skyrocketed, rising from 12 cases in the 1950s defining 21 terms to 225 cases in the 2000s defining 295 terms.  And his research further indicates that some Justices cite dictionaries more than others. Justice Thomas cited a dictionary 4.1 times per term in opinions from 2000 to 2010 while Chief Justice Roberts and Justice O’Connor cited a dictionary only 1.2 times per term over the same period.

The panel elaborated on the many considerations surrounding dictionary references—which dictionary, which edition, which definition, and which time period of usage? Judge Thumma noted that, for general usage words, the Supreme Court most often cites Webster’s Third New International Dictionary, but for legal terms, Black’s Law Dictionary. Given these variables, the panel cautioned against citing blindly to a definition in a dictionary without some consideration of alternative definitions for the same word and the authoritativeness of one dictionary over another.  Moreover, beyond Black’s perhaps, dictionaries are not inherently designed for legal research.

With the panel having established the vagaries of citations to dictionary authority, Professor Brudney next led a discussion exemplifying how and why dictionary definitions may provide incomplete guidance for interpretive questions.

Professor Brudney illustrated the point by focusing on the term “any” in statutory construction.  Noting that “any” has immediately ambiguous potential with multiple competing definitions, he further showed how the word can be given different meaning even within the same statute.  Indeed, Supreme Court authority illustrates this point with respect to narrow or broad construction of various provisions for Federal Tort Claims Act immunity.  Compare Dolan v. Postal Service, 546 U.S. 481 (2006) (imposing a narrow construction on  “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter” in 28 U.S.C. § 2680(b) to hold that the referenced immunity does not bar a trip and fall claim related to negligent placement of a package) with Ali v. Federal Bureau of Prisons, 552 U.S. 214 (2008) (applying an expansive construction of “any other law enforcement officer” to hold that actions related to loss of property within the prison system were barred under the immunity in 28 U.S.C. § 2680(c) for “detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer”). In the space of two years, whether “any” really meant “any” was given different construction by the Court in the service of broader interpretive considerations.

As Professor Brudney further explained, the term “any” provides a particularly strong example, with 302 instances of “any,” greater than ten per page, in the 1964 Civil Rights Act, and 1774 instances of “any,” approximately two per page, in the 2010 Affordable Care Act. Sole reliance on a dictionary definition of “any” to interpret such statutes would likely be inherently flawed.

Further panel discussion established that dictionary definitions—by nature severed from context—cannot replace the human task of contextualization that often informs meaning and is therefore necessary for thorough judicial interpretation and advocacy.

Texas appellate litigator Kirsten Castañeda also offered her advocate’s view on this interpretive issue, emphasizing that due care is necessary in approaching the use of and reliance upon dictionaries as authority.  Castañeda emphasized that, in her own practice, she generally finds consulting a dictionary to be helpful in conjunction with other interpretive guidance, but not as a standalone resource.  Likewise, similar treatment by the courts seems appropriate.

Castañeda offered practical input on scholarly research, noting the dilemma that arises if definitions change over time in subsequent dictionary editions. Which definition can or should you cite? Do you need to disclose the updated definition? And what is an advocate to surmise and argue if a once helpful legal definition in Black’s becomes less helpful in a subsequent edition? Does that signal a change or refinement in the definition or is it simply a restatement that does not supersede the prior version? Is it better to avoid referencing the dictionary definition in such a scenario? The topic presents many questions with few established answers but virtually limitless opportunities to exercise good judgment and effective advocacy.

In all, the panelists crystalized the evolution and complexity of a topic that might nearly be taken for granted in today’s world of legal interpretation. To add to the debate, John Ralston Saul, Canadian author, has observed, “Dictionary—opinion expressed as truth in alphabetical order.” As jurists and advocates approach linguistic interpretative questions, a quick reference to Webster’s—whichever edition happens to be on the shelf—is likely a more appropriate place to start than to end.

Jane Dall Wilson

Faegre Drinker Biddle & Reath LLP

Jane Dall Wilson is an appellate practitioner and business litigation partner at Faegre Drinker Biddle & Reath LLP in Indianapolis. She is a summa cum laude graduate of both Hanover College and Notre Dame Law School and clerked for Judge Ripple on the Seventh Circuit. 

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