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Defining decisions on legal lexicon

Little guidance exists on common practice of citing dictionaries in court cases.

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A single word might determine the fate of a case before one of Indiana’s highest courts, so it’s no surprise that judges will often turn to dictionaries to help interpret what a word and statute might mean.

But judges face a daunting challenge in being the wordsmiths responsible for providing context for what the law means and how it’s applied in practice and principle. Despite its regularity, dictionary usage isn’t something everyone thinks is good practice and little guidance exists for when and how courts rely on dictionaries.

“Dictionaries are tools that provide effective guidance for the beginning of the process of defining terms – not the end – and lawyers and judges have other tools to give more precise definitions in context,” says a recent Marquette Law Review article written by a New York law professor and Arizona juvenile court judge. “Otherwise, those responsible for dispensing justice would defer too much to the dictionary author.”

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In the Marquette Law Review article entitled “Scaling the Lexicon Fortress,” the authors examined the past decade’s activity at the Supreme Court of the United States and found the justices had used dictionaries to define 295 words or phrases in 225 opinions between October 2000 and 2010. That’s in line with the 1990s that saw similar numbers and accounted for half of all the court’s dictionary-citing opinions in two centuries. By comparison, the 1980s had about 100 opinions defining 125 terms, while the 1960s had 16 opinions using the dictionary to define 23 terms.

The justices once relied on dictionaries mostly to refresh their memories about word meanings or to provide potential meanings the court could use based on statutory interpretation. But that’s evolved in cases in the past decade to the point where dictionary definitions have sometimes driven the decision more than policy or context.

The practice has drawn opposition from some nationwide, such as the Federal Circuit Court of Appeals that wrote in a decision that dictionaries “aim not to select or give meaning to a word or phrase but to report the meaning already established and commonly understood.” State courts in Tennessee have also criticized dictionary use as an imperfect interpretive tool, and the SCOTUS justices have, on occasion, criticized each other for too readily relying on dictionaries.

Legal scholars cite potential problems in using dictionaries for legal reasoning, such as arbitrary and possibly biased selection of dictionaries by judges, and lack of determination as to the qualifications it might have.

“Dictionaries, despite their allure as seemingly perfect arbiters of word meaning, do not reach the end goal of word definition,” the Marquette Law Review article says.

The study says that despite the growing use of dictionaries through the years, the SCOTUS had offered little guidance for when and how dictionaries should be used as a source. That leaves litigants, lawyers, and other courts to gather what principles they can from bits and pieces scattered through various court rulings.

Indiana

In the state-level appellate courts, dictionary use is a common occurrence. A LexisNexis search for the past two years shows the Indiana Supreme Court included the word “dictionary” in 16 opinions while the Court of Appeals used the word 197 times. A majority of those cases appear to have used Black’s Law Dictionary, though some include more than one reference and the courts fluctuate between legal, specialized, or standard dictionaries based on the case and issue at hand.

Sometimes, the exploration focuses on word tense in trying to gauge legislative intent while other times it’s the word itself – such as whether lawmakers used “shall” or “may” in crafting a statute.

Attorney Joel Schumm, a law professor at Indiana University School of Law – Indianapolis, says the courts here have made decisions in recent years about what type of dictionary to rely on in certain situations. He pointed to one of his cases, Richard Brown v. State, No. 49S05-0612-CR-494, where Schumm argued a statutory term on criminal confinement was unconstitutionally vague and that it wasn’t appropriate to cite Black’s Law Dictionary as the state had. The justices agreed, writing that they preferred to consult standard dictionaries rather than specialized legal dictionaries for cases hinging on how ordinary people understand the law.
 

Joel Schumm mug Schumm

“Different dictionaries say different things, and even the same dictionary often has multiple meanings for a term,” Schumm said, noting that other cases have hit on that point as well. “When it comes down to a single word, sometimes having the right place to find a definition makes the difference.”

“It’s not unusual at all for parties to resort to dictionaries and for courts, in turn, to resort to them in trying to define words,” said Indianapolis appellate attorney Bryan Babb, an avid court watcher who has cited dictionaries in his own briefs. “There’s a statutory principle where statutes will be given their plain and ordinary meaning, and so the courts will do that when the Legislature doesn’t specifically define a word.”

More interesting than a traditional legal or standard dictionary, though, is the use of Wikipedia as a dictionary source in legal writing, Babb said. He pointed to one of his cases where he used a Wikipedia definition specifically because the state’s intermediate appellate court had already mentioned it.

“I couldn’t find any other dictionary to aptly define it and would’ve needed multiple sources to adequately explain that word and my argument,” he said. “So I used an opinion where the Court of Appeals had done that… if it’s OK for the Court of Appeals in deciding a case, then I figured it’d be OK for me to use in a brief.”

In the end, the judges, lawyers, and legal scholars reviewing or writing the briefs and opinions say judicial interpretation comes down to more than what a dictionary says.

The Marquette Law Review article sums it up well: “As noted more than 150 years ago, ‘the lexicographer is a historian, not a law giver.’”•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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