Notes, Words, Law, and Looking It Up

Kevin Werbach, internet gadfly and all-around nice guy, wrote a student Note in the Harvard Law Review entitled Looking It Up: The Supreme Court’s Use of Dictionaries in Statutory and Constitutional Interpretation. Since then, Eugene Volokh’s discovered that it’s become one of the most-cited Notes he could find, with over 100 academic citations. Especially impressive since one of its core arguments is against blindly accepting the authority of dictionaries. An outline:

This Paper argues that the Supreme Court should exercise greater sensitivity in its use of dictionaries. Part I demonstrates the increased prominence of dictionaries in Supreme Court opinions during the last several years. This shift is too substantial to ignore or dismiss as a coincidence; some underlying factors must explain the trend. Part II therefore situates the Court’s use of dictionaries within a broader context of changed attitudes toward statutory interpretation and the role of judges. Dictionaries are not ideal tools; they provide a range of definitions that bear an imperfect relationship to context and meaning. The choice of the dictionary as an interpretive tool requires substantive decisions by judges, and introduces the antecedent assumptions of dictionary editors into the legal process. Part III suggests that these and other considerations gravely limit the value of dictionaries to statutory and constitutional interpretation, and that the Court’s current unselfconscious attitude towards the reference books greatly exacerbates these problems. The paper concludes in Part IV with suggestions for more rigorous and more appropriate use of dictionaries.

I love dictionaries and the people who make them, but I’m glad that are strong arguments against their being pressed into duty as legal references.