The topic of judges and dictionaries was the subject of an earlier post.

Now a new paper has appeared on the subject: Oasis or Mirage: The Supreme Court’s Thirst for Dictionaries in the Rehnquist and Roberts Eras, by James J. Brudney and Lawrence Baum. From the beginning of the abstract:

The Supreme Court’s use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. Among our findings are (a) while textualist justices are the highest dictionary users, purposivist justices invoke dictionary definitions with comparable frequency; (b) dictionary use is especially heavy in the criminal law area, serving what we describe as a Notice function; (c) dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court’s patterns of dictionary usage reflect a casual form of opportunistic conduct: the justices almost always invoke one or at most two dictionaries, they have varied individual brand preferences from which they often depart, they seem to use general and legal dictionaries interchangeably, and they lack a coherent position on citing to editions from the time of statutory enactment versus the time the instant case was filed.

Via the UKSC Blog, Dictionary: A way to define an argument – actually an article by Robert Barnes in the Washington Post, reprinted. It discusses the 94-page paper and the problems of the way most judges use dictionaries – simply ransacking them to find a definition that confims what they already believe. I liked this:

Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit wrote last year that “dictionary definitions are acontextual whereas the meaning of sentences depends critically on context, including all sorts of background understandings.”

(a link is given but it doesn’t work).