Judges and dictionaries in the USA/Richter und Wörterbücher in den USA

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).

MA dissertation on legal translation (Louisiana law)/Louisianas Zivilgesetzbuch als Quelle für Terminologie

Rob Lunn is a legal translator in Spain who has been doing an MA in legal translation at City University in London. On his blog Legally Yours, he offers Abstract and download of my dissertation on legal translation.

While it specifically looks at using the Louisiana Civil Code as a source of ‘third-system’ translations for Spanish legal terms, it also explores some of the general issues involved in bridging the gap between legal systems in translation, including non-equivalence and the idea that different audiences might require different kinds of legal English.

When I was first teaching legal translation in the 1980s, before the days of much legal translation theory, I was happy to use Martin Weston’s An English Reader’s Guide to the French Legal System, above all because of its chapter on translation methodology, which listed ways to deal with a foreign term. I didn’t always agree with Weston’s conclusions, but he offered a good framework to think about the problem. Weston is also in Rob’s excellent bibliography.

There are two useful tables on terms in the appendix. It’s a good place to get an orientation on the problems discussed. Civil-law terms needing translation into English are obviously found in German too. For instance, there’s the consideration of whether one translates Dienstbarkeit (Spanish servidumbre) as servitude or easement.

The dissertation invites further research into the search for terminological equivalents – he concentrates on property law.

Elsewhere in the blog, Rob explains why the Louisiana Civil Code might be very interesting for its Spanish connections.

So, as the civil codes of both Spain and Louisiana were originally based on the same sources (i.e., Spanish law and the French Civil Code), there is bound to be an amount of shared or similar content in them, even in today’s revisions.

More surprisingly, though, is that the Louisiana Civil Code of 1825 was influential in Spain’s draft civil code of 1851, a predecessor to Spain’s first civil code, the Civil Code of 1889. According to Parise (2008), reference was made to 1,103 articles of Louisiana’s 1825 code in the comments to 1,992 articles of the Spanish draft in Concordancias, motivos y comentarios del Código civil español, the rationale for the draft written by its principal author, García Goyena.

He also recommends Rome and Kinsella’s Louisiana Civil Law Dictionary. You can get this as an ebook, incidentally.