LEGAL RESEARCH CORNER
BY NICK HARRELL
Lawyers use dictionaries, among other tools, to interpret constitutions, statutes, and regulations. In 2018, the U.S. Supreme Court, the U.S. Court of Appeals for the Tenth Circuit, and the Colorado Supreme Court all published dozens of opinions referencing dictionaries.1 For example, in Wisconsin Central Ltd. v. United States, both the majority opinion and the dissent cite to historical dictionaries to interpret language in the Railroad Retirement Tax Act. Lawyers also use specialty dictionaries to understand subjects and language outside of their expertise. This article provides tips for researchers on using and accessing dictionaries.
Lawyers debate the relative importance of dictionaries in legal interpretation. While some see the dictionary as one of many tools to use, others rely on dictionaries as the primary tool to interpret an ambiguous term. That debate is beyond the scope of this article, but the literature the debate has generated can help lawyers effectively deploy dictionaries in their work.
A good place to start is "A Note on the Use of Dictionaries," by Justice Scalia and Bryan Garner.3 In this short article, the authors describe their "primary principles" of using dictionaries, discuss some common challenges and benefits of using dictionaries, and provide a chronologically arranged bibliography of widely available English-language and law dictionaries. This article provides a solid starting point, but other articles more thoroughly discuss how to use dictionaries for legal interpretation.
For example, researchers using dictionaries to interpret the U.S. Constitution and the Bill of Rights could turn to Gregory E. Maggs's "A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution."4 In particular, the article lists common criticisms of dictionary use, provides responses to those criticisms, and concludes with a list of easily accessible Founding Era dictionaries. Researchers looking to impeach the overreliance on dictionaries could consult Ellen P. Aprill's "The Law of the Word: Dictionary Shopping in the Supreme Court,"5 Stephen C. Morrison's "The Dictionary is Not a Fortress: Definitional Fallacies and a Corpus-Based Approach to Plain Meaning,"6 or the often-cited Harvard Law Review note "Looking It Up: Dictionaries and Statutory Interpretation."7 The Mouritsen article also discusses corpus linguistics, a methodology that uses large databases of texts from a particular time frame to determine how individual words or phrases were used during that time frame. In addition to its criticism, the Harvard Law Review note analyzes which dictionaries the Supreme Court cites and how frequently. Researchers wanting a deeper dive into the history of dictionaries and the law might consult Roy M. Mersky's "The Evolution and Impact of Legal Dictionaries."8
Researchers can find more articles on dictionaries by searching Google Scholar,9 Google,10or their preferred legal research database for the titles of the above articles or keywords such as "dictionary," "legal," and "interpretation."
Tips on Dictionary Usage
Scholarship from the non-law disciplines can also provide insight into how lexicographers see their craft and pro ducts.11 Researchers should pay particular attention to articles discussing the pitfalls, benefits, and best practices of dictionary use.
Some of the tips from those articles echo good practices when conducting any type of legal research. One such tip is to consult front material in a dictionary to learn how the dictionary was compiled and arranged. From this, a researcher may learn whether die dictionary organized multiple definitions for a single word by popularity, date, or randomly. Researches may also learn whether die dictionary is descriptive or prescriptive12and how entries are arranged (e.g., does the entry for "et al." appear before or after the entry for "etch"). Similarly, researchers using online dictionaries should familiarize themselves with the search operators for the respective database.
When conducting research online or in print, researchers should determine when a resource was last updated. Likewise, researchers should determine whether they need a current dictionary or one from a different time period. In the Wisconsin Central Ltd. case, Justice Gorsuch chose dictionaries from the 1930s and 1940s to interpret the word "money" in the Railroad Retirement Tax Act of 1937.13Similarly, in Carpenter v. United States, justice...