THE JOURNAL OF APPELLATE PRACTICE AND PROCESS.

• Author: Dysart, Tessa L.

WORDS MATTER

Words have been on my mind. I suspect that this is for several reasons.

First, I am writing a book, or rather trying to write a book. I spend an inordinate amount of time staring at my computer screen looking for the right words to convey certain concepts.

Second, I am working on a CLE presentation to judges on legal writing. Part of what I plan to talk about is how judges, at times, fail to follow their own advice on writing, a topic I blogged about recently. (1) Since this might be viewed as a sensitive topic, I am thinking about how best to present it respectfully to my audience, while still getting my point across.

Third, my two junior associates keep me on my toes when it comes to words. In the last few months, I have heard my two-year-old repeat words I would rather she not say, and I have had to apologize to my four-year-old for using the "s" word--"stupid."

Fourth, and finally, I have been thinking about this issue of the Journal and the three articles that it contains that focus on words and how those words are interpreted. I didn't plan to have an issue that centered so heavily on interpretation, but I am happy that we ended up with such complementary articles.

The first article on words and interpretation is from Judge Randall H. Warner. Building on two earlier articles, (2) one of which was published in the Journal, Judge Warner discusses the difference between statutory application and statutory interpretation. He explores whether judges or juries should be deciding "whether a statute applies to the circumstances of a particular case," (3) and he posits a standard for distinguishing between questions of statutory application, which are suited for the fact-finder, and questions of statutory interpretation that call for a legal determination.

Next, Professor Joseph Kimble takes a critical look at the Michigan Supreme Court's overuse of dictionaries to ascertain ordinary meaning. He argues that dictionaries should play a limited role in judicial decision making, and he points to fifteen examples of how the Michigan Supreme Court's use of dictionaries has been arbitrary and narrow. (4)

Justice D. Arthur Kelsey provides a different look at interpretation. He explains why the "Historical Tradition Model" of interpretation, which "requires the judge to look at the text of the Constitution, and if it is unclear,...discover not what the text ought to mean but what it did mean to those who wrote the words and, more...