FOR A NUMBER of years now I have been advocating a One Dictionary policy for the nation's courts.
This effort began after a local judge decided a case on the basis of the definition of a word he found in a cheap, out of date dictionary. But it wasn't just low-level judges who misused dictionaries. A couple of years ago, Justice Antonin Scalia used a 1934 definition to decide a case involving the definition of a word in a 1983 statute.
Knowing of my interest, Bill Reynolds of the University of Maryland Law School sent me an article from the American Bar Association Journal by David O. Stewart.
Stewart wrote that from Jan. 1, 1992, through May 17, 1993, the justices cited dictionary definitions 54 times in 38 cases -- drawing on 23 dictionaries. About half the dictionaries used were legal ones and about half were of general usage.
Why is this a problem? Because dictionary definitions differ. What if the congressional staff members who actually wrote the legislation defined a key word on the basis of, say, the 1993 Merriam-Webster Tenth Collegiate and then the U.S. District Court judge who ruled on the first challenge to the law relied on the Ninth Collegiate (1983) and a court of appeals used that firm's third unabridged (1961) and the Supreme Court the 1934 second unabridged?
Or what if the justices used several Merriam Websters, and Random House and American Heritage dictionaries from different years? Which is exactly what Stewart found them doing.
(The legal profession seems to be settling down to one legal dictionary, Black's Law Dictionary. Emily Greenberg of the University of Baltimore Law Library says students and professors there prefer it. David Grahek of the Thurgood Marshall Law Library at the University of Maryland agrees, and believes that is because it's updated more frequently than the others. David Stewart says Supreme Court justices rely on it almost exclusively.)
Stewart says justices are using general usage dictionaries much more now than they did in the past. He's not happy about this. He quotes Judge Learned Hand, perhaps the most influential, respected non-Supreme Court judge of the century, who said, "It is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary."
That sounds good, but if as Stewart's research indicates, dictionaries are used much more now than than in the past, there must be a reason. He and others think it is that laws are more sloppily written now, because there are so many of them, and that members of Congress prefer ambiguity when dealing with the sorts of sensitive subjects so many modern laws do.
Which means jurisprudence will rely on "the dictionary" more and more -- and, therefore, there ought to be some attempt made to get all judges singing from the same hymnal, so to speak.