Language and the Law

Language  and  the  Law     Dennis  Baron   1.  Dictionaries  and  the  Law   The law turns on the meaning of words, their definition, the weight we ...
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Language  and  the  Law     Dennis  Baron  

1.  Dictionaries  and  the  Law   The law turns on the meaning of words, their definition, the weight we give them. But the meaning of words is ever-changing, ever in dispute, and so sometimes the courts step in to decide what the words of a law, or a contract, or some other form of expression that’s become the subject of a legal dispute, actually mean. We see this in two recent and highly-controversial U.S. Supreme Court cases which decided that two major First Amendment protections—freedom of speech and freedom of religion—apply to corporations as well as people. Citizens United v. Federal Election Commission (2010) challenged the legal limits placed on corporate political spending. For some time now, the courts have recognized that campaign spending by individuals is a form of political speech, and therefore protected by the First Amendment. But the conservative activist group Citizens United argued that its corporate right to free speech was being infringed by the McCain-Feingold election reform law, which limited how much the organization could spend to distribute a 2008 documentary it made opposing Hillary Clinton’s presidential candidacy. The Supreme Court ruled five-to-four that corporations, including nonprofits like Citizens United, are entitled to the free speech protections of the First Amendment. More recently, Burwell v. Hobby Lobby Stores 573 US ____ (2014) challenged the Affordable Care Act requirement that employee health insurance cover contraception. Hobby Lobby argued that its owners’ religion prohibited abortion, and since some forms of contraception cause abortions, having to pay for an employee health care plan that covered contraception would force them to violate their religious principles, principles that are protected by the First Amendment. Here, too, the Supreme Court ruled five to four that corporations enjoy freedom of religion, and so federal law cannot require Hobby Lobby to pay, even indirectly, for medical procedures the company deems sinful. Citizens United and Hobby Lobby hinge in part on the definition of person in federal law to include corporations. According to the Dictionary Act, the first law in the U.S. federal code, the word “person” include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals. 1 U.S.C. 1. This definition as a legal fiction. Corporations don’t cry, or get sick, or drive too fast. But they do enjoy some of same privileges and protections as “natural” persons, or

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as they are more commonly known, human beings, including the right to own property, to enter into contracts with others, and to sue if they are wronged. Not everyone wants to extend all the personal protections of the Bill of Rights to corporations. Justice Ginsberg observes in her dissent in Hobby Lobby, “the exercise of religion is characteristic of natural persons, not artificial legal entities” (Burwell v. Hobby Lobby, dissent, 19). Even Justice Alito, in his majority opinion in the case, sidesteps the legal fiction that corporations are persons, emphasizing instead that corporations are nothing more than the people who run them: [I]t is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. . . . When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of [the shareholders, officers, and employees associated with them]. . . . Corporations, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all. [Burwell v. Hobby Lobby Stores, opinion, 19] It remains to be seen what the long-term effects of the Citizens United and Hobby Lobby decisions will be. Critics charge that the Court is paving the way for corporations to buy elections and to impose their owners’ religious beliefs on employees. But sometimes even the Supreme Court’s more conservative justices don’t think corporations enjoy the same rights as people. In Federal Trade Commission v. AT&T (2011), which we’ll come back to later in this chapter, the Court ruled unanimously that even though corporations like AT&T are persons under the law, they aren’t entitled to the constitutional protections of personal privacy.  

The  dictionary  court  of  last  resort   Federal law defines corporations as persons, but many laws don’t define their terms, and so like most people, judges turn to actual dictionaries when they’re not sure what a word in a statute means. Or they turn to dictionaries when they know the meaning but need some confirmation. Or—and here’s where the legal community differs from most other dictionary users—they turn selectively to those dictionaries that define a word the way they want it defined, rejecting definitions they don’t like. Supreme Court decisions illustrate the ways in which dictionaries can serve the law. Twenty years ago, Kevin Werbach reported that over the course of two centuries, Supreme Court opinions cited dictionaries some 664 times, though the Court didn’t rely much on dictionaries in its earlier years: dictionary definitions appear only twenty-three times in opinions written before the Civil War. A recent study confirmed that the justices are relying on dictionaries more than ever to determine the meaning of our laws (Kirchmeier and Thumma 2010). And to illustrate the Court’s growing reliance on lexicography, the New York Times reported that Chief Justice Roberts looked up words in five different dictionaries while he was

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writing an opinion in a recent patent case (Liptak 2011). When was the last time you looked up a word in more than one dictionary? It turns out that five dictionaries may not always be enough. In Taniguchi v. Kan Pacific Saipan [10-1472], decided in 2012, the Court cited a record fourteen dictionaries. Justice Samuel Alito marshaled ten dictionaries in his majority opinion to prove that the word interpreter means someone who translates speech. And in her dissent, Justice Ruth Bader Ginsburg found four dictionaries offering the broader view that interpreter can refer to a translator of written documents as well. Complicating things even more, both justices used the same definitions in two dictionaries, Webster's Third and Black’s Law Dictionary, to bolster their opposing claims about the meaning of interpreter. Why all this consulting of dictionaries by our legal interpreters? When a word is not defined in a statute, we’re supposed to give that word its ordinary, customary, or plain meaning. But the ‘ordinary meaning’ of words is often in dispute, as we can see from the many lawsuits filed each year that are based on contradictory interpretations of words and phrases. Courts have been asked to decide whether tomatoes are fruits or vegetables (they’re vegetables); whether an airplane is a motor vehicle (it is not); whether X-Men action figures are toys or dolls (they are toys); or whether a given fastener is a bolt or a screw (it turned out to be a screw). One common way to check ordinary meaning is to go to the dictionary, and that’s frequently what lawyers and judges do. According to Werbach (1994), the use of dictionaries in legal opinions rose significantly after the 1970s, with dictionary lookups becoming more central to the outcome of cases, as when Justice Alito argued in Taniguchi that the definitions he cited prove that interpreter means ‘a translator of speech,’ even though the word may sometimes refer as well to ‘a translator of writing.’ The problem with citing dictionaries as legal evidence is that dictionaries don’t dictate what words mean. Instead, they record what people take them to mean. Lexicographers know that people may use words to mean a variety of things, depending on the context, and they may use them inconsistently as well. When words are used in conflicting ways, dictionaries will offer conflicting definitions that also need interpreting. But as Justices Alito and Ginsburg would surely agree, that’s a different meaning of interpreter: not one who translates, but “one who explains or expounds” (Merriam-Webster online dictionary, sense 1b). A  literal  paradox   Going to the dictionary can present problems for the courts. For example, speakers of English use the word literally to mean both ‘literally’ and ‘figuratively,’ which is its opposite. That’s the sort of lexical ambiguity that would be intolerable in a statute or other legal document, but in ordinary use, the context in which a word occurs tells us clearly whether literally is used in one sense or the other. Although logicians and language purists insist that literally can only mean ‘according to the letter, actually, in a strict or narrow sense,’ as in, She took his remarks literally, dictionaries record multiple meanings for literally. MerriamWebster’s online dictionary tells us that literally can also mean ‘virtually, in effect,’ as in, He was literally climbing the walls, adding this observation: “some people take sense 2 [the figurative use of literally] to be the opposite of sense 1.”

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The American Heritage Dictionary (5e) defines literally as ‘word for word, or in a literal or strict sense.’ But the editors acknowledge in a usage note that “for more than a hundred years” people have also used literally figuratively, as an intensifier.” And the Oxford English Dictionary also recognizes the common, intensive or hyperbolic sense of literally, labeling it as “colloquial.” But although all three dictionaries indicate that the ordinary meaning of literally is ‘in a strict or literal sense,’ a search of contemporary databases of English suggests that literally more frequently serves either as an intensifier or in the paradoxical sense of ‘figuratively.’ As a result, looking the word up in a dictionary might not be much help in resolving a lawsuit whose outcome hung on the meaning of literally. Sometimes the courts admit that dictionaries don’t make law. In Nix v. Hedden (149 U.S. 304 [1893]), the Supreme Court had to reject evidence from three dictionaries, Webster’s, Worcester’s, and the Imperial Dictionary, in order to define the tomato as a vegetable, not a fruit. At that time, there was no tariff on imported fruit, but an importer of vegetables had to pay a 10% duty. Nix imported a shipment of tomatoes from the West Indies and was charged the vegetable tariff, which he later tried to recover in court. Nix presented three dictionary definitions and two expert witnesses to demonstrate that tomatoes were fruits. Noah Webster defined tomato as “A plant and its fruit, a species of Solanum. It is called sometimes the love-apple” (An American Dictionary of the English Language, 1828). Joseph Emerson Worcester, who worked for Webster and later became his chief rival in dictionary making, copied the essentials of that definition in his Universal and Critical Dictionary of the English Language (1847). And the Imperial Dictionary (1847-50), one of the few to include a New World etymology for this New World plant (“Mexican tomatl”), adds information about the cultivation of the fruit, but nothing to support the claim that tomatoes are vegetables.

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But the Court disagreed. In his opinion, Justice Horace Gray did not find dictionary evidence relevant: “Dictionaries are admitted, not as evidence, but only as aids to the memory and understanding of the court.” Gray, who three years later would side with the majority in Plessy v. Ferguson, the notorious case which justified “separate but equal” racial facilities, did not need his memory aided in this case, since the popular meaning of tomato seemed to him beyond dispute: Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips,

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beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert. In deciding Nix, the justices rejected the dictionary evidence provided by the petitioner, basing their decision instead on ordinary usage. Had the Court consulted the recently-published Century Dictionary (1889), the most scientific unabridged dictionary of the day, they would have learned what they already suspected, that a tomato is really two things in one. It’s “the fruit of a garden vegetable, Lycopersium esculentum . . . widely cultivated for its esculent fruit.” But what the dictionaries of the day failed to tell them was what they already knew, that in ordinary usage, a tomato was a vegetable.

centurytomato.jpg According to the Century Dictionary, a tomato is both a vegetable (the tomato plant) and a fruit (the seed-bearing edible part of the plant). It’s likely that the justices would have had to look up the meaning of esculent, which means ‘edible.’

The  dictionary  says  .  .  .     As lexicographers have always known and legal scholars are gradually acknowledging, although dictionaries do a good job of defining words, recognizing multiple and even conflicting senses, they don’t always give us the information we need in order to interpret or disambiguate the law. Were the meaning of tomato to come before the Court today, even the Oxford English Dictionary, which had not yet reached the letter T by the time of Nix, would come up short. The most comprehensive historical dictionary of English makes no mention of the common opinion that tomatoes are vegetables. Even so, dictionaries as a class have a great deal of popular authority, and it shouldn’t surprise us that this authority carries over into the courtroom. The common phrase “the dictionary says,” used conversationally to preface a definition, suggests that there’s only one dictionary, like the sun, or the law. But there are many dictionaries: Justice Alito could have easily found twenty dictionaries to consult in Taniguchi instead of ten. The fact that both Justice Alito and Justice Ginsburg could find definitions that support their conflicting interpretations, not just in different dictionaries, but sometimes in the same dictionary, doesn’t surprise

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lexicographers, but lawyers and judges need to keep the goals and complexities of lexicography in mind when relying on dictionaries in their arguments and opinions. We see the dictionary as the giver of meaning to words, but in fact, the users of a language are the ones to give meaning to words. The job of the dictionary-maker is to record those meanings, not to prescribe them or lay down rules for how words should be used. As David Skinner (2013) puts it, “in following Webster’s you’re following the followers.” And although the best dictionaries try to capture the many contexts in which a word appears, there are always nuances and usages that escape the lexicographer’s net. Dictionary makers know the fallibility of dictionaries, and some jurists do as well. Yet at times the courts rely on dictionaries as if definitions were carved in stone. Judges don’t just look up general words like interpreter, or legal terms like battery, lien, and prima facie, which any lawyer should know by heart. They also look up ordinary little words like also, if, now, and even ambiguous. One of the words Chief Justice Roberts looked up the week the New York Times checked his work was of. These are not words most people would consider worth a trip to the dictionary. Sometimes, they’d be right: in the end, Roberts’ search for the meaning of of didn’t turn up anything surprising. The  Dictionary  Act   Some laws define specific terms—a move intended by legislators both to facilitate statutory interpretation and to reduce trips to the dictionary. The first statute in the U.S. Code, called the Dictionary Act, provides definitions for a select group of terms. The difference between the Dictionary Act and an actual dictionary is that the act controls the meaning of the words it defines, while the dictionary does not. The definitions in the Dictionary Act apply to every federal law and regulation in which the defined term occurs, unless a specific statute broadens, narrows, or otherwise modifies those definitions, or, as the Dictionary Act puts it, broadly, “unless the context indicates otherwise.” Section 1 of the Dictionary Act consists of a short introduction and ten definitions: 1 USC § 1 — WORDS DENOTING NUMBER, GENDER, AND SO FORTH In determining the meaning of any Act of Congress, unless the context indicates otherwise— words importing the singular include and apply to several persons, parties, or things; words importing the plural include the singular; words importing the masculine gender include the feminine as well; words used in the present tense include the future as well as the present;

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the words “insane” and “insane person” and “lunatic” shall include every idiot, lunatic, insane person, and person non compos mentis; the words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals; “officer” includes any person authorized by law to perform the duties of the office; “signature” or “subscription” includes a mark when the person making the same intended it as such; “oath” includes affirmation, and “sworn” includes affirmed; “writing” includes printing and typewriting and reproductions of visual symbols by photographing, multigraphing, mimeographing, manifolding, or otherwise. The Dictionary Act tells us that in all the federal laws, singular includes plural and plural, singular, unless context says otherwise; the present tense includes the future; and the masculine includes the feminine (but not the other way around— the Dictionary Act may be inclusive, but it does not make gender equity reciprocal). The Act specifies that signature includes “a mark when the person making the same intended it as such,” recalling a time when illiteracy was still common. It also specifies that oath includes affirmation. This sensitivity to those who prefer not to swear an oath can be found in the Constitution as well: Art. II § 1, which specifies the presidential oath of office, requires that the president “shall take the following oath or affirmation,” and the oath itself begins, “"I do solemnly swear (or affirm) . . . .” Not all sections of the Dictionary Act cover terms that appear frequently in the U.S. Code. The drafters of the first section of the Dictionary Act apparently felt the need to specify the definition of madness in great detail: “the words ‘insane’ and ‘insane person’ and ‘lunatic’ shall include every idiot, lunatic, insane person, and person non compos mentis.” Yet the very next paragraph specifies that “persons are corporations . . . as well as individuals,” whatever this may imply about corporate mental health. The Dictionary Act repeats, in some cases with little editing, earlier “rules of construction” in federal laws. For example, on Feb. 25, 1871, Congress passed legislation specifying the meaning of masculine, singular, insane, and person, among others: [I]n all acts hereafter passed, words importing the singular number may extend and be applied to several persons or things; words importing the plural may import the singular; words importing the masculine gender may be applied to females; the words “insane

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person” and “lunatic” shall include every idiot, non-compos, and insane person, and the word “person” may extend and be applied to bodies politic and corporate . . . [Statutes at Large, 41st. Congress, third session]

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Acknowledging corporate personhood is common in the law. Samuel Johnson does not record this usage in his Dictionary of the English Language (1755), but Noah Webster, a lawyer by training, defines person to include the corporate sense, though Webster makes clear that the construction is a legal fiction: “In law, an artificial person, is a corporation or body politic.” And it is a fiction, as are many legal definitions: although 1 USC 1 defines men to include women, it took the Nineteenth Amendment to give women the right to vote, and although the Dictionary Act defines persons to include corporations, and the Supreme Court in Citizens United v. Federal Election Commission (558 U.S. 310 [2010]), brought corporate political speech squarely within the First Amendment’s free-speech protections, corporations can’t actually go to the polls. There are other legal limits to the personhood of corporate entities. A year after Citizens United, AT&T failed to convince the Supreme Court that, since it’s a person under the Dictionary Act, the telephone company is entitled to “personal privacy” under the Freedom of Information Act (FOIA). In rejecting AT&T’s claim, Chief Justice Roberts wrote, We have no doubt that “person,” in a legal setting, often refers to artificial entities. The Dictionary Act makes that clear. 1 U. S. C. §1 (defining “person” to include “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals”). But AT&T’s effort to ascribe a corresponding legal meaning to “personal” . . . elides the difference between “person” and “personal.” Roberts concluded with a bit of humor not typically found in high court opinions:

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We reject the argument that because “person” is defined for purposes of FOIA to include a corporation, the phrase “personal privacy” in Exemption 7(C) reaches corporations as well. The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally. [FCC v. AT&T (09-127)] I  want  that  in  writing  .  .  .   The final provision of section 1 of the Dictionary Act defines writing. That may seem an unusual word for federal law to define, but apparently Congress felt the need to specify that writing includes not just traditional kinds of writing such as printing and typewriting, but also newer technologies of writing: “writing” includes printing and typewriting and reproductions of visual symbols by photographing, multigraphing, mimeographing, manifolding, or otherwise.

multigraph1905.jpg Above: The Multigraph was an important office writing machine in 1905, but it is virtually unknown today. Multigraphs used strips of raised type inserted into a drum and inked with a ribbon to print form letters that looked like they had been individually typed. Below, left: ad for Ralph Wedgwood’s Patent Manifold Writer, invented in 1806, which employed “carbonified” paper, or carbon paper as it came to be known, to duplicate a letter as it was being written; and right, an ad for Edison’s mimeograph, patented in 1876, which promised to make 3,000 copies from a single stencil.

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There’s precedent for this kind of prospective defining of terms in legal contexts. For example, “to avoid repetition,” Thomas Starkie (1830) defined writing in a footnote on the very first page of his Treatise on the law of slander and libel in a way that encompassed known communication technologies and others yet to be invented: In order to avoid repetition in the following pages, unless the context render a narrower meaning necessary, the term writing is to be understood to include all kinds of communications, by printing and painting, or any other signs or symbols, as well as writing. [Starkie 1830, I:iin.] It’s interesting to the modern reader that Starkie includes painting as a vehicle for writing, as later definitions would include photographic, photomechanical, and eventually, digital reproduction of text. Federal law can’t be expected to keep up with every writing technology that comes along, but the newest of the six kinds of writing that the Dictionary Act enumerates—the multigraph—was invented around 1900 and has long since disappeared. No one speaks of multigraphing, or uses it, or of manifolding, an even older technology that involves copying by means of carbon paper, though in the digital age, with carbon paper no longer necessary, the phrase carbon copy has come to mean ‘clone,’ and its abbreviation, c.c., remains in common use in email. And for most of us, the mimeograph is at best a dim memory. But it seemed important to include all of these technologies under the banner of writing when the Dictionary Act was drafted, perhaps because some people might have questioned whether what were then

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innovative technologies—many of them developed for copying text rather than composing it—actually constituted writing. Even so, the first section of the Dictionary Act, drafted in 1947, hasn’t been updated to include newer writing technologies: photocopying, for example, which replaced photography, as a means of copying text, though the cell phone camera is popularizing that literal act of photo-copying once again. Nor has the Dictionary Act been upgraded to include the writing we do on computers and mobile phones, devices which seem now to be the primary means of composing, copying, or transmitting text, though presumably these newcomers, along with Facebook and Twitter and all the writing technologies that have yet to appear, are covered by the Act’s blanket phrase, “or otherwise.” Nonetheless, since revision is an integral part of writing, it may seem odd that Congress never thought to revise its definition of writing to drop the references to dead technologies and include some of the newer ones. In contrast to the statutory focus on writing technology, obsolete as it may be, dictionary definitions focus on general characteristics of writing and the latest definitions address the newest technologies of writing. Nathan Bailey (1736) implies that writing involves technology when he defines writing as “the art or act of signifying and conveying our ideas to others by letters or characters visible to the eye.” Samuel Johnson (1755) is slightly more specific about the technology involved: writing is “a legal instrument; a composure; a book; a written paper of any kind.” These are the kinds of definitions the Framers of the Constitution would have been familiar with, but they’re not much help once the telegraph comes along, and the digital computer complicates the notion of writing even more.

baileywriting.jpg Above: The definition of writing from Nathan Bailey’s Dictionarium Britannicum, vol 2. London: 1736. Below: writing defined in Samuel Johnson’s Dictionary of the English Language. London: 1755.

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The American lexicographer Noah Webster (1828) considers both the technologies of writing and its purpose in his definition: the act or art of forming letters and characters, on paper, wood, stone or other material, for the purpose of recording the ideas which characters and words express, or of communicating them to others by visible signs. Like the Dictionary Act, Webster enumerates some, though not all, of the possible kinds of writing. But Webster cannot resist a personal observation: “We hardly know which to admire most, the ingenuity or the utility of the art of writing.” This sort of editorializing does not occur in dictionaries today, though it occasionally makes its way into the writing of statutes.

websterwriting2.jpg Above: Definition of writing from Noah Webster’s An American Dictionary of the English Language. New York: 1828. Below: the definition from Webster’s Third New International Dictionary. Springfield, MA: 1961.

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Webster’s Third (1961) preserves much of Noah Webster’s original definition, without the subjective comment: writing is “the act or art of forming letters on stone, paper, wood, or other suitable medium to record the ideas which characters and words express or to communicate the ideas by visible signs.” The American Heritage Dictionary (5e, 2011) gives a more general definition, with the

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visible and communicative aspects of writing implied rather than directly expressed. It’s a definition that easily encompasses the writing done on computers, cell phones, and tablets: “The act or process of producing and recording words in a form that can be read and understood.” The Oxford English Dictionary augments the conventional view of writing as a visible medium by acknowledging perhaps the newest sense of writing, the nonvisible writing done when computers transfer keystrokes to digital memory: “The process of causing an item of data to be entered into a store or recorded in or on a storage medium.” As if to drive this point home, the OED’s latest definitions are available only online.

oedwriting.jpg Screenshot from the definition of writing from the online Oxford English Dictionary. oed.com, 2011

The Dictionary Act’s attempt at a cutting-edge definition of writing now seems quaint: all of the technologies that the Act names have been replaced— typewriters in America are more likely to be museum pieces or attic junk than writing machines, and even printing is digitally-mediated. With more writing done by means of silicon chips than pen and ink, we’re shifting away from mechanically reproducible text to writing on screen. The advent of text-to-speech and speech-totext technologies promises to blur the traditional distinctions between speech and writing. And the forms which writing takes are not just visible representations of our ideas, but machine-readable strings of 1’s and 0’s, charged particles, nanoswitches flipping on and off, LEDs, pixels, and things not yet dreamt of in our philosophy. Writing is becoming less and less a physical object which can be grasped, or whose physical location can be fixed in time and space, and more and more something that can be coded and streamed, fragmented and rematerialized, zipped and expanded, mashed and remixed, and moved around with the fingertips on a touch screen. Of course no legal definition that fits into a single clause can hope to define writing, but at some point Congress might bring the Dictionary Act into the twentyfirst century by dropping out the antique writing technologies and accommodating the newest ones. For now, though, federal law treats writing as the province of

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multigraphs, manifolds, typewriters, and mimeos, and possibly an internet that is little more than a series of tubes. Although legal definitions are important, redefining writing is not a highpriority issue for our lawmakers. Perhaps by the time Congress gets around to revising 1 USC § 1, Facebook and Twitter will be long gone, the digital age will have given way to the next big thing, and writing itself may have become nothing more than an obsolete series of marks on a screen. In any case, though, in the absence of legal precedents, what dictionaries say about writing is likely to become more important in cases where writing is a legal issue. But another lesson we can learn from the Dictionary Act is that, even when statutes define their own terms, those definitions may be ambiguous, inaccurate, out of date, or otherwise inadequate, necessitating a trip to the dictionary. They may also be unconstitutional: at the end of this chapter we’ll consider United States v. Windsor, a case which tested the constitutionality of section 7 of the Dictionary Act, which defines marriage as “a legal union between one man and one woman as husband and wife.” The  meaning  of  shall  in  Barnhart  v.  Peabody  Coal   In the case of Barnhart v. Peabody Coal Co. (2003), the Supreme Court had occasion to consider the meaning of a single, pivotal word, shall. When a law specifies that something shall be done by a stated time, and assuming that shall is a verb that commands, can the action required by the law be carried out after the deadline? Justice David Souter summarized the legal question at the start of his opinion: The Coal Industry Retiree Health Benefit Act of 1992 . . . provid[es] generally that the Commissioner of Social Security “shall, before October 1, 1993,” assign each coal industry retiree eligible for benefits to an extant operating company or a “related” entity, which shall then be responsible for funding the assigned beneficiary’s benefits. The question is whether an initial assignment made after that date is valid despite its untimeliness. We hold that it is. [Barnhart v. Peabody Coal, 537 U.S. 149 (2003, emphasis added)] The Court’s majority decided that sometimes circumstances may excuse the delayed fulfillment of a statutory requirement: in plain English, better late than never. But in his dissent, Justice Thomas insisted that the verb shall allows no wiggle room: a command that is not fulfilled on time cannot be fulfilled once time is up. Reminding the Court that the words in statutes must be understood in their “ordinary and or natural meaning,” Thomas quoted the American Heritage Dictionary to support his claim that shall is a “mandatory command”: [shall aux. v.] (1) a. Something that will take place or exist in the future.... b. Something, such as an order, promise, requirement, or obligation. [American Heritage Dictionary, s.v.] Although sense 1(a) of the definition that Thomas cited shows that sometimes shall is simply an indicator of the future tense, all the justices agreed that shall functions

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as an imperative in the Coal Act. What they disagreed about was just how much latitude the imperative shall permits. The American Heritage definition doesn’t actually support Thomas’ claim that imperative shall must be absolute: shall can signal an order, promise, requirement, or obligation, to be sure, but the dictionary, like the law in question, doesn’t say what happens if the order is not carried out, the promise broken, the requirement or obligation not fulfilled. Checking other dictionaries won’t resolve the problem: they too are silent on the matter. The Coal Act is similarly silent, imposing no penalty for failure to act, or for acting after the stated deadline. Justice Thomas argues that this is not consistent with the ordinary meaning of shall, and he concludes that if the mandated action is not performed on time, then it cannot be performed after the deadline has passed: If Congress indicates a lesser penalty for noncompliance (i.e., less than a loss of power to act), we will administer it; but if there is no lesser penalty and shall stands on its own, we will let government officials shirk their duty with impunity. Rather than depriving the term shall of its ordinary meaning, I would apply the term as a mandatory directive to the Secretary. The conclusion then is obvious: The Secretary has no power to make initial assignments after October 1, 1993. The ordinary meaning of shall is clear both to Justice Thomas and to the other justices. But they disagree about what that ordinary meaning is. And in this case, the dictionary did not help to resolve the issue. That should come as no surprise; it happened long ago in Nix, and it happens in recent cases as well. The  meaning  of  harbor  in  U.S.  v.  Costello   In a 2012 opinion, the prominent legal scholar Richard Posner, chief judge of the U.S. Seventh Circuit Court of Appeals, challenged the judicial reliance on dictionaries to establish word meaning. United States v. Costello (666 F.3d 1040, 2012) depends in large part on the meaning of the word harboring, and in his ruling in the case, Judge Posner found the government’s reliance on dictionary definitions of harboring to be misguided and inadequate. In an echo of Nix, Posner warned, “Dictionaries must be used as sources of statutory meaning only with great caution.” Costello deals with a violation of the Immigration Act. Since the passage of the 1917 Immigration Act, it has been illegal to shield, conceal, or harbor illegal aliens: Any person who . . . (iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation . . . shall be punished as provided in subparagraph (B). [8 U.S.C. § 1324(a)(1)(A)(iii)]

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In a bench trial, Costello was found guilty of violating that law by harboring her live-in boyfriend, a convicted drug dealer from Mexico who had been deported after serving a prison sentence, but who had subsequently returned to the United States illegally and resumed living with Costello. She was fined $200 and sentenced to two years probation. She appealed this verdict. In its response to her appeal, the government argued that Costello knew that her boyfriend was in the country illegally—Costello does not contest this—and that by letting him live with her, she harbored him in violation of the law. The government claimed that dictionaries current in 1952, when the most recent version of the statute was enacted, defined harbor simply as ‘to house a person, to provide shelter.’ But Posner found this definition wanting: “‘Sheltering’ doesn’t seem the right word for letting your boyfriend live with you.” Citing Black’s Law Dictionary, Posner concluded that harboring must imply concealment or secrecy (the government acknowledged that Costello never hid her boyfriend but lived with him openly), and googling the word, he found thousands of hits where harboring implies concealment: harboring fugitives, enemies, refugees, criminals, slaves, Jews, or others sought, often wrongly, by the authorities. It’s true that a harbor can provide shelter for a boat, and occasionally one finds citations about harboring flood victims, but a Google search does not return many examples of harboring in the sense of ‘openly sheltering or housing someone.’ This demonstrates to Posner that ‘providing shelter openly’ cannot be the ordinary, plain, or customary meaning of harboring. Posner is one of a growing number of jurists to recognize that “[dictionary] definitions are acontextual, whereas the meaning of sentences depends critically on context, including all sorts of background understandings.” What is unusual is the extent to which he critiques dictionaries in this opinion. As support for his critique, Posner cites Learned Hand’s advice “not to make a fortress out of the dictionary” and Frank Easterbrook’s assertion that the dictionary is “a museum of words.” The dictionary is a “historical catalog rather than a means to decode the work of legislatures.” Lexicographers agree: Jesse Sheidlower, of the Oxford English Dictionary, told the New York Times, “Dictionary definitions are written with a lot of things in mind, but rigorously circumscribing the exact meanings and connotations of terms is not usually one of them” (Liptak 2011). Dictionaries aren’t designed to be legal authorities, or even authorities on language, though many people, including the justices of the Supreme Court, seem determined to think of them that way. What dictionaries are, instead, are records of how some speakers and writers have used some words some of the time. Dictionaries don’t include all the words in a language, and except for an occasional usage note, they don’t tell us what to do with the words that they do record. There are many dictionaries and they don’t always agree. And sometimes dictionaries don’t cover the specific context whose meaning is in doubt. The popular image of the dictionary is that of an absolute law-giver, when it comes to language. But the reality of dictionaries is that they are tentative, inconsistent, and, from a legal perspective, alarmingly incomplete.

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The problem of specifying the meaning of a word or phrase goes well beyond lawyers using dictionaries. Ordinary language is full of ambiguity. It’s common for people to misunderstand one another when we’re speaking or writing anything. We may not think that simple texts like shopping lists are ambiguous, but they are: My wife asks me to stop for bread on the way home, but when I proudly present her with an artisan sourdough, she eyes it askance and says, “I wanted whole wheat.” We adapt our communications to minimize such misunderstanding, and for shopping, a mobile phone proves a lot more useful than a dictionary for determining meaning— that’s why so many people in grocery stores are calling or texting to make sure that this time they’re buying the right thing. It’s hardly news that literature is also ambiguous, and literary critics spend their time debating whether a poem or novel means this or that. Like it or not, our sacred texts are ambiguous as well: the history of religion shows that scholars, zealots, and partisans don’t just debate the uncertain meanings of the various holy writs, sometimes they kill one another over readings that they are determined to defend as dogma or attack as heresy. It turns out that no matter the context, language is slippery, and interpretation is always up for grabs. Even the notion that the laws are an exception, that legal meaning is more transparent or precise than other types of language, turns out to be inaccurate. If legal texts were crystal clear, then instead of arguing and weighing competing interpretations of constitutions, statutes, and contracts, judges and lawyers would have a lot more time for golf or social media. Where does this leave us when we’re trying to establish the meaning of a law, or more important, the meaning of the Constitution itself? It’s fine to acknowledge that the spoken or written word may yield multiple interpretations, and that meaning may reside more in the mind of the hearer or reader than in the text. But we expect a degree of stability from our laws that we don’t demand of literature or shopping lists, and that is where the courts come in. Literature has no court of arbitration, no authoritative body which tells us exactly what Hamlet means when he says, “To be or not to be, that is the question.” Some religions endow a particular person, or a select group, with doctrinal power; others leave meaning in the hands of individual believers. But laws are interpreted by judges, and if judges use dictionaries to arrive at meaning, or if they reject dictionaries as less reliable than searching massive online databases, or they simply decide, as Horace Gray did in Nix, to trust their intuition—presumably Justice Gray saud to himself, “I speak English, so I know what these words mean”—then that is their prerogative. The question for us is not how judges should determine meaning, but rather how they do determine it. Taniguchi:  interpreting  interpreter   Taniguchi v. Kan Pacific Saipan gives us some insight into this process. Jurists like Richard Posner are correct to question the usefulness of dictionaries in determining statutory meaning, but most judges and lawyers, like most ordinary people, still accept the authority of dictionaries, although clearly in the case of judges, many accept only those definitions which support their interpretation, or they spin that definition to bolster their argument.

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The issue decided in Taniguchi is whether the winning side in a civil suit can recover costs for document translation. The professional Japanese baseball player Kouichi Taniguchi was injured when touring a resort property owned by Kan Pacific Saipan and located in the Northern Mariana Islands. In defending itself against Taniguchi’s injury suit, Kan Pacific Saipan paid for the translation of contracts from Japanese to English. When Kan Pacific won, the lower courts included $5000 for these translation expenses in costs awarded to the company. Taniguchi objected on the grounds that the relevant law, 28 U.S.C. § 1920, permits the recovery of costs for “compensation of interpreters,” and that interpreters in the statute refers only to translators of speech, not writing. The Court’s majority agreed with Taniguchi’s reading of interpreter. In his opinion, Justice Alito cited, among others, the Oxford English Dictionary definition of interpreter: “One who translates the communications of persons speaking different languages; spec. one whose office it is to do so orally in the presence of the persons.” Alito noted that the OED labels an earlier sense of interpreter, “A translator of books or writings,” obsolete. The word once meant a person who explained things to others, a commentator, someone who unraveled “laws, texts, mysteries.” Consistent with this sense, interpreter was once a common name for an English dictionary. The goal of the first dictionaries was to explain foreign or difficult words, and Henry Cockeram titled his 1623 lexicon, The English Dictionarie: or, an Interpreter of hard English Words.

cockeram.tif

The respondents in Taniguchi cited Webster’s Third New International Dictionary, which defines interpreter as, “one that translates; esp: a person who translates orally for parties conversing in different tongues.” An interpreter typically translates speech, they argued, but the word can refer to written translation as well. That argument prevailed, and the trial court awarded interpreters’ expenses for document translation to Kan Pacific Saipan. The Ninth Circuit Court of Appeals agreed with this reading of interpreter and affirmed the award. But Justice Alito read Merriam-Webster’s definition differently, arguing that the “sense divider” esp

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(‘especially’) points us to the ordinary meaning of the word. According to Alito, “That a definition is broad enough to encompass one sense of a word does not establish that the word is ordinarily understood in that sense.” In other words, interpreters sometimes translate writing, but the word most commonly refers to oral translation, and so that’s how we must read the statute’s provision for compensation. Alito emphasized that an ordinary meaning may be just part of a definition, but for the law, it’s the crucial part: The fact that the definition of ‘interpreter’ in Webster’s Third has a sense divider denoting the most common usage suggests that other usages, although acceptable, might not be common or ordinary. Nailing down his dictionary argument, Alito added that the numbers were on his side: It is telling that all the dictionaries cited above defined “interpreter” at the time of the statute’s enactment as including persons who translate orally, but only a handful defined the word broadly enough to encompass translators of written material. The ordinary meaning of interpreter is thus indicated by the definitional modifier especially, and by the fact that more dictionaries speak only of oral translation in their definitions. Alito does not cite it, but the American Heritage Dictionary defines interpreter solely as ‘One who translates orally from one language into another’ (5th ed., 2011, s.v.). In her dissent, Justice Ginsberg read the same evidence differently: “‘interpreters’ is more than occasionally used to encompass those who translate written speech as well.” For Ginsburg, “employing the word ‘interpreters’ to include translators of written as well as oral speech, if not ‘the most common usage’. . . is at least an ‘acceptable’ usage.” In other words, words can have more than one ordinary sense. And although Justice Scalia agreed with Alito in Taniguchi, in District of Columbia v. Heller Scalia argued that the ordinary, military meaning of bear arms does not prevent it from meaning other things as well: “The fact that the phrase was commonly used in a particular context does not show that it is limited to that context” (District of Columbia v. Heller, 15). The upshot of Taniguchi (as it is in Heller, which we’ll talk about in the next chapter), is that in the Supreme Court, majority rules, and when both sides in a case draw contradictory conclusions from the same lexical data, the majority’s reading of the dictionary evidence trumps that of the minority. Since even dictionary evidence can be ambiguous, it is the Court that has the ultimate authority in matters of definition, and not the dictionary. And that’s how interpretation works, not just with legal language, but with language in general: meaning is determined by the reader or the listener, not by the text or its author.

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w3interpreter.tiff Above: The definition of interpreter in Webster’s Third New International Dictionary (1961) covers both written text (for example, deciphering hieroglyphics) and, “especially,” oral translation. Both Alito and Ginsberg cite this definition to support their positions in Taniguchi. Below: Although neither justice cites it, the Century Dictionary (1890) entry for interpreter also supports both sides: “especially” suggests that most interpreters translate speech, that is, “especially, one who explains what is said in a different language,” but it also implies that interpreter may be used for someone who explains what is written in a different language. Even though that sense may be less common, it is not marked as rare or obsolete. Certainly, too, the citation referring to an “interpreter of the Constitution” confirms that when interpreters explain meaning, they are interpreting written text.

centuryinterpreter.tiff

When  dictionaries  fail:  Bullock  v.  BankChampaign   Taniguchi presented a case of dueling dictionaries, but in Bullock v. BankChampaign (11-1518, 2013), the Supreme Court seemed to take its cue from Posner’s critique, rejecting dictionaries as “unhelpful” and turning instead to a combination of legal precedent and context to specify the meaning of the word defalcation in the bankruptcy code. Here are the details of the case: Randy Bullock, the trustee of his father’s estate, borrowed money three times from the estate, repaying each loan in full, with interest, as specified in the trust agreement. Bullock’s brothers sued him because even though Bullock repaid the loans, both he and his mother profited financially from his actions. Trustees are supposed to protect the trust, they argued, not use it to line their pockets, an act which is called “self-dealing.” Bullock’s brothers won a summary judgment against him for a breach of his fiduciary duty, and Bullock was ordered to pay a penalty to the estate equivalent to the profit he had made. As part of the ruling,

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BankChampaign replaced Bullock as trustee, and Bullock declared bankruptcy to avoid paying the court-imposed penalty. BankChampaign asked the Bankruptcy Court to rule Bullock’s debt payable under an exception in the bankruptcy code for defalcation, and the court agreed, finding that the penalty was “a debt for defalcation while acting in a fiduciary capacity.” The Court of Appeals affirmed this decision, finding that because Bullock’s actions as trustee were “reckless,” he couldn’t erase that specific debt by declaring bankruptcy. Bullock then appealed to the Supreme Court, which vacated the lower court’s decision. In his opinion, Justice Breyer quoted the relevant portion of the law, which states that in a case involving defalcation, the debtor can’t avoid paying by declaring bankruptcy: Section 523(a)(4) of the Federal Bankruptcy Code provides that an

individual cannot obtain a bankruptcy discharge from a debt “for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” The question is, What does defalcation mean? Defalcation is hardly a common word. It is not a word whose plain meaning is evident to anyone: not to the general public and, if its conflicting legal interpretations are a guide, not to lawyers and judges either. The primary question raised in Bullock is whether defalcation requires the same knowledge of wrongdoing, or criminal intent, as the other exceptions listed in the bankruptcy statute: fraud, embezzlement, and larceny. Bullock’s attorney argued that because Bullock’s actions were not deceptive or criminal, and because he repaid the estate with interest, he did not commit defalcation, and bankruptcy should therefore free him from the obligation to repay the penalty. The attorney for BankChampaign argued that defalcation simply means taking money from a trust for one’s own interest, with no proof of intent or criminal wrongdoing required. According to that definition, even after declaring bankruptcy, Bullock would still have to pay the penalty. The Court unanimously agreed with Bullock. In deciding what defalcation means, the Court rejected dictionary evidence as inconclusive and contradictory, relying instead on a nineteenth-century legal precedent defining fraud, and on the context surrounding defalcation in the bankruptcy statute: because courts have long held that fraud, embezzlement, and larceny, lumped together in the statute with defalcation, all require intent or knowledge of wrongdoing, then defalcation too requires criminal intent.

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defalcation_larceny_embezzlement.jpg According to Google’s n-gram viewer, which charts word frequency in the Google Books database from 1800-2000, defalcation was never a common word. At its height, around 1840, its frquency never topped 0.00009%, occurring less than once every million words, and it is even rarer today. In contrast, the frequency of embezzlement remains relatively constant. Larceny is more common than either, until recently, though it refers to theft of property as well as funds. In any case, its frequency does not help us to know what defalcation means.

The  meanings  of  defalcation   Defalcation is a technical term referring to a reduction in an account. The root of the word, the Latin falc, originally meant a scythe or sickle; to defalcate meant ‘to cut or mow,’ and it has been used at least since the seventeenth century in a metaphorical sense in bookkeeping.

baileyfalcated.jpg Above: The definitions of falcated and falcation in Nathan Bailey’s New Universal Dictionary, 1736, showing the reference to a scythe or sickle, both literally, and metaphorically, in describing the shape of the quarter moon. Below, Bailey’s definitions of defalcation and defalk as both the literal cutting of vegetation, and its figurative use in bookkeeping.

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baileydefalcationdefalk.jpg

Defalcation appears as an exception to debt forgiveness in the first Bankruptcy Act of 1841, and remains in the revision of the statute in 1867 and in all subsequent revisions. The 1898 Bankruptcy Act added fraud, embezzlement, and misappropriation to defalcation as debts not excused by bankruptcy. But the law never defined defalcation. One of the most newsworthy defalcations occurred in 1901, when Walter N. Dimmick, the well-known cashier of the San Francisco Mint, was arrested, convicted, and sentenced to seven years in prison for financial irregularities which included taking $30,000 worth of gold coins from the mint. At the time, California newspapers referred to Dimmick’s action with such words as theft, robbery, embezzlement, and defalcation. Defalcation was surely a rare word in the early 1900s, as it is today, and it’s possible that the alliterative phrase Dimmick defalcation is what prompted its use by the press. But it’s important to note that the papers at the time did not define defalcation for readers. The context was enough to tell them that at least in Dimmick’s case, the word referred to theft, not simple mismanagement or accidental loss of funds.

defalcation1904.jpg

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The Dimmick case received wide coverage in California. This 1904 report in the Los Angeles Herald (March 16), refers to Dimmick’s defalcation and embezzlement.

In his opinion in Bullock, Justice Breyer also used context to interpret defalcation because dictionaries were no help. Breyer cited several dictionaries, old and new, to illustrate the ambiguities of defalcation: •

• •



• • •

Bouvier’s Law Dictionary (4e, 1852): ‘the act of a defaulter’; defaulter is further defined as ‘one who is deficient in his accounts, or fails in making his accounts correct.’ Worcester’s Dictionary (1846; cited by the OED): ‘a breach of trust by one who has charge or management of money.’ Webster’s Second New International Dictionary (1934): ‘An abstraction or misappropriation of money by one, esp. an officer or agent, having it in trust.’ Webster’s Third (1961): ‘misappropriation of money in one’s keeping.’ Black’s Law Dictionary (9e, 2009): ‘Embezzlement,’ also, ‘loosely, the failure to meet an obligation; a nonfraudulent default.’ American Heritage Dictionary (5e, 2011): ‘To misuse funds; embezzle.’ Oxford English Dictionary: ‘monetary deficiency through breach of trust by one who has the management or charge of funds; a fraudulent deficiency in money matters.’

Breyer did not refer to the Century Dictionary (1889), current around the time of the 1898 revision of the Bankruptcy Act, which defines defalcation both as a simple deficit and as a deficit arising from fraud or breach of trust, with an illustrative quotation that reflects criminal intent.

centurydefalcationfraud.png

The problem with these definitions is that some refer to any reduction in funds without going into the circumstances; some specify a criminal default; and some include both fraudulent and nonfraudulent defaults. Complicating matters further, Breyer found that the legal record is similarly contradictory with regard to intent—with some authorities insisting that defalcation must be intentional, and others saying it may be accidental:

Courts of appeals have long disagreed about the mental state that must accompany the bankruptcy-related definition of “defalcation.” Many years ago Judge Augustus Hand wrote that “the

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misappropriation must be due to a known breach of the duty, and not to mere negligence or mistake”. . . . But Judge Learned Hand suggested that the term “may have included innocent defaults.” In the end, Breyer relied on a nineteenth-century Supreme Court precedent that linked fraud to the intentional crime of embezzlement. In Neal v. Clark (95 U.S. 704 [1878]), the Court found that fraud, in bankruptcy law, must involve “moral turpitude or intentional wrong, as does embezzlement.” Breyer concluded that since defalcation is paired with fraud in the bankruptcy statute, it should be seen as an offense similar to fraud. In coming to his conclusion, Breyer relied on the interpretive canon known as noscitur a sociis, ‘it is known by its companions,’ a kind of semantic guilt by association. Writing in Neal, Justice Harlan quoted Broom’s Legal Maxims (1845; 2e. 1848), which frames noscitur a sociis this way: where the meaning of any particular word is doubtful or obscure . . . the intention . . . may frequently be ascertained . . . by looking at the adjoining words, or at expressions occurring in other parts of the same instrument. Or as Justice John Paul Stevens wrote more succinctly, “words grouped in a list should be given related meanings” (Third National Bank in Nashville v. Impac Ltd. [1977], cited in Scalia and Garner (2012) in their discussion of the “associated words” canon, 195). Since the lower court found no intent to deceive or commit wrongdoing on Bullock’s part, Breyer concluded that Bullock did not commit defalcation. That should come as a relief to Bullock, whose debt is now excused, though it’s not likely to bring peace to the Bullock family, and BankChampaign will not recoup its legal costs. But what is interesting from our perspective is that in this case, Justice Breyer did not select from among the various dictionary definitions the ones that supported his interpretation. Instead, he rejected dictionaries altogether, basing his decision on precedent and a reasoned but nonetheless impressionistic reading of the law. In other words, we have here a judicial interpretation of the written text. Courts  and  crowd-­‐sourced  dictionaries   Geoffrey Bloom, a United Kingdom Independence Party (Ukip) member of the European Parliament, sparked a controversy in 2013 when he complained it was wrong for Britain to give foreign aid to countries like “Bongo-Bongo Land,” where it would only be squandered. Bloom insisted that his use of the phrase “BongoBongo Land” was not a racist reference to African countries because the Oxford English Dictionary defines a bongo as ‘a white antelope’: If anybody would care to take the trouble to get out the Oxford dictionary this morning and look it up, you'll find that bongo is a white antelope, lives in the forest, there is no connotation of racism about it whatsoever. . . . Bongo land is the land of the antelope. [Mason, 2013]

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The actual OED definition of bongo reads, “An antelope, Boocercus eurycerus, found in central Africa, from Sierra Leone to Kenya.” But that’s beside the point. Bloom’s use of the dictionary doesn’t support his claim because the OED has no entry for Bongo Bongo Land, a phrase that has long been used in Britain to describe African countries derisively. In 1985, Alan Clark, the Tory minister responsible for race relations, was reported to have said that government critics from the black community feared that the immigration service would retaliate and send them “back to Bongo Bongo Land.” Clark denied the claim, although a spokesman acknowledged that he might have said something to that effect in a private meeting (Riddell 1985). Though it’s not recorded in conventional dictionaries, this slang sense of Bongo-Bongo Land is readily found on line, both in the Urban Dictionary and in Wikipedia. When conventional dictionaries fail us, online sources may offer an alternative way to determine meaning. Dictionaries may not give jurists the definitions they need for common words like shall or rare ones like defalcation. But when words are too new, or too slangy, they won’t appear in standard dictionaries at all. In such cases, some courts have begun to rely on less-authoritative lexical sources, like the Urban Dictionary (urbandictionary.com), an online, crowd-sourced compilation of current slang, which in recent cases has provided definitions of words whose ordinary and customary meaning eludes jurists, for example, jack, ‘to steal,’ nut, ‘to ejaculate,’ and iron, ‘handgun’ (Kaufman 2013). If relying on standard dictionaries may be risky business when it comes to legal interpretation, relying on such user-generated databases could be an even worse idea: it’s one thing to google a word or phrase, as Richard Posner did, to see the kinds of online contexts where it occurs, but it’s more difficult to know what to do with definitions that are uploaded by amateurs whose goal may be to have fun or attract attention rather than to contribute to the judicial understanding of language. Urban Dictionary may offer some insights into current slang, but users can’t always trust what they find there. Unlike conventional dictionaries, Urban Dictionary, which defines itself as “the dictionary you write,” has no editorial supervision, no accuracy checks, and no peer review. Instead, contributors are invited to upload whatever words and meanings they want, and to invent illustrative quotes if they like. And Urban Dictionary warns users in its terms of service, The Company does not warrant that (i) the Website will meet your requirements . . . . (iv) the Website will be without errors, (v) or that any errors will be corrected. In other words, there may be better and more accurate ways for courts to find out the meaning of such slang terms as jack, nut, and iron, and citing the OED didn’t convince anyone that Geoffrey Bloom’s comment about Bongo-Bongo Land was an innocent one. Defining  marriage   Defining marriage came into national focus in the Spring of 2013, when the Supreme Court heard two high-profile cases, United States v. Windsor, challenging the federal definition of marriage in the Defense of Marriage Act (DOMA), and

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Hollingsworth v. Perry, an appeal of the Ninth Circuit’s ruling that California’s Proposition 8, banning same-sex marriage, was illegal. Both cases concerned who gets to define marriage, and what that definition says. There are no dictionary definitions of marriage to be found in either Justice Kennedy’s opinion in Windsor, or in the dissents filed by Chief Justice Roberts and by Justices Scalia and Alito. Hollingsworth, decided on the same day, doesn’t resort to dictionaries either, but that decision was a narrower one based on standing—who has the right to bring a lawsuit—rather than on the substance of the case. The Court ruled in Windsor that the key provision of the Defense of Marriage Act—the one defining marriage—was unconstitutional. And it did so without once using the phrase, “the dictionary says.” Instead, the Court referred both to traditional concepts of marriage—the assumption that until recently marriage referred to a heterosexual union—and to the power of the individual states and of the federal government to define marriage in statutes. Section 3 of DOMA, enacted in 1996, adds a section to the Dictionary Act that defines marriage in all federal laws, rules, and regulations, as heterosexual, “a legal union between one man and one woman as husband and wife” (1 USC 1 §7): SEC. 3. DEFINITION OF MARRIAGE. IN GENERAL.—Chapter 1 of title 1, United States Code, is amended by adding at the end the following: “§ 7. Definition of ‘marriage’ and ‘spouse’ “In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” Given a statutory definition so sweeping that it amends the Dictionary Act, we should not need to look up marriage in a dictionary. But challenges to bans on same-sex marriage sometimes cite dictionary definitions to support their claims. As Ben Zimmer (2012) notes, in 2007 a Rhode Island Supreme Court ruled that the state’s Family Court had no jurisdiction over a same-sex couple married in Massachusetts because at the time of the Family Court’s creation, in 1961, dictionaries defined marriage as a union between a man and a woman. This ruling, relying on a definition that excludes same-sex marriage, provided indirect legal support for gay or lesbian couples, but in most cases, and DOMA is prime example, such definitions are deployed against same-sex unions. Because dictionary definitions can influence legal interpretation, one activist, Mike Raven, began an online petition drive to get dictionary.com, a widely-used site whose definitions are based on those of the now-defunct Random House Dictionary, to change its definition of marriage to give same-sex marriage equal treatment. Dictionary.com currently defines marriage as, among other things,

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a. the social institution under which a man and woman establish their decision to live as husband and wife by legal commitments, religious ceremonies, etc. b. a similar institution involving partners of the same gender: gay marriage.

dictionarydotcommarriage.tif Above: Screenshot of dictionary.com definition of marriage (taken on 6-21-12). Below: Screenshot of the definition taken on 9-1-13, showing some post-Windsor revision, with a new, genderless initial definition, followed by the former, genderspecific first sense, and then several others; note too that for no apparent reason, the metaphorical sense of marriage (sense 5 above) has been dropped in the revision, though it is alluded to in the discussion that follows the definition.

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marriage_dictionarydotcom.jpg

Like dictionary.com, many dictionaries have added a definition of same-sex marriage to their entry for marriage by appending an additional, secondary, or lesscommon meaning. Raven would like to see these two-part definitions replaced with his one-part, gender-neutral version, a definition that doesn’t relegate gay marriage to what he regards as second-class status (or as Justice Ginsburg put it during oral arguments in Windsor, “there’s full marriage and then there’s sort of skim milk marriage”): A civil, social and legal institution under which two consenting adults establish their life-long relationship based on love and commitment. Raven’s is not the first attempt to change a dictionary definition, and it raises the possibility that word meanings could be decided by popular vote or political pressure. But it should also make us wonder whether changing the definition of marriage would change people’s attitudes toward marriage in any way. After all, language expresses what people want to say; altering definitions, whether through laws or by revising dictionaries, doesn’t repress those sentiments—it may even make them stronger. In any case, dictionary.com did revise its definition of marriage after the Windsor decision was handed down. The new definition begins with a sense that focuses on marriage as a formal, approved commitment, with no mention of gender. Sense 2, formerly sense 1, covers heterosexual and homosexual marriage. Dictionary definitions were not mentioned during oral arguments in Windsor or in Hollingsworth, and although none of the opinions or dissents in these cases cited dictionaries, it would not be surprising if the justices, or their clerks, consulted dictionaries along the way. If they did, here are some of the definitions of marriage

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that they would have found, taken from major dictionaries from the eighteenth century to the present. Samuel Johnson, the eighteenth-century dictionary-maker often quoted by the courts, defines marriage as “the act of uniting a man and a woman for life” (A Dictionary of the English Language, 1755). In his American Dictionary of the English Language (1828), Noah Webster also defines marriage as a specifically heterosexual union. Taking a tone that today’s lexicographers would find unprofessional, Webster uses his definition to ground marriage in religion: MARRIAGE, n. . . . The act of uniting a man and woman for life; wedlock; the legal union of a man and woman for life. Marriage is a contract both civil and religious, by which the parties engage to live together in mutual affection and fidelity, till death shall separate them. Marriage was instituted by God himself for the purpose of preventing the promiscuous intercourse of the sexes, for promoting domestic felicity, and for securing the maintenance and education of children.

johnsonmarriage.jpg Above: the definition of marriage from Dr. Johnson’s dictionary, 1755. Below: the definition from Noah Webster’s dictionary, 1828

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Joseph Emerson Worcester skips Webster’s moralizing but copies his definition word for word in the Comprehensive Pronouncing and Explanatory Dictionary of the English Language (1830): “the act of uniting a man and woman for life.” Stung by charges of plagiarism, Worcester later expanded his definitions of marriage, and other words as well, in the Universal and Critical Dictionary of the English Language (1846):

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MAR'RIAGE, (mar'rjj) n. [mariage, Fr.] The act of marrying, or uniting a man and woman for life; matrimony; wedlock; wedding; nuptials. It is sometimes used as an adjective, and it is often used in composition; as, marriage-articles, marriage-bed, &c.

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The Century Dictionary (1891), the first to be produced on scientific, linguistic principles, defines marriage as “the legal union of a man with a woman for life,” but it is also the first lexicon to recognize that marriage is defined differently in different cultures. Marriage may include both common law marriage and “plural marriage,” or polygamy as well (not just abroad, but also in the United States, the dictionary notes, as practiced by Mormons).

centurymarriage.tif

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Above: The Century Dictionary defines marriage as heterosexual, but its definition takes an anthropological bent, recognizing the fluidity of wedlock practices across cultures. Below: the Century’s subentry for plural marriage, both “among the Mormons” and in “Oriental countries” (a reference not to the Far East, but to Islam):

centurypluralmarriage.tif

Black’s Law Dictionary (2nd ed., 1910), confirms earlier definitions of marriage as heterosexual, grounding the institution in civil law rather than religion: Marriage . . . is the civil status of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incumbent on those whose association is founded on the distinction of sex.

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Although only the Century acknowledges various kinds of marriage, all these early definitions discuss heterosexual marriage exclusively. But times and mores change, and as same-sex marriage gained traction, dictionaries took notice, not because they’re written by social activists, but because their charge is to record language as people use it. After all, even the opponents of marriage equality use the word marriage to refer to those same-sex unions they oppose. In 2003, MerriamWebster’s Collegiate Dictionary (11th ed.) added same-sex unions to its definition of marriage: 1a (1) the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law (2): the state of being united to a person of the same sex in a relationship like that of a traditional marriage.

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w11marriage.tif Marriage defined in Merriam-Webster’s Collegiate Dictionary, 11e, 2003

The Oxford English Dictionary, another favorite with judges, has also added samesex marriage to its definition: a. The condition of being a husband or wife; the relation between persons married to each other; matrimony. The term is now sometimes used with reference to long-term relationships between partners of the same sex (see gay marriage n. at GAY adj., adv., and n. Special uses 2b). The OED also adds this definition of gay marriage (in its entry for gay), tracing the first use of the term back to 1971: gay marriage n. a relationship or bond between partners of the same sex which is likened to that between a married man and woman; (in later use chiefly) a formal marriage bond contracted between two people of the same sex, often conferring legal rights; (also) the action of entering into such a relationship; the condition of marriage between partners of the same sex.

oedmarriage.tif Above: screenshot of OED definition of marriage. Below: screenshot of OED entry for gay marriage (taken on 6-21-12).

oedgaymarriage.tif

And in 2011, the American Heritage Dictionary (5th ed.) added both same-sex marriage and polygamy to its definition of marriage: a. The legal union of a man and woman as husband and wife, and in some jurisdictions, between two persons of the same sex, usually entailing legal obligations of each person to the other. b. A similar union of more than two people; a polygamous marriage. c. A union between persons that is recognized by custom or religious tradition as a marriage. d. A common-law marriage.

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ahdmarriage.tif Screenshot of the definition of marriage from the American Heritage Dictionary (taken on 6-21-12).

Dictionaries don’t prescribe how a word should be used, but laws like the Defense of Marriage Act do exactly that. A dictionary might say that sometimes marriage refers to heterosexual couples, or sometimes, particularly in recent years, to same-sex couples as well; and in some cases marriage includes polygamy. They may tell us that marriage can be metaphorical: the happy marriage of ingredients in a recipe, for example, or as Shakespeare wrote in Sonnet 116, “the marriage of true minds.” But DOMA defines marriage for the purposes of federal law as “a legal union between one man and one woman as husband and wife.” That law’s exclusive prescription of marriage as heterosexual, not the earlier dictionary definitions of marriage as heterosexual or the recent and more-inclusive ones, became the focus for both sides in Windsor.

doma.png The Dictionary Act, 1 USC § 7, from the Legal Information Institute at Cornell Law School (screenshot taken 7-13-13)

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The impact of DOMA’s definition is sweeping. As Justice Kennedy put it in his opinion in Windsor, The enactment’s comprehensive definition of marriage for purposes of all federal statutes and other regulations or directives covered by its terms . . . control[s] over 1,000 federal laws in which marital or spousal status is addressed as a matter of federal law. [Opinion, 2] Kennedy acknowledges as well the traditional assumption that marriage is a heterosexual union: [U]ntil recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. [13] Kennedy argues that New York State’s statutory redefinition of marriage to include same-sex couples affirms the changing notion of who can marry: Some states concluded that same-sex marriage ought to be given recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other. . . . New York acted to enlarge the definition of marriage to correct what its citizens and elected representatives perceived to be an injustice that they had not earlier known or understood. [14] Kennedy recognizes, too, the long-standing legal authority of states—not dictionaries—to define marriage: By history and tradition the definition and regulation of marriage . . . has been treated as being within the authority and realm of the separate States. [14] and, State responsibilities for the definition and regulation of marriage [date] to the Nation’s beginning. [18] Kennedy finds that DOMA’s definition has reversed the intent of New York and the other states that have defined marriage to include same-sex couples: The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and disabilities. [19] As a result, the Defense of Marriage Act “writes inequality into the entire United States Code” (22). Kennedy finds DOMA’s definition of marriage in conflict not

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only with the state prerogative to define that institution, but also with the Constitutional Fifth Amendment guarantees of due process and equal protection— “The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws” (25)—and so section 3 of DOMA, the definition of marriage, is ruled unconstitutional. Chief Justice Roberts in his dissent does not refer to dictionaries, citing instead the legal practice of defining marriage: At the time of its adoption, the Defense of Marriage Act codified into federal law “the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world” (Roberts Dissent, 1; it’s not clear that every state had actually defined marriage as heterosexual by 1996, when DOMA was passed, though that implicit definition was probably assumed by all concerned). Roberts also fears that in the wake of Windsor, federal courts may seek to invalidate on constitutional grounds state definitions of marriage that don’t recognize same-sex marriage (3). Justice Scalia agrees, fearing in addition that with no uniform federal definition of marriage, it may be difficult to decide which definition of marriage to apply to particular cases, the law of the state where the marriage was celebrated, or that of the state where the parties reside. Scalia defends DOMA on the grounds that it sought to eliminate such legal uncertainty: “That is a classic purpose for a definitional provision” (Scalia Dissent, 20; despite Scalia’s fears, the IRS ruled in a follow-up to Windsor that for tax purposes the federal government would treat as married any same-sex couple who had been legally married, regardless of their current residence). Although he consulted ten separate dictionaries in his opinion in Taniguchi, in his dissent in Windsor Justice Alito, like his colleagues, skips any reference to dictionaries. He refers instead to the cultural role in defining marriage: “[T]he “consent-based” vision of marriage, a vision that primarily defines marriage as the solemnization of mutual commitment— marked by strong emotional attachment and sexual attraction— between two persons. [Alito Dissent, 14]. And even though he acknowledges the power of states to define marriage, Alito argues that Congress has that power too: Assuming that Congress has the power under the Constitution to enact the laws affected by §3, Congress has the power to define the category of persons to whom those laws apply. [17] “The dictionary says” has become an all-too-common preface to the delivery of a bit of vocabulary information because we frequently rely on dictionaries to look up words. When it comes to the meaning of marriage, dictionaries and statutes don’t always agree, and neither the word book nor the law book may fully reflect the “ordinary” senses of the word. But what we learn from cases like Taniguchi, Costello, Bullock, and Windsor, is that, when it comes to the law, it’s not dictionaries, but legislatures, statutes, and the courts that ultimately control what words can and cannot mean in the context of the law.

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In the next chapter, we will look at the landmark decision in District of Columbia v. Heller (2008), in which the Supreme Court interpreted the Second Amendment to guarantee an individual right to own a gun. That case hinged in part on dictionaries and grammar books, both those current in the Framers’ day, and those which describe the English language today. Heller furnishes a detailed lesson in how courts weigh linguistic evidence as they determine legal meaning.