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55 Wm. & Mary L. Rev. 483 (2013-2014)
Oasis or Mirage: The Supreme Court's Thirst for Dictionaries in the Rehnquist and Roberts Eras

handle is hein.journals/wmlr55 and id is 505 raw text is: OASIS OR MIRAGE: THE SUPREME COURT'S THIRST FOR
The Supreme Court's use of dictionaries, virtually non-existent
before 1987, has dramatically increased during the Rehnquist and
Roberts Court eras to the point where as many as one-third of
statutory decisions invoke dictionary definitions. The increase is
linked to the rise of textualism and its intense focus on ordinary
meaning. This Article explores the Court's new dictionary culture in
depth from empirical and doctrinal perspectives. We find that while
textualist justices are heavy dictionary users, purposivist justices
invoke dictionary definitions with comparable frequency. Further,
dictionary use overall is strikingly ad hoc and subjective. We
demonstrate how the Court's patterns of dictionary usage reflect a
casual form of opportunistic conduct: the justices almost always
invoke one or at most two dictionaries, they have varied individual
brand preferences from which they often depart, they seem to use
general and legal dictionaries interchangeably, and they lack a
coherent position on citing to editions from the time of statutory
enactment versus the time the instant case was filed.
The Article then presents an innovative functional analysis of how
the justices use dictionaries: as way stations when dictionary
meanings are indeterminate or otherwise unhelpful; as ornaments
when definitions are helpful but of marginal weight compared with
more traditional resources like the canons, precedent, legislative
* Professor of Law, Fordham University School of Law.
** Professor Emeritus of Political Science, Ohio State University. We are grateful to
Ellen Aprill, William Eskridge, Abbe Gluck, Ethan Leib, Richard Posner, Lawrence Solan,
and Kevin Stack for helpful comments on an earlier draft. We thank Craig Cagney, Steve
Della Fera, Jacob Sayward, and the Fordham Law School Library for valuable research
assistance, and Cynthia Lamberty-Cameron for fine secretarial support. Fordham Law School
contributed generous financial assistance.


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