Scouring Dictionaries: Their Overuse and Misuse in the Courts

Abstract

For the past two or three decades, under the influence of the interpretive method called textualism, courts have increasingly turned to general dictionaries when interpreting the meaning of contested terms. And the rate of increase has been striking. This resort to dictionaries is suspect for two main reasons: as practiced, it's arbitrary and unsystematic; and it's linguistically questionable for determining meaning in a legal context. This article looks primarily at the first point-the courts' arbitrariness when choosing which definition to apply. Using three cases from the Michigan Supreme Court, the article argues that the Court majority cherry-picked a definition that did not seem to fit with an English speaker's common understanding of the term in context and that ran counter to common sense, practical considerations, or the statute's purpose. While dictionaries may have modest value in judicial decision-making, courts too often give them a greater role-to the exclusion of reasonable nontextual arguments.