June 30, 2011
The California Supreme Court regularly cites dictionaries but does so far less often than the U.S. Supreme Court
In this recent New York Times article, Adam Liptak discusses the U.S. Supreme Court’s increasing citation to dictionaries in its opinions. Liptak notes that, in recent years, the Court has turned more and more to dictionaries to define not only technical terms but also everyday terms. He observes that the Court has “used dictionaries to define 295 words or phrases in 225 opinions in the 10 years starting in October 2000.” This is, he reports, “an explosion by historical standards. In the 1960s, for instance, the court relied on dictionaries to define 23 terms in 16 opinions.” Liptak suggests this is some cause for concern, quoting Jesse Sheidlower, editor at large of the Oxford English Dictionary, who said: “‘I think that it’s probably wrong, in almost all situations, to use a dictionary in the courtroom. . . . 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’s article made us wonder how often the justices of the California Supreme Court turn to dictionaries when crafting their opinions. We found 31 California Supreme Court decisions in the last ten years that discuss or cite dictionary definitions, often of terms in common usage or with which the Court is otherwise already familiar. (In one notable example, the Court looked to Webster’s Collegiate Dictionary to define the term “unlawful” as used in Labor Code section 2802. (Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 952, fn. 6.)) A comparison of these figures with those cited by Liptak reveals that—despite the issuance of a comparable number of opinions—the California Supreme Court currently relies much less heavily on dictionaries than does the U.S. Supreme Court. Given the concerns Liptak has identified, that might be a good thing.
But what is most interesting in reviewing the California Supreme Court’s decisions is the different weight the Court has accorded to dictionary definitions at different times. In the majority of decisions, the Court seems to wholeheartedly endorse the use of dictionaries to determine word meanings. (Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111, 1121-1122 [“When attempting to ascertain the ordinary, usual meaning of a word, courts appropriately refer to the dictionary definition of that word”]; People v. Leal (2004) 33 Cal.4th 999, 1009 [“‘Courts frequently consult dictionaries to determine the usual meanings of words’”].) But in other decisions, the Court has declined to apply dictionary definitions at face value when deciding a case, citing Judge Learned Hand’s dictum that a court should not make “‘a fortress out of the dictionary.’” (MacKinnon v. Truck Ins. Exchange (2003) 31 Cal.4th 635, 649, quoting Cabell v. Markham (2d Cir. 1945) 148 F.2d 737, 739; see also In re David V. (2010) 48 Cal.4th 23, 27 [rejecting Oxford English Dictionary’s definition of “wear” as partially inconsistent with “modern American usage”].)