Lemley on Chief Justice Webster @marklemley

Mark A. Lemley, Stanford Law School, has published Chief Justice Webster. Here is the abstract.

The Supreme Court has a love affair with the dictionary. Half of its decisions in the 2018 term cited a dictionary, often as the primary or exclusive means of defining a term in the statute. The Solicitor General may long have been the “tenth Justice,” but in the 21st century the Chief Justice of the Supreme Court may as well be, not John Roberts, but Noah Webster. The Court’s obsession with dictionaries as the arbiter of statutory meaning is a recent phenomenon. A review of cases from 50 or 100 years ago reveals no such focus. The Court’s increased use of dictionaries may stem from the idea – very much in vogue today in some quarters – that courts are not to make law but simply “call balls and strikes.” Looking up a term in the dictionary can seem like the height of judicial restraint. A court that does so isn’t consciously or subconsciously imposing its own ideology on a statute; it’s just turning to a trusted neutral source. That impression is misleading. Dictionaries are not the neutral, commonly-accepted panacea the Court seems to suppose. In this Article, I discuss a historical test case for the use of dictionaries to interpret legal documents. In the early 2000s, patent law flirted with the use of dictionaries to define the terms of patent claims, a process akin to statutory interpretation. The Federal Circuit (the national patent court) unanimously abandoned that experiment after only three years, for a simple reason: it was a disaster. The lessons of patent law’s brief flirtation with dictionary primacy in claim construction suggest that it’s a bad idea to turn to dictionaries to interpret statutes. That’s true for several reasons. Dictionaries aren’t designed to give what courts want: a single definitive meaning (or complex of considerations) that define what the law is. Dictionaries deliberately define terms expansively and in self-contradictory ways, seeking to capture all possible meanings of a term, not to pick among them. They don’t take legal nuance into account, and they can’t incorporate a background pattern of behavior or centuries of precedent against which Congress may have adopted a term. The use of legislative history is often attacked as a cover for judicial activism, but in fact it is the dictionary that provides the easiest cover for activist decisions that depart from Congressional intent and precedent. Dictionaries can literally justify any plausible meaning of a term. Courts that turn to them are doing exactly what they purport to disdain: picking the meaning of a statute based on their own personal preferences.

Download the article from SSRN at the link.