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02/04/2018

Neal Goldfarb on Justice Gorsuch's Dictionaries
Michael Ramsey

Neal Goldfarb (LAWnLinguistics) sends comments on two previous posts: 
 
1. Nourse and pragmatic enrichment [see this post]. A clear example of an interpretation based on pragmatic enrichment is Barron v. Baltimore. The constitutional language is a passive-voice construction in which the semantic role of Agent -- which is inherently part of the semantics of a transitive verb such as take -- is not expressed, and therefore has to be inferred.

There are also cases in which an essential semantic role (other than agent) is not expressed and therefore has to be inferred. Two examples:

PDK Laboratories, Inc. v. DEA, 362 F.3d 786 (D.C. Cir. 2004) (verb: divert; unstated semantic role:  PATH/LOCATION/SOURCE from which something is diverted).

Abbott v. United States, 562 U.S. 8, 18-19 (2010):

The leading portion of the “except” clause, which now prefaces §924(c)(1)(A), refers to a “greater minimum sentence … otherwise provided by this subsection,” i.e., by §924(c) itself; the second segment of the clause refers to a greater minimum provided outside §924(c) “by any other provision of law.” Beyond debate, the latter instruction does not relieve a §924(c) offender of additional punishment “simply because a higher mandatory minimum sentence exists in the United States Code.” Brief for Petitioner in No. 09–479, p. 19 (hereinafter Abbott Brief). Were it otherwise, the statute’s ascending series of minimums, set out in §924(c)(1)(A)–(C), would have no work to do; the only possible §924(c) sentence would be the Code’s highest—life. The “except” clause, it is therefore undisputed, “has to have some understood referent to be intelligible.” United States v. Parker, 549 F. 3d 5, 11 (CA1 2008). What should that referent be? As we comprehend the clause, to determine whether a greater minimum sentence is “otherwise provided … by any other provision of law,” the key question one must ask is: otherwise provided for what
  
Agreed.  Great examples.
 
2. Gorsuch's dissent in Artis [See this post]. We obviously have different opinions of the quality of Gorsuch's textual analysis. Take a look at my post about the dissent if you haven't already seen it. And that post doesn't even get to what I think are the more fundamental flaws in the dissent -- I'll deal with those in a second post that I'm working on. Without going into details here, if you compare Gorsuch's dissent to the two opinions in Smith v. U.S. (re: using a firearm), his dissent differs from Scalia's approach in much the same way that O'Connor's opinion did, but to a much greater extent.
 
His post on Gorsuch and the Artis case is here: #GorsuchDictionaries: Into the lexicographic weeds (updated, and updated again).  From the introduction: 
 
What this post [is] about is Gorsuch’s choice of dictionaries to cite in his Artis dissent. As the title suggests, it will be heavy on lexicography, but it will also touch on what that choice says about whether Gorsuch is a snoot, like his predecessor was, and if so whether that ought to play a role in his decision about what dictionaries to cite. I also plan on doing a separate post to talk about the contrasting approaches to word meaning that are on display in Artis, both of them resonating, though in opposite ways, with what I’ve written about that subject (linklink).

As you may have gathered know if you’re familiar with some of the things I’ve written about word meaning, I’m not a big fan of the central role that dictionaries play in the way lawyers, judges, and legal scholars deal with issues of word meaning. For this post, though, I’ll put that dissatisfaction aside, and will treat the use of dictionaries as perfectly appropriate interpretive tools.

THE ISSUE of which dictionary to use is a recurring one in the academic literature about judges’ use of dictionaries. It’s usually discussed under the rubric of “dictionary shopping”—the practice of looking for the definitions that are most supportive of the result you want to reach. That practice is of course the norm for lawyers arguing cases, but it’s problematic for judges or legal scholars, who aren’t supposed to start out with a preferred outcome and then reason backward to the arguments that can support it. However, there is at least one circumstance in which selectiveness about the dictionaries that one cites can be appropriate: when the purpose of citing the dictionary is merely to show that a particular reading of the word in question is possible. And in fact that was Gorsuch’s purpose in relying on the definitions he cited; he was arguing that the statute was ambiguous.

Nevertheless, Gorsuch’s dictionary choices in Artis are subject to some significant criticisms in terms of what might be called lexicographic relevance; the definitions he relies on don’t necessarily shed much light on the meaning of the statutory language that was in dispute. And in that respect, the dissent is not the first time that judges have gone lexicographically astray. ...

(With extensive discussion of what's wrong with Gorsuch's dictionary choice in Artis.)

SOMEWHAT RELATED, from a few years back:  Gregory Maggs: A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution (Geo. Wash. L. Rev. 2014).