Legal Docket: Defining the law

JENNY ROUGH, HOST: It’s Monday the 5th of August.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Jenny Rough.

LINDSAY MAST, HOST: And I’m Lindsay Mast.

Time now for Legal Docket. Almost all Supreme Court cases have one thing in common.

ROUGH: They do. We’ll give you a hint with this quote from the late Justice Antonin Scalia. It comes from one of his written dissents in a case called PGA Tour versus Casey Martin. He wrote, “We justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States … to decide, what is golf.”

MAST: What is golf? Well, of course golf isn’t what Supreme Court cases have in common. Rather … it’s words … their definitions and meanings. Jenny, today you’ve got a story about a man who has devoted his life to defining legal terms.

JENNY ROUGH, LEGAL CORRESPONDENT: Acquittal. Declaratory judgment. Felony. Interrogatories. Magistrate. Remand. Venue.

The law is full of legal jargon!

Terms like those … and many more … are compiled in Black’s Law Dictionary. It’s the most widely cited legal text in the world. And I tracked down the man behind the book.

BRYAN GARNER: Black’s Law Dictionary is full of terms of art that have special meanings to lawyers.

Bryan Garner is a lexicographer. He studies words and is the author of Black’s, originally named after legal scholar Henry Campbell Black, who compiled the early editions. As Legal Docket segments often highlight … Supreme Court cases commonly boil down to dueling definitions.

But Garner says just because a word is argued in a lawsuit … even at the heart of it … doesn’t automatically make it a legal term. For example, Boston Cream Pie.

GARNER: And there was a trademark dispute about what qualifies as a Boston Cream Pie. I don't think that belongs in Black's Law Dictionary.

Neither does the word burrito. Or sandwich.

GARNER: Even though there was a famous dispute about whether a burrito qualifies as a sandwich up in Massachusetts.

A contract dispute between Panera and Qdoba over selling sandwiches in a shopping center.

GARNER: Does that make it a legal term? I would say no. … My view is it has to be a legal term or a law-related term. The mere fact that it’s been the subject of litigation? No.

So how does someone become the editor-in-chief of one of the most referenced legal books? Well, it all started with a much younger Bryan Garner. He first fell in love with language as a boy. He suspects it’s genetic. His father and grandfather loved language, too.

GARNER: My grandfather was a state Supreme Court Justice down in Austin on the Texas Supreme Court. … When I was just three or four years old, I couldn't reach the table. And he used this big Webster's Second new international dictionary, which is a huge dictionary as my booster seat. That dictionary ended up becoming one of my favorites.

Webster’s Second is also a favorite of many textualist judges.

By the time Garner was in grade school he moved from sitting on dictionaries to reading them. And he knew more about grammar than some of his teachers!

GARNER: A student teacher, who was going for her certification asked for a contraction … “Can anybody name a contraction?” And so the other kids were saying won't, and shouldn't, and couldn't, and wouldn't. … And my hand shot in the air. And I said, “Shan't.” And she said, “No, that's not a word.”

Shall not. Shan’t. S-h-a-n apostrophe t. When the class broke for recess, Garner looked in the dictionary. More than anything, he had an intellectual curiosity.

GARNER: And I took the dictionary over to her. … It is a word, look, it's a word. And she refused to look at it. And said, “No, I don't care what the dictionary says. I’m not looking at that. It’s not a word.”

That piqued his interest even more. What counts as a word? What doesn’t?

Then … girls came along.

GARNER: When I was 15 years old, a girl that I much admired made an offhand comment.

As they talked, Garner used the word facetious.

GARNER: She said, “You know, you have a really big vocabulary.” And that comment changed my entire life. I thought, well, if that is a strength, then maybe I should build on it.

One winter, he went on a ski trip with his friends. Along with a hat and gloves, he packed a binge-worthy book.

GARNER: This book was one of the most fascinating books I had ever held in my hands. … The first day of the ski trip, I didn't leave the ski lodge. I stayed in the lodge and just drank hot chocolate and read Eric Partridge's Usage and Abusage and I could not put it down.

Usage and Abusage talks about problematic words and expressions. Like the difference between overlay and overlie … overlook and look over … overflowed and overflown.

GARNER: Wait. Should it be this? Or should it be that? … This was very much a closet interest, by the way. This is not something you openly talk about with your friends.

It led to his life’s work. He went to law school There, he became captivated by legal language.

GARNER: But my first week in law school, I was so fascinated by the legal terminology and all the cases, the old cases we were reading that had a lot of Elizabethan terms. Burden spelled burthen. B u r t h e n. For example, in 19th century judicial opinions using an Elizabethan variant spelling of burden. … Doth. D-o-t-h, as late as the 1980s, the Supreme Court of Mississippi was using d-o-t-h instead of does.

In the 1990s, the then-editors of Black’s Law Dictionary asked if Garner would help them redraft it. He’s been doing so ever since. Garner’s offices are in Dallas, Texas. He has a team of four lawyers and one paralegal.

And he says in their line of work, it’s much harder to define short, common words than long, infrequent words.

GARNER: The easiest words in a dictionary to define are the rarest, because a rare word has only one meaning, typically.

Like the word “exculpatory:” meaning free from blame or accusation. A one-line definition in Black’s.

GARNER: But words that are on everyone's lips that people use all the time typically have many meanings and functions.

Much harder to define. Like the word “damages” … that one has five pages of entries. It goes on and on and on!

Many legal terms consist of Latin phrases. Pro bono … for the good. Habeas corpus … show me the body. But Garner says he’s a proponent of avoiding Latin-isms. He prefers plain ol’ English.

GARNER: Now some people would say, well, Bryan, aren't you a hypocrite? You say you're a plain English guy. But you have added hundreds and hundreds of Latinisms into Black’s.

True.

GARNER: And the reason is, I think anybody reading a historical legal text, who wants to know the meaning of a word, ought to be able to find out what it means.

In addition to his office team, Garner relies on a panel of about 30 academics … law professors to help review terms in particular areas of practice. For example, a contracts professor to review the specialized terms in contract law.

He also works with a church history specialist. Because a lot of legal language ties into medieval ecclesiastical terms. He says that’s because our law interprets text from a lot of old statutes. And statutes don’t become defunct. Once a statute is in effect, it stays that way unless it’s abrogated or repealed.

But new language is just as important. Garner says when people find out he’s the editor of Black’s, they love to introduce him to their favorite terms. A public defender once asked Garner if he’d heard of the SODDI defense. S-O-D-D-I.

GARNER: And I said, “The what?” The SODDI defense. It’s a term we use all the time. … He said, “Well, it means the ‘some other dude did it defense’.” Criminal defense lawyers use it. The Some Other Dude Did It defense, the SODDI defense.

Garner did some research and verified published instances of it. Enough to justify an entry in Black’s.

So how does he go about defining a term? He starts with court decisions.

GARNER: Looking at probably dozens of decisions by federal appellate courts and state appellate courts. Lots and lots of decisions. Reading them contextually.

Also, legislative definitions. Maybe a treatise or two. But he doesn’t limit himself to the law. He might look to anthropology textbooks … or sociology … to understand how other fields define a word. Once he gathered all the raw material, he’ll then compose the most authoritative definition.

And he tries his best to be a faithful, omniscient narrator. Meaning, he doesn’t show bias. For example, take the terms textualism and consequentialism. Two different judicial philosophies. Personally, he prefers textualism. He thinks consequentialism is a bad way of deciding cases.

GARNER: But I’m not going to express any kind of disapproval, or even have a hint of it in my definitions.

You might be wondering: How many terms total does Black’s Law Dictionary contain? An easy question, but no easy answer! Because one entry can have multiple definitions.

GARNER: If you go to how many definitions, well, there could be, in some terms, 8, 9, 10 definitions because there are different senses of a word, like equity.

Black’s has about 58,000 entries … but 100,000 definitions! Most professionals use an abridged version.

A love of words fuels life-long learning. That’s why Garner encourages people to read dictionaries … legal ones, standard ones, any ones! Because the war of words doesn’t only happen in courthouses. It happens in our daily lives.

GARNER: I think it is a bad idea to think you’re going to pick up the meaning of words by osmosis.

Instead? Anytime you read—

GARNER: Keep track of the words that you don't know precisely what they mean.

And look them up.

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