This Note argues that new textualists should abandon dictionaries as a source for legal interpretation. Textualists believe in restricting judges to the intent discernible from the words of a statute and contend that legislative history is unacceptable as a source of this intention. Both of these sentiments lead textualists to dictionaries as the intuitively correct solution for ambiguities in a text. The author argues, however, that dictionaries by their very nature cannot help discern between reasonable definitions at the margins of meaning. The use of dictionaries in these situations allows for a sham formalism, unrestrictive in result and unrevealing of a judge's extra-legal considerations.
As a replacement for dictionaries, this Note suggests a classic method of legal thought: analogical reasoning. The author proposes that a judge faced with an ambiguous yet basic term should develop analogous phrases for the term's possible usages. In reasoning among these analogies a judge would develop and articulate principles, revealing her legal and extra-legal considerations. The very transparency of the process would result in a restrictiveness based on the judge's need to meet her peer's process values.
Against Dictionaries: Using Analogical Reasoning to Achieve a More Restrained Textualism,
U. Mich. J. L. Reform
Available at: https://repository.law.umich.edu/mjlr/vol38/iss3/4