Fordham Law

Professor James Brudney Article Cited in Book by Leading Federal Judge

November 22, 2013

Fordham Law Professor James Brudney was cited in Richard A. Posner’s most recent book, Reflections on Judging. In his book, Posner discusses his thirty-one years as a judge in the United States Court of Appeals for the Seventh Circuit, observing how the judiciary has changed in that time and engaging with what he sees as its main issues. On the subject of legal textualism, he references Brudney and co-author Ohio State University Political Science Professor Lawrence Baum’s article Oasis or Mirage: The Supreme Court’s Thirst for Dictionaries in the Rehnquist and Roberts Eras. Quoting at length from the article’s findings on the justices’ “subjective, standardless, and seemingly impulsive dictionary practices,” Posner describes these and other conclusions in the article as “devastating.”

While Posner’s view is that dictionaries should never be used in the courts, Brudney’s article takes a more moderate stance.  Based on their extensive empirical and doctrinal analyses, Brudney and Baum recommend several steps the justices should take to address their “dictionary habit”—by reducing reliance but also by establishing patterns of usage that are more principled and transparent. In Brudney’s view, “dictionaries have become something of a fetish for the Court, with reliance rising by as much as tenfold since the mid-1980s.”  He adds that the justices’ tendency to cherry-pick definitions that confirm their own interpretation of a word is a far cry from dictionaries’ intended function as a descriptive record of what words have meant in the past.

Brudney and Baum’s article has just been published in the William and Mary Law Review November 2013 Issue.