Washington and Lee Law Review

Volume 63 Issue 2 Article 4

Spring 3-1-2006

The Dictionary and the Man: The Eighth Edition of Black's Law
Dictionary, Edited by Bryan Garner
Roy M. Mersky

Jeanne Price

Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr

Part of the Legal Education Commons

Recommended Citation
Roy M. Mersky and Jeanne Price, The Dictionary and the Man: The Eighth Edition of Black's Law
Dictionary, Edited by Bryan Garner, 63 Wash. & Lee L. Rev. 719 (2006).
Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol63/iss2/4

This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington and
Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law
Review by an authorized editor of Washington and Lee University School of Law Scholarly Commons. For more
information, please contact [email protected].
 The Dictionary and the Man: The Eighth
Edition of Black's Law Dictionary,
Edited by Bryan Garner

Roy M. Mersky*
Jeanne Price**

Bryan Garner is a man with a mission: a dictionarian,' if not a dictioneer.2

3
Garner, in again updating and revising the "standard U.S. law dictionary,
seeks not only to accurately define a comprehensive list of legal terms, but
more fundamentally, to elevate legal scholarship. 4 It is an ambitious
undertaking (and one whose premise might be questioned by many scholars).
But if there is anyone suited for such pursuits, in both intellect and
temperament, it is Bryan Garner.
Most of us think of dictionaries as handy reference tools, to be consulted
when all else fails. In 1910, a reviewer of the second edition of Black's Law
Dictionary(Black's)5 was clearly in desperate straits when the book arrived to
his rescue: "We were so grateful for the assistance rendered by this work in a
moment of exigency when it arrived that we are not disposed to view it other
than favorably."6 And, as practical tools to students and scholars alike, legal

* Roy M. Mersky is the Harry M. Reasoner Regents Chair in Law and Director of
Research at the University of Texas.
** Jeanne Price is associate director for patron services, research, and instruction at the
Tarlton Law Library, Jamail Center for Legal Research, University of Texas. Marlyn Robinson,
reference librarian at the Tarlton Law Library, University ofTexas, provided valuable research
assistance in the writing of this article. The bibliography of Bryan Garner's publications which
follows this article also represents Ms. Robinson's contribution. Bryan Garner's papers and
correspondence related to the eighth edition of Black's are part of Tarlton Law Library's special
collections.
1. THE OXFORD ENGLISH DICTIONARY 625 (2d ed. 1989) ("The maker of a dictionary; a
lexicographer.").
2. Id. at 626 ("One who makes it his business to criticize diction or style in language.").
3. ROBERT BALAY, GUIDE TO REFERENCE BOoKS 1116 (11th ed. 1996).
4. BLACK'S LAW DICTIONARY ix (8th ed. 2004) ("[The eighth edition] continues the effort
begun with the seventh edition: ... to raise the level of scholarship through serious research and
careful reassessment.").
5. BLACK'S LAW DICTIONARY (2d ed. 1910).
6. Book Review, 5 Nw. U. L. REv. 582 (1911) (reviewing BLACK'S LAW DICTIONARY (2d
ed. 1910)).
 63 WASH. & LEE L. REV 719 (2006)

dictionaries are well-used. However, Garner's dictionaries (and, in due time,

they may well be called such-as opposed to Black's), while satisfying the
demands of the definition-hungry in times of famine, aspire to greater goals.
The eighth edition of Black's, continuing the mission begun in the seventh,
seeks to educate, inform, analyze, and describe from a higher perspective.
Garner's definitions are current and succinct, yet are placed in a historical
perspective and in a context of usage that is sensible and, in many cases,
enlightening. If, as it has been suggested, dictionaries "reveal a truth," 7 the
eighth edition of Black's strives to reveal a higher truth, one that has solid (and
cited) foundations in centuries of American and English jurisprudence.
Black's is the last standing comprehensive American legal dictionary
intended for a wide audience. Unlike Bouvier's8 and Ballantine's,9 which have
not been updated in decades, Black's is supported by the West/Thomson legal
publishing behemoth and benefits from the resources that publisher provides.
As the sole remaining current example of a long legacy of American legal
dictionaries, there may be little need for a review of Black's eighth edition.
After all, if a current, comprehensive legal dictionary is required, one has no
choice but to turn to Black's. But, because we think the eighth edition makes
significant contributions to lexicography and distinguishes itself from its
predecessors, review it we will.
We might choose any number of criteria for an evaluation of the eighth
edition. 10 What is most important in assessing its value, though, both as a
reference tool and as a work of scholarship, is how well it fulfills its purposes.
Garner has set lofty purposes indeed. The eighth edition fulfills its purposes
well; its distinctiveness as a law dictionary-the personality, if you will, of the
work itself and of its editor-is, in part, what enables it to so effectively
accomplish (or nearly accomplish) those goals.

7. Ellen P. Aprill, The Law of the Word. DictionaryShopping in the Supreme Court, 30
ARiz. ST. L.J. 275, 284 (1998) (quoting JONATHON GREEN, CHASING THE SuN: DICTIONARY
MAKERS AND THE DICTIONARIES THEY MADE 16 (1996)). Aprill stated, "One historian of
lexicographers explains that for both Dr. Johnson and Noah Webster 'their role was not simply
to select a word list, define it, and make it available to the reading public; in addition they took
on the priestly task of revealing a truth, in this case a linguistic one, to those who, like lay
parishioners, were less than perfectly versed in its subtleties."' Id. (emphasis added).
8. BOuviER's LAW DICTIONARY (Century ed. 1934).
9. BALLENTNE'S LAW DICTIONARY (3d ed. 1969).
10. See, e.g., Norman Stevens, EvaluatingReference Books in Theory and Practice,15
REFERENCE Lm. 9, 13-15 (1986) (listing criteria suggested by reviewers of reference works,
including accuracy, appropriateness, arrangement, authority, bibliography, comparability,
completeness, content, distinction, documentation, durability, ease of use, illustrations, index,
level, reliability, revisions, and uniqueness).
THE DICTIONARY AND THE MAN

1. "The business of the lexicographeris... to do what... cannot

be done.... "11

It is well to distinguish between the purpose of a dictionary (and a law

dictionary, at that) and the intent behind the individual definitions that make up
the dictionary as a whole. And, while the dictionary itself, as well as the
definitions of which it consists, should be both comprehensive and convenient
(the "two canons of lexicography"1 2), the line between "completeness and
madness" 13 is a very hard one to draw.
To define is to set limits. 14While other endeavors encourage creativity in
word use, the law does not. Though e.e. cummings (a format which would be
recognized by none of the Bluebook, the Maroonbook, the Greenbook, or
ALWD 15) might write of the "pale club of the wind"'16 and Ben Okri of "an
eternal smile of riddles,"' 17 we do not encourage radically new word use in the
law. Consider the meaning invested in the word "mother" by Saddam Hussein
when he spoke of the "mother of all battles"18 (now a fairly common use of the
word). Though it might be appropriate for a general language dictionary to
reflect this meaning of the word (and the eleventh edition of Webster's
Collegiate does' 9), there is no corresponding need for that sense in a legal
dictionary. It is irrelevant. The "legal" definition of "mother" has certainly

11. Aprill, supra note 7, at 296 (quoting Lawrence Solan, When Judges Use the
Dictionary,68 AM. SPEECH 50, 53 (1993)).
12. Henry Campbell Black, 5 HARV. L. REv. 155, 155 (reviewing BLACK'S LAW
DICTIONARY (1st ed. 1891)) ("The first canon of lexicography relates to substance: A dictionary
must be comprehensive; the second, to form: A dictionary must be convenient.").
13. See Dwight Macdonald, The String Untuned, NEW YORKER, Mar. 10, 1962, at 145
(reviewing WEBSTER'S NEW INTERNATIONAL DICTIONARY (uNABRIDGED) (3d ed. 1961)) ("One of
the problems of an unabridger is where completeness ends and madness begins.").
14. See id. at 150 ("It is a dictionary's job to define words, which means, literally, to set
limits to them.").
15. See generally THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (Columbia Law
Review Ass'n et al. eds., 17th ed. 2000); THE UNIVERSITY OF CHICAGO MANUAL OF LEGAL
CITATION (1989); TEXAS LAW REVIEW ASS'N, TEXAS RULES OF FORM (10th ed. 2003); ASS'N OF
LEGAL WRITING DIRECTORS, ALWD CITATION MANUAL: A PROFESSIONAL SYSTEM OF CITATION
(2d ed. 2003).
16. E.E. CUMMINGS, I HAVE FOUND WHAT You ARE LIKE, available at http://www.
americanpoems.com/poets/eecummings/1 1921 (last visited Nov. 12, 2005).
17. BEN OKRI, THE FAMISHED ROAD 263 (1991).
18. See Remarks by Hussein to Troops on Kuwait, N.Y. TIMES, Jan. 7, 1991, at A10
("[T]he battle in which you are locked today is the mother of all battles." (quoting Sadaam
Hussein)).
19. See MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 810 (11 th ed. 2003) ("mother...
5: something that is an extreme or ultimate example of its kind esp. in terms of scale.").
 63 WASH. & LEE L. REV. 719 (2006)

evolved (from "a woman who has bome a child, 20 in Black's fifth edition, to a
"woman who has given birth to, provided the egg for, or legally adopted a
child"'E2 in the eighth edition), but that evolution has been supported (and
authorized) by the judiciary, legal scholars, scientists, and practicing attorneys.
The prescriptivist/descriptivist debate 22 loses some relevance in the
context of a law dictionary. Law, and more specifically, the rituals and
mechanisms through which it is pronounced, invests words (and their senses)
with legitimacy and authority; it is the obligation of the law dictionary to reflect
those meanings and evidence the authority supporting them. The law
encourages predictability and certainty, and the definitions within a legal
dictionary ought to reflect the notion that words have established meanings in a
legal sense. What distinguishes a law dictionary from a mere "word book" (as
the New York Times once dismissed Webster's third edition 23) is its marshaling
of examples of word usage in legal contexts, its sense-making of those usages,
and its reliance on authority to justify its determination of what is appropriate,
in that legal context, and what is not.
Though many definitions in the eighth edition of Black's are enhanced by
West key number references, cross-references to Corpus JurisSecundum, and
quotations from recognized authorities, some definitions are not so supported
by evidence of their use.24 For the most part, these "unattributable" definitions
are for terms whose basic meaning is similar in legal and non-legal contexts
(e.g., mitigate, income, incognito), but there are other definitions for which the25
lack of authority is more problematic (where did the "error-of-judgment rule,
develop, and,26 in what scenarios can someone be said to exercise "due
influence"?).
And how is legal slang to be addressed? The eighth edition includes any
number of examples of law slang absent in prior editions. For these new

20. BLACK'S LAW DICTIONARY 913 (5th ed. 1979).

21. BLACK'S LAW DICTIONARY 1035 (8th ed. 2004).
22. See Macdonald, supra note 13, at 145 (discussing the prescriptivist and descriptivist
perspectives on dictionary making).
23. See Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a
Fortress: The United States Supreme Court's Use of Dictionaries,47 BUFF.L. REv. 227, 243
(1999) ("The New York Times, at least for a time, refused to call Webster's Third a dictionary,
instead referring to it as a 'word book."').
24. See generally BLACK's LAW DICTIONARY (8th ed. 2004).
25. See id. at 583 ("The doctrine that a profession is not liable to a client for advice or an
opinion given in good faith and with an honest belief that the advice was in the client's best
interests ....").
26. See id. at 538 ("The sway that one person has over another, esp. as a result of
persuasion, argument or appeal to the person's affections.").
THE DICTIONARY AND THE MAN

entries, some information about the derivation of the terms would have been
useful. Who knew that a smurf was, in fact, "a person who participates in a
money-laundering operation by making transactions of less than $10,000",?27
Though Garner notes that the term has its origins in a blue cartoon character,
he does not give any sources for his definition or any reason why the short blue
cartoon character is somehow related to money-laundering. Similarly, the more
familiar term "stool pigeon" appeared for the first time in Garner's eighth
edition. And, while the definition is certainly sound, there is no indication of
the derivation of the phrase.29
But these are minor quibbles. More interesting are those words that resist
concise definition. In his 1933 review of Black's third edition, Alexander
Hamilton Frey bemoaned the efforts of legal lexicographers to "define ...
words such as title, property.... which defy definition because they are
employed in legal terminology in a variety of senses for a variety of purposes
[and to] arrive at a concise crystallized definition. 30 Frey longed for "an
honest law dictionary... 1
in which the editor does not hesitate to discuss where
definition is fatuous.'
Definitions create categories; concepts either fall within those categories
(and therefore are included in the senses of a word) or do not. Those
categories, in turn, set forth a number of necessary and sufficient conditions for
inclusion within them. The "easy" members of a category clearly satisfy those
conditions; the outliers, occurring at the "fuzzy" edges of the category cause
more problems.32 A robin is obviously a good example of a bird, a penguin less
so.33 Garner defines "property," first, as "the right to possess, use and enjoy3 a4
determinate thing (either a tract of land or a chattel); the right of ownership,
and, second, as "any external thing over which the rights of possession, use and

27. Id. at 1423.

28. Id.
29. Id. at 1459 ("(1) An informant, esp. a police informant.").
30. Alexander Hamilton Frey, 82 U. PA. L. REv. 886 (1934) (reviewing BLACK'S LAW
DICTIONARY (3d ed. 1933)).
31. Id. at 887.
32. See Note, Looking It Up: Dictionariesand Statutory Interpretation,107 HARv. L.
REv. 1437, 1451 (1994) ("Words are fuzzy at the margins .... [Tihe conditions for membership
in a word category 'are not always readily accessible by intuition."' (quoting Solan, supra note
10, at 53)).
33. GEORGE LAKOFF, WOMEN, FiRE,AND DANGEROUS THINGS: WHAT CATEGORIES REVEAL
ABouT THE MIND 56 (1987) (referring to the "bird" category). For a general discussion ofbasic
level categories and prototypical category members, see id. at 1-156.
34. BLACK'S LAW DICTIONARY 1252 (8th ed. 2004).
 63 WASH. & LEE L. REV. 719 (2006)

enjoyment are exercised. 3 5 So, for a concept or thing to fall within the second
definition of property, it must be a thing and it must be subject to ownership by
an individual who is entitled to use it. Definitions of forty-eight related terms
that incorporate the word "property" (e.g., "lost property," "intellectual
property," "mislaid property," "real property," and "wasting property"), and that
evidence the evolution of the concept, follow Garner's succinct definitions of
the word.36 Multivolume treatises have been written on property; because we
understand Gamer's definition does not mean that we can fathom all of its
implications. But the definition of "property," and the definitions of related
terms that follow, enable us to "see" property in a legal context and to witness
the development of related concepts that have grown out of the idea of property
itself.
Unlike books written on style and usage (legal or otherwise)-which, as
David Foster Wallace has pointed out, are of most interest to those who need
them least 37-- dictionaries are used frequently, in a variety of situations, and by
very different individuals. How is it possible to satisfy the first year law
student or layperson, as well as the judge, the legal academic, and the
practicing lawyer? For the law student or layperson, the legal dictionary is
much like a bilingual dictionary,38 introducing the student to words never
before encountered, to words whose legal meanings are very different from
their common ones, and to words whose use in a legal context are replete with
nuances not obvious to those not versed in law. After all, as the introduction to
a dictionary published in 1661 noted, dictionaries
39
are "very useful for all such
as desire to understand what they read.

35. Id.
36. Id. at 1252-55.
37. David Foster Wallace, Tense Present: Democracy, English, and the Wars over
Usage, HARPER'S MAG., Apr. 2001, at 39, 40.
38. MORRIS L. COHEN, ROBERT C. BERRING &KENT C. OLSON, HOW TO FND THE LAW 412
(9th ed. 1989) ("You are outlanders in this country of the law. You do not know the speech. It
must be learned. Like any other foreign tongue, it must be learned: by seeing words, by using
them until they are familiar; meantime, by constant reference to the dictionary .. " (quoting
KARL LLEWELLYN, THE BRAMBLE BUSH: ON OUR LAW AND ITS STuDY 39(1981))). As an aside,
we should note that there are any number of bilingual and multilingual legal dictionaries.
Gerard-Rene de Groot and Conrad J.P. van Laer have published an annotated and critical
bibliography of bilingual and multilingual legal dictionaries. GERARD-RENE DE GROOT &
CONRAD J.P. VAN LAER, BILINGUAL AND MULTILINGUAL LEGAL DICTIONARIES IN THE EUROPEAN
UNION: A CRrrlcAL BBLIOGRAPHY, http://arno.unimaas.nl/show.cgi?fid=3130 (last visited Nov.
17, 2005).
39. GLOSSOGRAPHIA: OR A DICTIONARY, INTERPRETING ALL SUCH HARD WORDS OF
WHATSOEVER LANGUAGE, NOW USED IN OUR REFINED ENGLISH TONGUE (Thomas Blount ed., 2d
ed. 1661) ("Very useful for all such as desire to understand what they read .... )
THE DICTIONARY AND THE MAN

The eighth edition contains definitions of over 40,000 terms, an increase

of 17,000 terms over the seventh edition.4° The student will find comfort in
understanding that property is a right,4' that libel must be expressed in a fixed
medium, 42 and that the Sherman Act pertains to antitrust. 43 The layperson will
welcome the concise explanation of a wraparound mortgage 44 or even of a
denial of service attack.45 The practitioner venturing outside his area of
expertise may turn to the definition of "debtor's examination" 46 to find citations
to sections of the Bankruptcy Code and to the federal rules of bankruptcy
procedure.47 The scholar, in addition to noting the forty-eight terms related to
"property," will appreciate citations to cases that establish the Shively
presumption,48 the comparativist to the description of mahr. 49 And, the
historian will revel in definitions of "deodand, 50 "the Mad Parliament, ''S
"livery in chivalry,, 52 and "parapherna. '0 3 If words are the weapons of a
lawyer,54 the eighth edition provides reliable and abundant ammunition.

40. Paul Hellyer, Keeping up with New Legal Times, 97 LAW LmR. J. 158, 158-59 (2005)
(reviewing BLACK's LAW DICTIONARY (8th ed. 2004)).
41. BLACK'S LAW DICTIONARY 1252 (8th ed. 2004).
42. Id. at 935.
43. Id. at 1410.
44. Id. at 1033.
45. Id. at 466.
46. Id. at 434.
47. Id.
48. See id. at 1411-12 ("The doctrine that any pre-statehood grant of public property does
not include tidelands unless the grant specifically indicates otherwise.").
49. See id. at 971 ("Islamic law. A gift of money or property that must be made by a man
to the woman he marries.").
50. See id. at 467 ("Something (such as an animal) that has done wrong and must
therefore be forfeited to the Crown.").
51. See id. at 969 ("In 1258, an assembly of 24 barons summoned to Oxford by Henry I
that ultimately carried out certain reforms to settle differences between the king and the
barons.").
52. See id. at 953 ("The delivery of possession of real property from a guardian to a ward
in chivalry when the ward reached majority.").
53. See id. at 1143 ("Property of a wife not part of her dowry... a married woman's
personal property .... ).
54. Dan Henke, Book Note, 65 A.B.A.J.1378, 1379 (1979) ("Words are a lawyer's best
weapons and when properly used add to effectiveness and profits." (reviewing BLACK'S LAW
DICTIONARY (5th ed. 1979))).
 63 WASH. & LEE L. REV 719 (2006)

2. "Words come into being, do service, and pass away, as really as

bodies.... "55

If words have a useful life, then so do dictionaries. Black's began in 1891; its
full title reminds us of a proud parent, christening his first-born-A Dictionaryof
Law ContainingDefinitions of the Terms andPhrasesof American and English
Jurisprudence,Ancient andModem Including the PrincipalTerms of International,
Constitutional,and Commercial Law; with a Collection of Legal Maxims and
Numerous Select Titlesfrom the Civil Law and Other ForeignSystems.56 The full
title of the second edition (repeated, with only slight variations, in the third) attests
to youthful exuberance-as new and exciting features are recalled, they burst
forth-
A Law Dictionary: Containing definitions of the terms and phrases of American
and English jurisprudence, ancient and modem. And including the principal
terms of international, constitutional, ecclesiastical, and commercial law, and
medical jurisprudence, with a collection of legal maxims, numerous select titles
from the roman, modem civil, scotch, French, Spanish and Mexican law, and
other foreign systems, and a table of abbreviations.57
By its fourth edition, the work had achieved a certain maturity; the titles to the
fourth, fifth, and sixth editions no longer include the litany of contents, but there is
still the need to describe what the work is-Black's Law Dictionary: Definitionsof
the Terms and Phrases of American and English Jurisprudence,Ancient and
Modem.5 8 By the seventh edition, any description on the title page has become
superfluous; having established itself and being in its prime, the dictionary, in its
59
seventh and eighth editions, is simply Black's Law Dictionary.
In style and content, the eighth edition reflects its past and the present. Words
and phrases, however seldom used, that have contributed to an understanding of
current jurisprudence continue to be included in the dictionary, often with an
61
explanation of their import (e.g., "disentailing deed,"6° "praesumitur pro negante,
steganography"62). New words and terms have been added-some terms we

55. William C. Anderson, Note, Law Dictionaries,28 AM. L. REv. 531, 532 (1894).
56. BLACK'S LAW DICTIONARY (lst ed. 1891).
57. BLACK'S LAW DICTIONARY (2d ed. 1910).
58. BLACK's LAW DICTIONARY (4th ed. 1951); BLACK'S LAW DICTIONARY (5th ed. 1979);
BLACK'S LAW DICTIONARY (6th ed. 1990).
59. BLACK'S LAW DiCTnONARY (7th ed. 1999); BLACK's LAW DICTIONARY (8th ed. 2004).
60. BLACK'S LAW DICTIONARY 501 (8th ed. 2004).
61. See id. at 1213 ("This is the rule of the House ofLords when the votes are equal on a
motion.").
62. See id. at 1453 (noting that it is a "cryptographic method").
THE DICTIONARY AND THE MAN

would expect, given our times and new developments in the law: "denial of
service attack,, 63 "same-sex marriage," 64 "cyberpiracy, ' 65 and "veggie-libel
law. , 66 But the eighth edition also includes, for the first time, terms like "ethnic
cleansing '' 67 and "zero-tolerance policy," 68 words that are familiar to us in more
than one context, but whose sense in a legal context is much harder to
articulate.
Since even the first edition of Black's, its editors have been conscious of
the encroachment of vocabulary from other fields into the discipline of law.
The second edition noted in its title that definitions would include "terms of
medical jurisprudence" ;69 and a reviewer noted in 1910 that
[t]he task of the compiler of a law dictionary becomes more difficult in
geometric progression year by year, as the scope, aim and study of the law
are broadened to include the rapidly-increasing bulk of human knowledge;
for °the law reaches out and bodily assimilates many of the sciences akin to
7
it.

By the fifth edition, the focus had shifted from science to finance; its preface
warned that the "ever expanding importance of financial terminology...
necessitated inclusion of numerous new tax and accounting terms. 7 1 By the
eighth edition, no special mention of words from other fields is expected-the
reader should assume that any and all terms having special meanings in a legal
context will be included.
In style, the seventh and eighth editions are concise and reflective of
modem usage. "Preemption" replaced "pre-emption, 7 2 and the word's
definition expanded to include not only the constitutional sense but also
commercial and real property senses. 73 For the constitutional sense, the
definition was simplified. From, in the fifth edition, "doctrine adopted by U.S.
Supreme Court holding that certain matters are of such a national, as opposed
to local, character that federal laws pre-empt or take precedence over state

63. Id. at 466.

64. Id. at 1368.
65. Id. at 414.
66. Id. at 1589.
67. Id. at 592.
68. Id. at 1649.
69. BLACK's LAw DICTIONARY (2d ed. 1910).
70. Clement R. Wood, Book Note, 20 YALE L.J. 423 (1911).
71. BLACK's LAW DICTIONARY iii (5th ed. 1979).
72. BLACK's LAw DICTIONARY 1177 (6th ed. 1990).
73. BLACK'S LAW DICTIONARY 1197 (7th ed. 1999).
 63 WASH. & LEE L. REV 719 (2006)

laws '7 4 to, in the seventh and eighth editions, "the principle (derived from the
Supremacy Clause) that a federal law can supersede or supplant any
inconsistent state law or regulation,"7 5 the revised definition both identifies the
source of the principle and clarifies its import.
The U.S. Constitution 76 and a table of British regnal years77 have long
been included as appendices to Black's. The eighth edition includes the
Universal Declaration of Human Rights, 78 a Federal Circuits map, 79 and a
thirteen page bibliography,80 citing sources as diverse as Safire'sNew Political
Dictionary (1993),81 Contracts in a Nutshell (1984),8" The Duty to Act
(1977),83 and A Treatise on the Nature, Principlesand Rules ofCircumstantial
Evidence (1868). 84
In reviewing (not altogether favorably) the third edition of Webster's in
1966, Dwight Macdonald suggested that "language expresses the special,
distinctive quality of a people, and a people, like an individual, is to large
extent, defined by its past. '' 5 Black's eighth edition reflects the current
language of the law and of lawyers; as Macdonald suggested, that language,
and the dictionary that records it, reflects, through citation, the events and
individuals that contributed to the state of the law as it exists today.

3. "Dictionariesareforced to carryfar more weight than they were or

could be designed to bear .. ,,86

What do the Hong Kong Polytechnic University, the Fargo Public Library,
the Canada Customs and Revenue Agency, the United States Institute of Peace,
the Xerox Corporation, the U.S. Army Corps of Engineers, and the Arnold &

74. Id. at 1060.

75. BLACK'S LAW DICTIONARY 1197 (7th ed. 1999); BLACK'SLAwDICTIONARY 1216(8th
ed. 2004).
76. E.g., BLACK's LAW DICTIONARY app. at 1703-15 (7th ed. 2000).
77. E.g., id. app. at 1727.
78. BLACK'S LAW DICIONARY 1783 (8th ed. 2004).
79. Id. at 1793.
80. Id. at 1797-1809.
81. Id. at 1808.
82. Id.
83. Id.
84. Id. at 1798.
85. Macdonald, supra note 13, at 159.
86. Looking It Up, supra note 32, at 1449.
THE DICTIONARY AND THE MAN

Porter law firm all have in common? 87 They are among the thousands of
institutions around the world that include in their library collections a copy of
Black's Law Dictionary. If asked to assess the relevance of Black's and the
extent to which it has fulfilled its purposes, one response might be-res ipsa
loquitor (in its Latin, not legal, sense, as defined by Black's).8 8 The
dictionary's ubiquity is evidenced by its presence in libraries and institutions of
all different ilks and locations. The dictionary has been in existence for more
than 1 10 years, is in its eighth edition, and has been translated into (of all
languages) Urdu. 89 As a current and comprehensive dictionary of American
legal terms, and as a standard reference work, Black's is simply unrivaled.
Early editions of Black's (perhaps as a testament to its novelty, if nothing
else) were reviewed in major law journals. 9° Although reviews of the seventh
and eighth editions have appeared in a number of journals, 9 1 the premier
publications of legal scholarship have not included reviews of recent editions of
Black's.92 This may speak more to the acceptance of Black's than anything
else.

87. To compose this list, the online databases of OCLC Worldcat,

http://www.oclc.org/worldcat/ (last visited April 1, 2006) and RLG, http://www.rlg.org/
index.php (last visited April 1, 2006) were consulted. A subscription is required for either
service.
88. BLACK'S LAW DICTIONARY 1336 (8th ed. 2004) ("res ipsa loquitor:... [Latin 'the
thing speaks for itself']").
89. Qanuni,Angrezi-Urdu lughat: Blaiks la' dikshanarise makhuz (2002) (published by
Islamabad: Muqtadirah-yi Qaumi Zaban).
90. Some reviews of the first edition include: Henry Campbell Black, 5 HARV. L. REv.
155 (1891-1892); Eli R. Sutton, Book Note, A Dictionaryof Law, ContainingDefinitionsof the
Terms and PhrasesofAmerican andEnglish Jurisprudence,Ancient and Modem, 1 MICH. L.J.
38 (1892); Book Note, 1 CORNELLL.J. 105 (1894); Book Note, 1 YALE L.J. 88 (1891-1892).
Reviews of the second edition include: Clement R. Wood, Book Note, 20 YALE L.J. 423,423-
24 (1911-1912); Jame B. Lichtenberger, Book Note, 59 U. PA. L. REV. 355, 355-56 (1910-
1911); Book Note, 9 MICH. L. REV. 455,455 (1910-1911); BookNote, 23 GREENBAG 197, 197
(1911). Reviews of the third edition include: Arthur A. Alexander, Book Note, 22 GEo. L.J.
657,657-58 (1933-1934); Alexander Hamilton Frey, Book Note, 82 U. PA. L. REV. 886, 886-
87 (1933-1934); Book Note, 20 VA. L. REV. 493, 493 (1933-1934); Book Note, 47 HARV. L.
REV. 170 (1933-1934).
91. See generally Richard Sloane, Book Review: Black's Law Dictionary, 11 U. TOL. L.
REV. 322 (1980); Henke, supra note 54; Hellyer, supra note 40.
92. General purpose dictionaries have not been widely reviewed in the past few decades.
But, with the 250th anniversary of the first publication of SAMUEL JOHNSON, A DICTIONARY OF
THE ENGLISH LANGUAGE (1773), occurring on April 15, 2005, a flurry of articles and books
relating to Johnson's dictionary have appeared. Some of the most entertaining (and
informative) of those articles are Henry Hitchings, The Word According to Dr. Johnson, FIN.
TIMES, Apr. 2/3, 2005, at W4; Sarah Burton, A Treasure House of Words and More, THE
SPECTATOR, Apr. 9, 2005, at 37 (reviewing HENRY HITCHINGS, DR. JOHNSON'S DICTIONARY: THE
EXTRAORDINARY STORY OF THE BOOK THAT DEFINED THE WORLD (2005)); Verlyn Klinkenborg,
 63 WASH. & LEE L. REV. 719 (2006)

But the relevance of dictionaries in general, and of Black's in particular, to

modem jurisprudence is best illustrated by the attention given to those works by
American courts, most notably the United States Supreme Court. Samuel
Thumma and Jeffrey Kirchmeier, in an exhaustive study of the use of
dictionaries by the Court, note that the Supreme Court first explicitly authorized
reliance on a dictionary in order to understand the meaning of particular terms
in 1920.93 The Court stated, "We deem it clear, beyond question-that the
court was justified in taking judicial notice of facts that appeared so abundantly
from standard works accessible in every considerable library." 94
If the standard for a dictionary's authority is its presence in "considerable"
libraries, then Black's surely passes the test. And, the Court has agreed, citing
all editions of Black's over 130 times, for definitions of terms as diverse as
"in," "shall," "cold blood," "stare decisis," "avoid," "attorney," "right," "wilful,"
"necessary," "tidelands," "color," and "moral turpitude. 9 5 Although the
Court's increased reliance on dictionaries has been criticized, as has the
tendency of individual Justices to select among definitions those which best suit
particular purposes, the fact that dictionaries play an ever more important role
in modem jurisprudence cannot be ignored. That alone indicates not only the
relevance of the dictionary (and the relevance of Black's as by far the most
frequently cited law dictionary), but96
also the need for greater scholarly attention
to the dictionary and its accuracy.

Johnson'sDictionary,N.Y. TIMES, Apr. 17, 2005, at sec. 4, p. 13. In a New York Times op-ed
piece, Jack Lynch noted that
[s]ince 1785, according to federal court records, American lawyers and legal
scholars have been using [Johnson's Dictionary] to unpack the meanings of our
founders' most important documents. In the last few years, Justices Ruth Bader
Ginsburg, John Paul Stevens, Clarence Thomas and Chief Justice William H.
Rehnquist of the Supreme Court have quoted Johnson in their opinions.
Jack Lynch, Op-Ed., Dr. Johnson's Revolution, N.Y. TIMES, July 2, 2005, at A15.
93. See Thumma & Kirchmeier, supra note 23, at 244-301 (noting that "the Court had
decided that taking judicial notice of dictionary definitions unquestionably was proper").
94. Werk v. Parker, 249 U.S. 130, 132-33 (1919).
95. Thumma & Kirchmeier, supra note 23, at 251-60.
96. In addition to the 1999 Thumma and Kirchmeier article, Joseph Miller and James
Hilsentger have very recently commented on the use of dictionaries in patent cases. See
generally Joseph Scott Miller & James A. Hilsenteger, The Proven Key: Roles and Rules for
Dictionariesat the Patent Office and the Courts, 54 AM. U. L. REv. 829 (2005).
Two recent cases, one at the trial court level, Ryan v. City of New York, 802 N.Y.S. 2d
854, 857 (N.Y. Sup. Ct. 2005), and the second in the Court of Appeals for the Federal Circuit,
Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005), highlight other courts' reactions to
reliance on dictionary definitions. Ryan involved two police officers who had sued the City of
New York; the judge set aside the jury's verdict after learning that the jury consulted a
dictionary to determine the meaning of "preponderance." See Ryan, 802 N.Y.S. 2d at 857 ("The
THE DICTIONARY AND THE MAN

4. "In about equal measure, I'm a lawyer, lexicographer,

97 an author,a
grammarian,and a teacher.

So, Black's eighth edition fulfills its purpose; it improves upon and
enhances the work of Garner's predecessors; and its relevance to students, the
lay public, practitioners, the judiciary, and to a lesser extent, scholars, can be
demonstrated. But, other than all that, why is it so special? What makes it
merit attention apart from its very practical usefulness? The answer lies less in
the content of the dictionary, and more in its style and in the approach
undertaken by its editor.
In reviewing Garner's tome on American usage, 98 David Foster Wallace
argued that it is no longer enough for a lexicographer to satisfy the two canons
of comprehensiveness and completeness. Additionally, the lexicographer must
be "credible." 99 And, Wallace found Garner to be eminently credible,
characterizing Garner as an authority "not in an autocratic sense, but in a
technocratic sense.'' ° The preface to the eighth edition evidences Garner's
approach to his undertaking-his goal is to "marshal legal terms to the fullest
extent possible and to define them accurately."' 1°1 It is the approach of a
military man-one committed to a well-conceived plan and who rigorously
implements that plan in an orderly, if not fastidious, manner. After all, the
eighth edition appears a mere five years following the publication of the
seventh edition. But, in that five year span, some 17,000 terms have been
added; that's 3,400 words each year, 65 words per week, and 13 words each
day (with only weekends off). Garner has the zeal of a missionary coupled with
the discipline of a conqueror, and it is this combination of devotion, single-
mindedness, and rigor that distinguishes the dictionary.

reading of the dictionary definition of 'preponderance,' with its various differences from the
definition in the court's charge on the law, creates a sufficient likelihood that plaintiffs were
prejudiced."). In Phillips,a patent case, the Federal Circuit Court of Appeals discounted the
value of dictionary definitions in deciding patent claims. See Phillips, 415 F.3d at 1321 ("The
main problem with elevating the dictionary to such prominence is that it focuses the inquiry on
the abstract meaning of words rather than on the meaning of claim terms within the context of
the patent.").
97. Bryan Garner, quoted in Dorothy F. Easley, Editor's Column: Bryan Garner
CounselsAppellate Lawyers and Judges on Effective Legal Writing, The Record,J. APP. PRAC.
SECTION, Winter 2005, at 20, 21 (interviewing Bryan Garner concerning his experiences in
appellate practice), availableat http//:www.flabarappellate.orglasp/record.asp.
98. Wallace, supra note 37, at 39-58.
99. Id. at 58.
100. Id.
101. BLACK'S LAw DICTIONARY 39 (8th ed. 2004).
 63 WASH. & LEE L. REV. 719 (2006)

Gamer's confidence in his mastery of the subject and his approach to

dictionary-building remind us of Henry Black. Black felt no compunction to
mindlessly mimic the language of judicial opinions "where, in any instance, in
his judgment a better definition could be found in treatises of acknowledged
authority or could be framed by adaptation in rearrangement."' 10 2 Black was not
hesitant to create a definition out of whole cloth; there are entries in his original
work for "which the definition had to be written entirely de novo."' 0 3 Garner is
more constrained--one suspects that he would be loathe to define a word
without sources (although those sources are often not mentioned). Yet his
confidence in his ability to identify reliable, succinct, and persuasive authorities
for his definitions enables him to fairly radically overhaul both the content and
the format of a work now in its eighth edition. Garner knows that his reader
will recognize and accept the authority of Blackstone and Charles Alan Wright;
Garner also acknowledges that Glanville Williams and Rollin Perkins (sources
credited for definitions in criminal law and jurisprudence) 04 are much less well
known. But Garner has no hesitation in citing those latter authorities; in his
estimation, "their work deserves more widespread attention." 10 5
Legend has it that, even in law school at the University of Texas, Garner
kept his definition note cards close at hand, routinely noting word usage and
authority. Those entries, meticulously supplemented over the years, formed the
basis for Garner's approach to his editorship of Black's-ajudgmental hand
applied to exhaustive research and thorough analysis. Garner is credible
because of the logic of his approach, his thoroughness, and his absolute faith in
both his mission and its product. The content of a dictionary should withstand
criticisms of subjectivity; Garner's eighth edition does so because of its reliance
on authority. But the style of a dictionary need not be bland or indistinct;
recognition of the stamp of its editor makes a dictionary more interesting, and if
that stamp of individuality is emphatic in its authority, the dictionary is all the
more useful and relevant not simply as a mere "word book," but as a well-
considered, scholarly, and contemporary reflection of our language.
We suspect that the character of the eighth edition reflects the personality
of its editor. What is distinctive and unique about that character (and
personality) enables the eighth edition to fulfill its purposes so effectively. The
dictionary is strong, consistent, and emphatic; it backs up its claims with ample

102. Book Review, 1 MICH. L.J. 39 (1892) (reviewing BLACK's LAw DICrIONARY (1st ed.
1891)).
103. BLACK'S LAW DICrIONARY (1st ed. 1891).
104. BLACK'S LAW DICTIONARY x (7th ed. 1999).
105. Id.
THE DICTIONARY AND THE MAN

authority, and it discourages dissent. Language may, indeed, express the

distinctive quality of a people; 1°6 a good dictionary necessarily reflects the
distinctive qualities of its editor. And, we can be thankful that Bryan Gamer's
character is reflected in the eighth edition.

106. See Macdonald, supra note 13, at 159 ("Language expresses the special, distinctive
quality of a people, and a people, like an individual, is to a large extent defined by its past-its
traditions-whether it is conscious of this or not.").
NOTES