A Rose by Any Other Name

This blog has on my mind for several weeks.   To start at the end, I spent last weekend in Portland, Oregon, the City of Roses, which this time of year brimming with gorgeous roses.   During a visit to the International Rose Test Garden I was reminded that earlier this summer while I was struggling to write a section about the definition of a word in a constitutional provision, Shakespeare’s often-quoted lines, “What’s in a name?  That which we call a rose by any other name would smell as sweet,” kept creeping into my mind.  Then last week, right before I took off for Portland, this article showed up in an SSRN Legal Scholarship Network journal:  Jeanne F. Price, Wagging Not Barking: Statutory Definitions, 60 Cleveland St. L. Rev. 999 (2013).  This circle (chain? meandering path?) of events left me wandering around the rose garden on a summer Sunday afternoon thinking I should write about… legal definitions.   (I know you were hoping I was going to say roses, but believe me, I have a black thumb and no business writing about anything botanical other than to admire its beauty.)

Price’s title comes from Lawrence M. Solon’s book, The Language of Statutes (Univ. of Chicago Press 2010) in which he discusses “the dogs that do not bark– the aspects of lawmaking that appear to present very little problem and that, therefore, make it possible for us to govern ourselves more or less successfully in a complex legal system based on finely articulated rules.”   For both Price and Solon, statutory definitions fall into that category.   Price says, “Although statutory definitions may not bark — they do not bring attention to themselves — they often act as the tail that wags the dog.   They are important thresholds to our understanding of and the success of legislation.”   Her article suggests a closer look at they types and effects of statutory definitions with the goal of creating more useful definitions.   Because I agree with her about the importance of definitions, my goal here is to enable researchers to most effectively find definitions.

In keeping with the new animal-related metaphor:  in my Animal Law course, on the first day, I ask the students what an animal is.   Everybody knows what an animal is, but it’s not so easy to define and the question usually generates a good discussion.   I then ask them if a kitten is a domestic animal to which they all answer yes, of course — then we read McKinney v. Robbins, in which the court determined that for the purposes of the statute at issue, a kitten is not a domestic animal.   Now I have their attention and we go back to the question of defining “animal” and look at the statutes in the Montana Code Annotated where animal, pet, livestock, wildlife, etc. are defined.   And by the time we’re done, when I re-ask the question, what is an animal, they know the answer is, “it depends.”   Definitions matter.   Price’s article has many good examples from the U.S. code of this principle.

So where are these potentially game-changing definitions?   If we’re lucky researchers, they are in the statute, but I am going to deviate from Solon’s and Price’s focus on statutes and talk about all manner of legal definitions.   But I’ll start where they start — often they are in the statute.   For example, section 4 of Montana’s animal fighting statute defines animal: “For purposes of this section, “animal” means any cock, bird, dog, or mammal except a human.”

Sometimes, however, you have to look a little farther and use the structure of the code to find relevant definitions.   The U.S. Code and many (I have not examined all) state codes often have a definition section at the beginning of a chapter or section.   Montana Code Annotated section 81-30-103 uses the term “animal” 4 times and the term “animal facility” 12 times but defines neither term.   The definitions to both terms are in Montana Code Annotated section 81-30-102, the definitions section for the entire chapter.   In that section you find that:

“As used in this chapter, the following definitions apply:
(1)’Animal’ means any warmblooded or coldblooded animal lawfully confined for food, fur, or fiber production, agriculture and its related activities, research, testing, or education. The term includes but is not limited to dogs, cats, poultry, fish, and invertebrates.
(2) ‘Animal facility’ includes a vehicle, building, structure, research facility, or premises where an animal is lawfully kept, handled, housed, exhibited, bred, or offered for sale.”

Individual statutes rarely stand alone.   They are part of a scheme that put together makes up the full law.   Just like you may have to turn to a subsequent statute to find exceptions, you also may have to turn to a previous statute to find definitions and other generalities — usually they are at the beginning of a part or chapter since they apply to the entire scheme.

Sometimes you are approaching this research from another direction though.   You have a term and you need to know how the legislature has defined it no matter where in the code it is defined — in other words, you don’t have a specific statute to start with.   The tempting thing to do is search the entire code using your term as a search term.   That might work, assuming your term is going to appear in the code in only a relatively few discrete places.   Just to be contrary, let’s pretend you want a statutory definition of the word “child.”   Using “child” as a search term will yield every single statute containing the word road (“child” appears 993 times in the Montana Code Annotated), including those that don’t define it at all.   To narrow your search to only statutes that define the term, use the words & phrases index in print, or the words & phrases field on a WestlawNext advance search.   In the Montana Code Annotated, the words & phrases index immediately follows the alphabetical index in the index volumes; in the United States Code Annotated, the words & phrases index is incorporated into the alphabetical index — look up the term “words” to locate it.   When you use the words & phrases index to the Montana Code Annotated you quickly discover that “child” is defined only 13 times in the Montana Code Annotated.

Sometimes statutes leave terms undefined.  Ordinary meaning may suffice and definitions are limiting; once a term is statutorily defined, other definitions are excluded,  at least for the purposes of that statute.  Other terms are not defined by statute because there is no statute.   In either case, it is up to common law to fill in the definitions and researchers must look to case law.   The same problems with a general keyword search noted above apply again here, magnified if the term happens to be a relatively common term that could be used in daily speech or writing.    Where there is a statute but the term is undefined, the best place to start is with the notes of decisions to the statute in an annotated code.

The words & phrases indexes noted above have a case law counterpart in print digests and also in the advanced search template on WestlawNext.   For those who want to search farther afield for a definition than the scope of a regional digest, or even the Federal Practice Digest, West publishes a stand-alone Words & Phrases set that lists cases from state and federal courts.   Words & Phrases provides persuasive case law when a particular jurisdiction has not yet defined a term and reveals how definitions may compare or contrast across jurisdictions.

Finally, sometimes the best source for a definition is a dictionary.   For legal terms, Black’s Law Dictionary is a standard resource.   Along with definitions, it provides examples of how terms are used, references to primary and secondary case law, and key numbers for further research.   Findlaw has an online legal dictionary and the Legal Information Institute has Wex, an online dictionary and encyclopedia.   Of course not all words have precise legal definitions; often the ordinary meaning of the word is sufficient.   Solan notes (p. 53) that the ordinary usage of a word may differ from the dictionary definition, but a good old-fashioned English dictionary is many times the exact resource you need to define an important term.  In law, sometimes you have to call the rose by its proper name, no matter how good it smells.

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