In some lawyers' hands, the lexicographer rule can run amok
Bryan A. Garner. (Photo by Winn Fuqua Photography)
Drafters of legal instruments—statutes, regulations, contracts, wills and the like—commonly provide definitions of their key terms. While drafting their documents, lawyers become ad hoc lexicographers. Textualists typically declare that these definitions must be “carefully followed.”
As a professional lexicographer myself, I can attest that writing definitions is an extremely demanding discipline. Dilettantes invariably go awry. Yet we have this doctrine that every lawyer is a lexicographer without the need for other credentials. It’s called the lexicographer rule.
What’s the origin of this rule? It can be dated back to the late Roman Republic (146 B.C.E. to 31 B.C.E.), when Roman jurists began to employ a technique known as grammatical interpretation. This early textualist method was concerned with a search for the meaning of the words, particularly the sense in which the drafter used them. Cicero, an adherent of this school of thought, claimed that a reader should consider the drafter’s understanding of an expression—not just common usage—to arrive at the drafter’s meaning. So if a drafter explicitly defines an expression, an interpreter should heed the definition.
In American law, the idea appeared as early as 1811, when the Virginia high court declared: “When, in the context of a will, the testator has explained his own meaning in the use of certain words, the court should take that as their guide, without resorting to lexicographers to determine what those words ought to signify in the abstract.” (Carnagy v. Woodcock.) In other words, don’t look at dictionaries if the drafter has stipulated a clear meaning.
In 1857, a New York court explicitly declared that a will drafter could become “his own lexicographer.” (Bolton v. De Peyster.) Since the mid-19th century, the doctrine has been extended to contracts, regulations and statutes generally.
As a fundamental tenet, the doctrine has become firmly enshrined in intellectual property law, especially patents. At the beginning of the 20th century, the Chicago-based 7th U.S. Court of Appeals decided a case in which a patent drafter defined “throttling-valve.” The court cited the lexicographer rule and stated: “Regardless of the ordinary or the technical meaning of the words ‘throttling-valve,’ we will unhesitatingly accept another definition if ascertainable from the patent.” (Advance Rumley Co. v. John Lauson Mfg. Co., 1921).
The rationale for the rule was explained in 1967 by the U.S. Court of Claims: “Often the invention is novel, and words do not exist to describe it. The dictionary does not always keep abreast of the inventor. It cannot. Things are not made for the sake of words, but words for things. To overcome this lag, patent law allows the inventor to be his own lexicographer.” (Autogiro Co. of America v. United States.) The innovativeness of patents helps explain why neologisms might be needed and new meanings might be needed for established expressions.
Yet the courts are wary of how this lexicographer rule might be strategically used to smuggle unexpected meanings into what could otherwise appear to be anodyne provisions. Judicial opinions will often contain cautions. As a matter of notice, the meaning must be clearly expressed in the written description. The definitions must be phrased with reasonable clarity, deliberateness and precision.
Counterintuitive definitions, though frequently discouraged in the literature on legal drafting, are said to be accepted by the courts. The most extreme expression of this idea is that a patent applicant, “acting as a lexicographer, may define ‘black’ as ‘white.’” (Merck & Co. v. Teva Pharmaceuticals USA, Inc., Fed. Cir. 2005.) Among the most notorious instances of this distortion is the perhaps apocryphal regulatory definition of milk to include all citrus fruits.
Not all the dangers inherent in departing wildly from ordinary meaning are self-evident. One of them is that the drafter will lapse into using the word in its usual sense and not in its newly defined sense, thereby making nonsense of the stipulated meaning. Another is that a definition might not be fully considered in all the contexts in which it is used in a given legal document, so its inadequacies don’t become apparent until a dispute arises.
These are only some of the reasons why legal drafters are urged to be abstemious lexicographers. Lawyers are not, as a whole, skillful at defining. They violate the lexicographer’s principle of substitutability—the requirement that a definition as supplied should slot into the place in a sentence where the term that they’ve defined appears. Drafters who violate this principle necessarily run afoul of clarity.
Also, lawyers often use the definiendum (the word being defined) within the definiens (the definition itself). When that happens, what could the definition possibly mean? It becomes something like an endless hall of mirrored reflections.
And then, of course, definitions can be used not to clarify but to obscure. This happens when the drafter wrenches the crucial words from a given provision by placing them in a separate definitional section that is often wildly separated from the operative context—perhaps by 50 or 100 pages. I’ve sometimes heard legal drafters say that they purposely hide meanings this way, with intricately nested definitions. They claim that they’ve become among the few people who can truly understand their documents.
I’m not making this up, believe me. The most fundamental problem with this obscurantist approach is that if the parties can’t understand what the crucial provision means, they’re more likely to seek out litigators, who can make lots of noise on every side of the question. And once the issue ends up in litigation, then who knows what a judge or law clerk might think it means? The practice encourages lawsuits and ruins predictability. Only the drafter understands the “true” meaning.
Yet another point: The lexicographer rule encourages legal drafters to forget that the ordinary-meaning rule—the principle that words are to be understood in their everyday meanings—is their ally, not their enemy. A few come to believe that even the most basic terms, such as conjunctions, must be defined. This definition, for example, appeared in a 2019 contract:
The term “and/or” means that the precedent and subsequent words grammatically appertaining thereunto are connected thereby in the conjunctive sense (whether cumulatively as the whole thereof, or, if more than two, in any combination of more than one thereof) and also as an equal alternative, in the disjunctive sense; and the word “and” (except where specifically restricted to the conjunctive or combinatory sense, as for example by the use of the phrase “and (but not or)”) ordinarily means that the conjunctive sense should be applied thereunto unless by reason of the context, subject matter, or circumstances then and there concerned, substitution of the disjunctive sense would be reasonably necessary to give meaning to the words used therewith; and the word “or” (except where specifically restricted to the disjunctive sense, as for example by the use of the phrase “or (but not and)”) means the converse (both ordinarily and substitutionally) of the word “and.”
A client paid for this verbiage. Imagine what might happen when this drafter tries defining articles, prepositions and “be” verbs.
In the wrong hands, the lexicographer rule can easily run amok.
This story was originally published in the June-July 2024 issue of the ABA Journal under the headline: “Milk Includes Lemons? In some lawyers’ hands, the lexicographer rule can run amok.”
Bryan A. Garner is the president of LawProse Inc., the chief editor of Black's Law Dictionary, the author of The Winning Brief and Legal Writing in Plain English, and distinguished research professor of law at Southern Methodist University Dedman School of Law.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
