Defining Words

Cite this Article
Elizabeth Nowicki, Defining Words, Truth on the Market (May 22, 2006),

Words and their meanings can be tricky as an absolute matter; moreso when used as tools in the law.  I have vague recollections of the interesting cases from first year contracts class where the contracting parties had gotten themselves all tied up by attributing differing meanings to the same words.  Good times, good times.  And the issue of defining words (how to, when to, how much to) has twice come up on this blog over the past few days, such that I thought a post directly related to defining words was warranted:

Yesterday, Bill raised the issue of using the term “stockholdersâ€? instead of “shareholdersâ€? and vice versa.  His post met some interesting comments (read here).  A couple of days before that, I had posted about defining “good faithâ€? and “not in good faith.â€?  See “Nowicki on Good Faithâ€? here and, in its first iteration, here.  In Bill’s post, he was ruminating about how careful he needed to be (or did not need to be) when using the words “stockholderâ€? and “shareholderâ€? in his academic writing.  In my post, I was ranting about the bastardization of the phrase “not in good faith.â€?Â

In both threads, the issue was indirectly raised – how technical or meticulous should we be with our word usage?  (Note that I am shrewdly not defining “we� in order to leave the potential scope of the conversation broad.)  I am not sure that I have a “position� on the issue as a general matter, but, off the top of my head, I favor (a) using words that the reader can understand without whipping out a dictionary, (b) erring on the side of clarity, and (c) resorting to the dictionary with Justice Scalia-esque frequency when interpreting a word whose meaning is not contextually clear.

Four additional definition-related thoughts:

1.  Peter Tiersma penned an article in the September 2005 Journal of Legal Education titled “The New Black’sâ€? (discussing 2004 Black’s Law Dictionary revisions).  I recommend this article – it was both interesting and edifying, and Tiersma gets bonus points for using the phrase “meet and properâ€? before he closed page two of his article.

2.  Not to be a one-trick pony, but the director liability world would be a lot more user-friendly if we would all agree on one general, affirmative definition of “good faith.â€?  Backing into the definition by way of looking for the absence of “bad faithâ€? does not advance the discussion, in my view.  Bad faith leads us to use phrases such as “intentionally subversive conductâ€? – I am not sure I can differentiate intentionally subversive conduct from conduct that is subversive but not intentionally subversive.

3.  Did you know that the tobacco industry used the word “zephyrâ€? in internal memos as the code word for “cancerâ€? in order to obscure the serious health impacts of smoking?  See Lisa Bero, Implications of the Tobacco Industry Documents For Public Health and Policy, Annual Review of Public Health Vol. 24: 267-288 (Jan. 2003).  My grandfather died of lung cancer – I wonder if he would have been astute enough to define “zephyr” the same way the tobacco companies did, had he been lucky enough to see the internal memos before he took up his deadly habit.

4.  Bonus points if you can work the word “elide� into a sentence tomorrow!  (See here and here)