The rule of wickednessan article on statutory interpretation that I published several years ago begins like this:
A Tennessee statute imposed duties on railroad engineers. If a railroad engineer found an animal or obstacle on the tracks, the statute required that he “sound the alarm whistle, apply the brakes, and employ every possible means to stop the train and prevent an accident.” But what counted as an “animal” on the tracks? Cows and horses, yes. But what else? Did all trains in Tennessee have to stop for squirrels?
The train stop case poses difficult questions for some interpretive theories, particularly textualism. The text does not identify a fixed point in what counts as an animal. Nor is there a dictionary definition that includes cows but excludes squirrels. Does a textual interpreter have a duty to say that trains really have to stop for squirrels?
Please note that there is no dictionary definition for animal this will mean “animal of considerable size” or “animal of the type you would have to stop a train for”. If you are willing to look at the context, including the evil, but only if you can find some ambiguity first, then you will be absolutely baffled by the statute of stopping the train. The solution, or so I say The rule of wickednessis that interpreters should consider harm as an aspect of context not only after concluding that a law is ambiguous, but also when deciding whether it is ambiguous in the first place.
I thought about these points when I came across this passage in an essay by jazz critic Ted Gioia. He notes that Sony recently invested “in Michael Jackson’s song catalog at a valuation of $1.2 billion.” He then added: “no label would invest even a fraction of that amount in launching new artists”.
Now anyone who reads that sentence knows exactly what Joy means. He does not fail to convey her message. You are neither an inept user of the English language. She’s not making a mistake.
What does Gioia mean by “a fraction”? No music label, he says, “would invest even a fraction of that sum in launching new artists.” But that, of course, is exactly what a music label means I wanted do: It wouldn’t invest $1.2 billion in a new artist, but rather a fraction of that.
But what exactly does Gioia mean by “a fraction”? He does not simply mean a part of the whole. If Sony invested $1 billion in a new artist – a fraction to be sure, 5/6 of $1.2 billion to be exact – that would go against Gioia’s point. So by “fraction” he means not just a part, but a small part.
But he doesn’t mean “any part” either. If Sony invested $10,000 in a new artist, would that disprove Gioia’s point? At all. But $10,000 is literally a fraction of $1.2 billion.
So what does Joy mean? By “a fraction” (1) he means a part of the whole (2) which is small and (3) yet non-trivial. It’s a small part of the whole that is actually something, not so small that you could say – and any reader would understand – “that’s not even a fraction of what I wanted!” In other words, “a fraction” is used as a limited concept on both ends, a part that is neither a hair smaller than the whole, but not just a hair either. A fraction, a real fraction.
Yet, even if (most) readers of Gioia’s sentence will immediately understand what he means, the sense in which he uses the word is not identified in the dictionaries. At least not in the three I checked just now, including the Oxford English Dictionary. Dictionaries sometimes capture the first and second aspects of Gioia’s usage, but not the third.
So, to draw the moral for legal interpreters: the semantic domain of a word is not coextensive with the dictionary senses, and a word can be used in context in a way that makes sense to every reader and yet does not correspond to any sense identifiable in the dictionary. Every good reader knows that a snail is not an animal under Tennessee statute, and every good reader knows that $10,000 is not even a fraction of $1.2 billion. Legal interpreters must be more than good readers, but no less.