Art Leff’s Dictionary of Law: A Very Belated Review

Mark Tushnet

Arthur Leff taught contracts and related subjects at Yale Law School from 1968 until his death at age 46 in 1981. During the last years of his life he worked on a dictionary of law. The completed entries for letters A, B, and C (the first seemingly near complete, the third clearly still in progress) were published in the Yale Law Journal in 1985. After saying a bit about Leff as a teacher-scholar, I’ll speculate about the seemingly odd enterprise of a major scholar turning to writing a legal dictionary in an era when even writing treatises had fallen out of favor at the highest levels of the legal academy.

Leff’s obituary in the New York Times rightly said that he was “among the Law School’s most popular professors.” I may be misremembering but I think he smoked while he was teaching, and he certainly paced across the “stage” with (again as I recall) something of a tic (perhaps because he couldn’t smoke?). Someone described him as, in class, examining some current legal doctrine in enormous detail, holding it up for examination as if it were the rotting corpse of a dead rat. As that might suggest, Leff was fundamentally a legal realist, skeptical about the ability of law as administered by ordinary mortals to accomplish what its defenders asserted it could. He was also an accomplished self-trained “law and economics” person who could play the Chicago-school game with the best of the then-current crop.

Among his important works were a major article on the unconscionability doctrine, at the time touted as rule embedded in ordinary contract law that could be turned to use as a device to protect consumers (and redistribute wealth) [Leff didn’t think it could], and review essays of works by Richard Posner and Roberto Unger. (I read the latter as rather sympathetic to Unger’s project but skeptical about Unger’s purported solutions – though in my view Unger didn’t really attempt to offer solutions.)

Why would someone like Leff try to write a legal dictionary? In a letter to a publisher quoted in the prefatory materials to the Law Journal’s publication, Leff said that at the rate he was going he would be done by 2075. The task was obviously impossible on the terms he set. So, what was going on?

It’s important to emphasize that the dictionary isn’t modeled on Ambrose Bierce. There are occasional turns of phrase that catch one’s attention. The final entry, on “Chiltern hundreds,” is too long to reproduce here, but it concludes – in the dictionary’s last words, “Ah, the English….” Almost all the entries, though, are sober descriptions of legal terms, some familiar, most not. There are scattered mini-essays running to perhaps a half-page where Leff expands upon the doctrine associated with a term, writing in a reasonably colloquial style. But one wouldn’t read the dictionary for chuckles.

A dictionary of law has to have some principles of inclusion and exclusion narrower than those used, for example, in compiling the Oxford English Dictionary. And the principles one can infer from the product itself might reveal something about the jurisprudence underlying the effort.

There are some pretty clear idiosyncratic inclusions. Perhaps derived from his interest in scams and swindles (many terms associated with them are included), Leff included a non-trivial number of terms drawn from psychology (“altruism”). And there are more than a few that are time-limited (“Brezhnev doctrine” and quite a few entries for then-important U.S. Supreme Court decisions). The time-limited entries also hint at the underlying jurisprudence. “BASIC: In computer programming, a popular and comparatively simple computer language; almost anyone (under forty) can learn to use it quite easily.”

The jurisprudence, as I discern it, is this: Leff wanted to write something that practicing lawyers could use. (He explained his interest in including terms primarily located in psychology and economics as helpful to lawyers who needed to carry on cocktail party conversations; I’m skeptical that that’s all that it was.) Why, though, would an ordinary practicing lawyer have to know the dozens and dozens of terms used in law French and legal Latin?

I think the answer may be that such a lawyer might occasionally (rarely) run across one of those terms in some old case that had some bearing on the problem she was facing, or in deeds relevant to a property transaction. The implication (for me) is that all law is always available for a lawyer to use; some obscure case from 1635 might turn out to give you just the right concept to use to help your client’s case today. You’d have to update it of course, but the techniques for updating are also available. And that, I think, might well be compatible with legal realism as I understand it.

There’s another component of Leff’s jurisprudence as revealed in the dictionary. He was a proponent of then-prevalent views about how often ambiguity arose in legal documents (a lot, and particularly when the stakes were high enough), and of then-standards for resolving ambiguity. Meaning in these cases came from context and purpose: What were the parties trying to do? What was the legislature trying to do when it used this language? This is the domesticated version that legal realism took when legal academics tried to sand down its rough edges. (I learned that from Duncan Kennedy and Jan Deutsch.)

My sense is that the Dictionary basically sank like a stone and that Leff himself is no longer thought of as a significant figure in either jurisprudence or more narrowly in private law scholarship (I might be wrong about the latter). I’m not adept at this sort of thing, but I did try to search Westlaw and Hein for references to the Dictionary – I found ten citations in state cases, five in federal ones, and about a hundred citations in secondary sources (the modal citation in the latter was to Leff’s entry of “balancing”).

Is there a lesson in all this? Maybe that – except for a tiny handful of “world historical” scholars – a scholar’s reputation, and perhaps influence, depends a great deal on his or her personal charisma and dies down as those who knew the scholar pass from the scene. (One can read Thomas Kuhn to be making a similar point.)

So, what are we doing as legal scholars? I’ve described what I do as “turn out widgets” (in the pre-computer sense of little doodads that play some small part in keeping a machine running) – and I confess that I find that description more satisfying than one (that sometimes flits into my mind) that connotes some grander contribution to the world.