I’m posting this because I’ve discovered a mistake in my previous post, #GorsuchDictionaries: Into the lexicographic weeds. I’ve added a correction to the post, but since a lot of people have already seen the original version (well, a lot by our standards), I wanted to take the extra step of putting up this separate post, noting the correction.
Set out below is the relevant part of the original post, as corrected.
THUS, THE TWO DEFINITIONS cited by the dissent preceded the enactment of the supplemental-jurisdiction statute in 1990 by, respectively 78 years and 56 years. That fact alone has to make one wonder whether they accurately reflected how toll was used by the time 1990 came along.
And there are additional reasons for doubting the continuing adequacy of the dictionaries Gorsuch cites. First, the use of toll with regard to statutes of limitations earlier than 1934 may have been infrequent. It appears (from a Westlaw search) that before 1934, toll, tolls, toll, or tolling was used within 35 words of limitations in only eleven cases, of which only two were from before 1912. (There were five such cases in 1934 and one in 1912, but I assume that by those dates the definitions had already been finalized.) In contrast, when the same search is conducted for the period 1980 through 1989, it returns 642 cases
[Update: The previous paragraph turns out to be incorrect—the low number of hits that I was getting was due to the way I was doing the date-range filtering. When I fixed that problem, the search results didn’t give me reason to think there was a major change in the way toll was used after W2 was published. However, they do raise the question whether the W2 definition accurately reflected the range of early/mid-20th century usage. I’ll explain the basis for that statement in my second post about Artis, which I’m currently working on. ¶ My apologies for the mistake.]