The University of Chicago Law School Faculty Blog

Ambiguity: Response to Professor Eskridge

Other studies find that judges' votes are correlated with political views.  Indeed, even in the same case judges from across the aisle vote in different ways.  Those are observational studies, so suffer from issues with internal validity.  Our study has greater internal validity because it is randomized, but suffers from external validity.  We study students not judges.  We don't provide as much context or room for reasoning.  Yet our study finds similar results.  When there is evidence of political influence on one side and the other, it takes a great deal of faith to suppose that judges are fully insulated from their own political preferences.  The commentators provide no evidence on which to base that faith.

Our remaining claim is that the ordinary readers framing helps mitigate the effect of preferences.  Unfortunately, there is no observation data on judges corroborating our findings here.  Perhaps the data from Brudney and Ditslear would help.  In any case, our data suggest that the ordinary readers framing could have a potential debiasing effect.  This should be explored in future work.  Ideal would be a randomized study of judges.  

And again, judges are not the only individuals who bear responsibility for interpreting statutes.  Indeed, I would conjecture that only a small fraction of behavior is influenced by how judges read a statute.  Lawyers working for clients and the government must read statutes and tell clients or government employees how they must behave.  Prosecutors must read statutes and decide which individuals to prosecute.  All without judicial guidance.   In some cases these lawyers will use outside information, such as legislative history.  But in many cases they will base their decisions on the text of a statute and a quick judgment.  Our study may be more predictive of what influences lawyers in this context. 

One final point.  Perhaps it would be easier to absorb our findings if the experiment were viewed not as an attempt to see how judges vote but rather as a cognitive psychology experiment.  Social scientists have run numerous experiments on students revealing that they have trouble dealing with low probability events, or cannot understand fractions as well as odds, or are averse to ambiguity, or suffer endowment effects. Numerous legal scholars have cited these studies as suggesting that judges may suffer similar foibles. (And judges have surely wondered whether these behavioral findings apply to litigants before them.)   It can always be objected that the researcher did not study the target population to which scholars want to extrapolate their findings.  But the response is that the studies shed light on psychology and this psychology is not specific to one profession or another.  

From this perspective, perhaps it would have been better if, instead of showing students statutory text, we had simply showed them some other writing, such as a newspaper story, and asked them how they interpret that story.  I predict we would have found that preferences affect how people read the story.  But surely the fact that we actually used statutory text should not make such a cognitive psychology experiment less persuasive.  On the contrary, we show how the problem of separating preferences from judgments can affect a person's reading of the same sorts of texts that judges read.  We  don't claim that judges make their ultimate decisions about cases in the same way our respondents answered their survey questions; but we  think it's plausible that judges struggle with the same basic problem  our respondents did, and with the same lack of success, at the stage  of a case when they are trying to make the same kinds of judgments that our respondents were.

Ambiguity: Comment from Judge Williams

I understand that the judge confronted with decent briefs in a moderately close case doesn't ask the question of how "ordinary readers" would interpret the statute.  My point is simply that I don't see the study as offering evidence on the marginal gain (in reducing judicial non-neutrality) to be had from judges' asking themselves that question."

--Judge Williams

[Anup Malani is posting this comment on behalf of Judge Williams.  Judge William's is in Moscow and does not have reliable access to Typepad.]

Ambuguity: Eskridge Comment on Posner and Response to Malani's Reply to Eskridge

I have not been following the exchange very carefully but have read the authors' replies to Dick Posner and to me. I want to amplify my earlier point, that studies of law student responses to abstract problems about ambiguity have limited (perhaps no) value in understanding how judges, administrators, or even practicing lawyers process issues of plain meaning, ambiguity, and statutory interpretation.

Limitation #1. As Aristotle said (paraphrased for the current debate), statutory meaning is driven by context--including the facts of the case, the policy and legislative background, the surrounding text and the whole act, precedent and other prior interpretations, the constitutional terrain, etc. Simple hypotheticals have limited utility in telling us much about how judges et al. evaluate statutory texts--but perhaps the more telling point is that judges et al. have a lot more experience with legal materials than first-year law students do.

Limitation #2. Judges, administrators, and (usually) lawyers are publicly accountable for their interpretations of statutory text. That the law students answered the questions anonymously (I assume that was the case) or surely with no public accountability makes their task much different from that of the judge who realizes that her interpretation can be criticized by the losing party, lampooned by commentators, or reversed on appeal. Do these features of professional practice suggest that judges will be more disciplined than law students? I'd assume so. (This calls forth my biggest surprise about the study we are discussing: without accountability, I am surprised, and impressed, that the law students were not more influenced by their views of the merits. Good for them.)

Limitation #3. Judges, administrators, and attorneys also usually provide reasons for their decisions. I wonder whether the requirement of reasons might exercise some discipline on respondents, independent of the accountability point.

Ambiguity: Farnsworth reply to Posner reply to Farnsworth reply

 

Judge Posner disputes that judges argue much about the "normal" usage of words; when they argue about words, there is always a "complex background understanding" at work of the motives of the drafter and the function of the interpreter.  And he doesn't see any place for cognitive hazards to enter into the process of interpretation, either. 

 

So let's take as an example a case that I've mentioned in a previous reply:  Smith v. United States.  That's the one where the defendant tried to trade his gun for a bag of cocaine, and the question was whether he had "used" the gun in relation to a drug trafficking offense.  The case was decided 5-4 in favor of the government.  The two sets of Justices seemed much concerned with the exact point that my co-authors and I have been studying:  how to read the language of the statute.  Not how to read it in view of complex background understandings, but how to read it as a piece of English.  The majority opinion, like so many opinions, says that "When a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning."  They went through dictionary definitions and examples of how the word "use" is used.  The analysis then sounded like this:

 

"It is one thing to say that the ordinary meaning of 'uses a firearm' includes using a firearm as a weapon, since that is the intended purpose of a firearm and the example of 'use' that most immediately comes to mind. But it is quite another to conclude that, as a result, the phrase also excludes any other use. Certainly that conclusion does not follow from the phrase 'uses . . . a firearm' itself.  As the dictionary definitions and experience make clear, one can use a firearm in a number of ways. That one example of 'use' is the first to come to mind when the phrase 'uses . . . a firearm' is uttered does not preclude us from recognizing that there are other "uses" that qualify as well. In this case, it is both reasonable and normal to say that petitioner 'used' his MAC-10 in his drug trafficking offense by trading it for cocaine; the dissent does not contend otherwise."

 

And then the dissent argued back about what an ordinary person would think it means to "use a firearm."  These discussions didn't owe much that I can see to the complex background understandings Judge Posner talks about.  (Other parts of the opinions might.)  Our claim is that in arguments like this, there is a risk -- the "cognitive hazard" mentioned before -- that the person makings claims of the kind just shown will be giving effect to policy preferences without realizing it.  The interpreter claims not to be making a policy judgment, and thinks no such judgment is being made, but it is.

 

I'm not sure which part of this seems objectionable to Judge Posner. Maybe he thinks Smith is atypical.  I don't; lots of Supreme Court and appellate opinions—though not, as a rule, opinions from Judge Posner—contain passages like these.  Maybe he thinks these passages are insignificant; it's just stuff that judges are required to say by custom, but that has nothing to do with their actual reasons for decision.  There may be something to that, but we think the materials that judges use (and feel obliged to use) to build their arguments can have some effect on what they actually do decide, so we aren't ready to treat these sorts of debates as though they don't exist.  Maybe he thinks—I'm reasonably sure he must think—that the passage quoted a moment ago, like many passages from Supreme Court opinions, is vacuous nonsense that shouldn't be trusted.  Again, that may be.  Indeed, I'd say our claims and evidence can provide some additional support for that view, so I'm surprised he doesn't welcome them.

Ambiguity: Posner Reply to Farnsworth Reply

It may seem hard to quarrel with Professor Farnsworth's anodyne statement: "Obviously judges know a lot more than our respondents did, as we acknowledged early.  The fact remains that judges often are confronted with a basic cognitive task similar to the one that faced the takers of our surveys:  they have to figure out what a piece of English text is best understood to mean.  Sometimes their impressions from the wording and punctuation are heavily influenced by things they know that our respondents didn't know.  Sometimes they aren't.  In the gun use case, a lot of the arguing was all about what a normal usage of the statute's words would mean; there wasn't very much reliance on knowledge that our respondents lacked.  In other cases the reliance on additional knowledge is greater, but the judges still argue about the simple English meaning of the sentence as one component of their analysis.  That is the component we are studying.  We suspect that the cognitive hazards we describe are common to judges just like anyone else."

But I will quarrel with it, particularly the notion of "cognitive hazards," and that judges do a lot of arguing over the "normal" usage of a statute's words. There is no interpretation of a document without a complex background understanding of the motives, intentions, and so forth of the drafter and also the function of the interpreter, which might be docile, obedient, but might instead be creative, and/or forgiving (I know what he's driving at, but he's expressed it badly--I will interpret according to what I think he intended). I don't know where "cognitive hazards" enter. If judges are literalists (a kind of "screw you" view of legislators: we know what you're driving at, but you said it wrong and we'll rub your noses in it by interpreting the statute to mean what it says rather than what it means), they will produce different interpretations from the loose constructionists, but the difference between the two groups has nothing to do with cognitive hazards. Judges make mistakes when they misapply their own interpretive approach, whatever it is.

I would be interested in Farnsworth's approach to the Raffles case. The contract was clear "on its face." Once the latent ambiguity is identified, interpretation becomes policy-saturated (who should bear the risk of a mistake in a contract). Since law is part of government, judges

Ambiguity—Reply to Judge Posner

We find Judge Posner's comment, like Judge Easterbrook's, agreeable enough.  We think the study of interpretation by non-judges still has value, and don't understand him to disagree.  Obviously judges know a lot more than our respondents did, as we acknowledged early.  The fact remains that judges often are confronted with a basic cognitive task similar to the one that faced the takers of our surveys:  they have to figure out what a piece of English text is best understood to mean.  Sometimes their impressions from the wording and punctuation are heavily influenced by things they know that our respondents didn't know.  Sometimes they aren't.  In the gun use case, a lot of the arguing was all about what a normal usage of the statute's words would mean; there wasn't very much reliance on knowledge that our respondents lacked.  In other cases the reliance on additional knowledge is greater, but the judges still argue about the simple English meaning of the sentence as one component of their analysis.  That is the component we are studying.  We suspect that the cognitive hazards we describe are common to judges just like anyone else. 

 

As for the general differences between the positions of our respondents and the positions of judges, in some respects doing experiments is like creating economic models.  Either way you have to simplify; either way you abstract certain features of the situation for rigorous study, and end up with a stylized result.  The experiment (or model) isn't the same as reality, but it may capture something important about the reality that is harder to see when all the complexity is left in the picture.  

 

In this case, the experiments suggest a cognitive issue in interpretation and a way to help overcome it.  In real judging, the issue and the corrective may both be less important than they were in our experiments, because (as we have said, and as others have said) judges operate in different and richer circumstances than our respondents.  But we think it is a mistake to too quickly assume judges are able to avoid the hazards that our experiments illustrate, whether because of their training or because they have contextual details to consider that our respondent lacked.  After all, those other materials that judges consider contain ambiguities of their own.  As I mentioned in reply to Professor Elhauge, perhaps—we might even say probably—those other things (ambiguous legislative history, ambiguous statutory context, etc.) may themselves be subject to interpretation, and perhaps those interpretations are subject to the same tendencies we have identified here.  We hypothesize that policy preferences color the handling of ambiguous legal materials of all kinds, and that our studies just show a simple example of it.  The argument to the contrary would be a lot stronger if judges, as a group, were famous for deciding hard statutory cases in ways that are hard to predict on the basis of their policy preferences.  They aren't.

Ambiguity—Reply to Einer Elhauge (round 3)

Once a statute is ambiguous, how should a judge or anyone else decide how to interpret it?  Is it possible that they should consult their policy preferences?  This is the latest interesting question that Professor Elhauge raises.  A few replies to his analysis—

 

—As he notes, we are careful not to argue that policy preferences have no place in interpretation.  That is a long-standing debate, and we mean to offer results and analysis that have value to readers on either side of it.  Some people believe that judges should indeed give effect to their own preferences; but we think that even they would want to keep straight the difference between their preferences and their judgments about the text, even if they plan to give weight to their preferences in the end.  Our studies suggest that this is hard to do.  People try to put their preferences to one side, but the preferences infect the decision about meaning anyway.  In this sense it is possible to speak of "bias"—of unwanted influence—even if the respondents want to give effect to their policy preferences in the end.  They aren't trying to give effect to the preferences at that stage; so at that stage, the preferences are best considered a source of bias.

 

—Professor Elhauge speaks as though, once a statute is found ambiguous, there is nothing more the text can offer; it is time to resort to other methods of decision, like flipping a coin, estimating the preferences of others, or falling back on a default rule (such as finding for defendants, period).  We don't think our respondents were doing any of those things.  Once a statute is conceded to be ambiguous, it's still possible to have an opinion about how its text is best read.  Possible not only in principle but in practice:  the famous cases we use often produce opinions where a judge who says a statute is ambiguous goes on to argue vigorously that one reading is better than the other—not because it squares best with other evidence of legislative intent, but because it's just a preferable reading of the English.  We think this is what our respondents were doing, too.  And it might not be a bad idea normatively.  There are reasonable arguments that the ordinary meaning of a statute should be given much weight on "rule of law" grounds:  the rules that tell people what to do, and subject them to punishment if they disobey, should mean what they seem to mean. 

 

—Asking what ordinary readers would think the statute means is one way of carrying out the interpretive job just described:  "Well, I can see that the gun use statute is ambiguous; but an ordinary reader would certainly not read it as applying to trading a gun, so that's going to be my interpretation, too."  This is a coherent way to proceed, and it has the advantage of avoiding bias in the sense explained earlier—that is, of producing a judgment more likely to be distinct from the policy preferences of the person making it.  Of course it's possible to still think that the final decision should be based more on some other consideration—a statutory default rule, or whatever else.  We are concerned with the competent execution of one stage in the process of deciding a statutory problem.  Whether that stage is the last stage, or less important than others, is a question we leave for other occasions.

 

—Professor Elhauge mentions a possible inference from our forthcoming paper that, when deciding what ordinary readers would think, respondents tend to vote for defendants.  But this isn't really clear.  The pattern does appear in a few criminal cases we tested, but this might just be because the defendants in those cases happened to be taking the simpler and more intuitive view of what the statutes meant.  I consider this an open question.  And when asked what ordinary readers would say, there was movement toward the government's view by many who preferred the defendant's position as a matter of policy.  This is not consistent with the idea that respondents simply put on defendant-colored glasses when asked what ordinary readers would think.  But it is consistent with the idea that the "ordinary readers" question had a debiasing effect on them.

 

—Professor Elhauge suggests that the result might have been different if the respondents had been given more evidence of the legislature's preferences.  No doubt that is true.  I repeat that we are trying to shed light on a stage of interpretation:  the simple judgment of English meaning.  If distortions at that stage are later diluted by the addition of other information (evidence of legislative intent), fine.  But again, judges who have all that evidence still often decide the meaning of statutes in ideologically predictable ways that suggest the effects we describe aren't much diluted.  Maybe the same tendencies we find here also infect the judicial interpretation of all those rich sources of evidence that they had and that our survey-takers didn't.

 

Ambiguity--Posner's Comment

I think Frank has said it all. Whether an "ordinary" English speaker would consider a statutory or constitutional provision ambiguous is irrelevant to whether a judge or other lawyer would consider it ambiguous. The more one knows about a subject, the more--or less--ambiguous a document relating to it might appear. An ordinary English reader might think "freedom of speech" in the First Amendment unambiguous; a lawyer knows better.

Phrases and especially sentences are meaningful only in context, and different types of reader have access to different elements of context. Contract lawyers distinguish helpfully between intrinsic and extrinsic ambiguity, where the former can be spotted with the aid of a very limited knowledge of context, while the latter is discovered only with a broader inquiry. So in the Raffles case, the contract to deliver cotton on the ship Peerless was unambiguous until one learned that there were two ships of the same name sailing between the same ports at roughly the same time (though the difference in date of arrival was what made the ambiguity costly). That is the classic example of extrinsic ambiguity.

In Chapman the major ambiguity stemmed from the weight of the cardboard relative to that of the LSD and the arbitrary consequence (or so it seemed to me) that if the cardboard was treated as part of the mixture or substance containing the LSD the sentence would be much heavier.

When judges say that the "literal" meaning of a statute should be followed unless the result is "absurd," they mean (or should I think be understood to mean) that the statute isn't clear once the context is understood.

And another way to put all this is that a statute is a communication and that in decoding a communication we draw on everything we know about the communicator and the subject matter of the communication in deciding what it means.

THE MOST IMPORTANT AMBIGUITY IN “AMBIGUITY ABOUT AMBIGUITY” By Einer Elhauge

Ok, so I think with Professor Farnsworth’s two responses, we can move past the first two ambiguities.  I do think it would be better in the follow up work to eliminate the concern by varying only the external/internal angle and making the rest of the phrasing identical.  So, given that the internal question asked, “Do you think the statute, as applied to these facts, is ambiguous?”, the external question should ask, “Would ordinary readers think the statute, as applied to these facts, is ambiguous?”  Until that is done, we cannot eliminate the possibility that other differences in phrasing caused the results rather than the external/internal difference, but I agree with Professor Farnsworth that the new study comes pretty close, so this contrary possibility is probably unlikely.

Now we come to my last – and most important – ambiguity about the paper: it’s ambiguous normative implications.  The paper is careful to avoid drawing any explicit normative conclusions, but it does describe the effect of interpreter policy preferences as a “bias”, suggesting some disapproval of it.  Whether or not that was intended, the question arises: would such disapproval be merited?  Should we encourage judges to frame ambiguity questions using an external rather than internal perspective?

If the statute had a clear meaning or we could reliably estimate enactable legislative preferences on the issue, then I think (as I lay out in my book, Statutory Default Rules), that it would be normatively undesirable for judges to use judicial policy preferences rather than statutory meaning or enactable legislative preferences.  I think such a case is usually assumed when one presumes that it is bad for judges to use their own policy preferences.

But here we do not have such a case.  Interpreters who used the external perspective found the statutory meaning unclear, and it is hard to deny the statutes were unclear given that the relevant cases made it to the Supreme Court (which focuses on cases where the law is unclear) and are classics in legislation casebooks (which focus on cases that lend themselves to evenhanded debate).  Nor were any of the interpreters given any evidence about legislative preferences.

So the question arises: if interpreters using the external perspective were not deciding case outcomes based on statutory meaning or legislative preferences or their own policy preferences, what was the basis for their decisions?  Several possibilities arise.

One is that they just decided case outcomes randomly.  But it isn’t clear why we should think that is better than having judges employ judicial policy preferences.  After all, judges are appointed through a political process, so one might think that judicial policy preferences are more likely to reflect societal policy preferences than random choice would be. 

Another is that, consistent with the fact that their own ambiguity judgments reflect their own policy preferences, their prediction about the ambiguity judgments of ordinary readers will reflect their best guess about the policy preferences of most ordinary readers, which then becomes the baseline they apply in deciding case outcomes.  Perhaps such guesses about majoritarian preferences would be better than using judicial preferences, though such guesses might also deviate from actual enactable preferences, which are not the same as simple majoritarian preferences given cloture, bicameralism, Presidential vetoes, and the fact that Senators are not allocated in proportion to population.  (Maybe it would be better to ask what ordinary legislators would think.)  If the external framing did lead interpreters to use their best guess of majoritarian preferences, then I would think that would bias them in favor of the government.  (If political campaigns reflect what politicians think most voters want, it suggests they don’t think voters favor criminal defendants.)  But a sneak peak at the second paper indicates that interpreters using the external perspective instead tend to rule for the criminal defendant.

A final possibility is that interpreters who are not deciding based on statutory meaning, enactable preferences, or their own preferences are using a default rule that favors criminal defendants, probably not because they know the rule of lenity yet, but because they have gotten the general sense from television crime dramas that ties go to the criminal defendant.  This seems consistent with the data in the second paper.  It also happens to be the right result from my perspective because (as my book argues), I think that judges who cannot reliably ascertain statutory meaning or estimate enactable legislative preferences should use the default rule most likely to elicit legislative preferences, which here is the rule of lenity because prosecutors have a much easier time getting legislative clarifications ex ante or overrides ex post, especially given that prospective criminal defendants may not know who they are or be reluctant to identify themselves.  But it isn’t clear to me what would happen in non-criminal areas where television is less likely to lead to implicit default rules.

Finally, it bears emphasis that the relevant questions did not give the interpreters any evidence on legislative preferences or likely effects, nor any background on statutory default rules like the rule of lenity.  It is possible that such evidence and background would change the results.  Interpreters seem more likely to apply their own policy preferences when they know nothing of the legislature’s preferences or about statutory default rules.  Further, if we tested a case where interpreters did know about legislative preferences, we might find that the external perspective would cause interpreters to use their guesses about majoritarian voter preferences rather than rely on legislative preferences, which would seem less desirable. 

So we have some things for yet another follow up paper to explore, which just confirms the value of this generative paper.

Ambiguity in Legal Interpretation: Reply to William Eskridge

Some of Professor Farnsworth's recent reply to Professor Elhauge also speaks to points raised by Professor Eskridge.  In the most recent study we did -- not of whether people find statutes ambiguous, but what of they think the ambiguous statutes mean -- we asked "which reading better fits the ordinary meaning of the statutes text," and variations on this.  We don't think this is a hard question to understand.  And the results we have obtained with these wordings are similar to the results we obtained with the wordings that have been criticized as potentially harder to understand or potentially ambiguous.

As for the use of criminal statutes:  We did these experiments with students in their first week of law school and with students at the end of their first year.  The latter group might be aware of the rule of lenity that Professor Eskridge mentions, but the first group would not be.  But there was no significant difference between the responses from those two groups.  This also suggests that law school doesn't do much to erase the cognitive tendencies we think best explain the results.  We also used a couple of questions based on civil rather than criminal statutes, with the same results shown here. 

Now maybe more years of living and practicing law do have that effect, as Professor Eskridge suggests.  Or maybe they don't.  We can't prove anything about judicial behavior by studying what non-judges do; and we don't claim to have done so.  But we think our results are suggestive, and might help explain a discrepancy familiar to all students of judicial decisionmaking.  On the one hand, there have been studies of judicial behavior from a distance that suggest judges probably give effect to their policy preferences when they interpret ambiguous statutes; and Professor Eskridge thinks this, too.  Yet when you talk to judges you often find that they don't experience themselves as doing any such thing, and some of them get mad when an academic suggests otherwise. 

Our experiments suggest -- in a stylized but plausible way, with a non-judicial population -- some mechanisms by which this discrepancy can be produced.  Respondents in our new study were told not to let their policy preferences infect their judgments about meaning.  It happened anyway.  The subjective experience of separating one's judgment about meaning from one's preferences is not a reliable indicator that the separation is actually happening.  We doubt (and the empirical studies of judicial behavior do not suggest) that this changes all that much when a lawyer gets older and becomes a judge.  It would be like imagining that judges are better than the rest of us at avoiding the endowment effect, or self-serving bias, or other stubborn sources of cognitive trouble.  Maybe they are, but we doubt it. 
 
Professor Eskridge questions whether our “external” question would be as helpful to judges as it is to our respondents.  But he describes the external question as just a way of wording the inquiry, which makes it natural to suggest (as he does) that judges are too “savvy” to be affected by this.  But it isn’t just a matter of wording; the external question really is a different inquiry than simply asking people how clear the statute seems to them.  Sometimes judicial arguments about ambiguity are arguments partly about whether the external question (as we style it) is the right question ¬ as in the Smith case Anup mentioned (the one where the defendant was charged with “using” a gun because he tried to trade the gun for a bag of cocaine). 
 
Another thing to remember is that judges aren’t the only ones who interpret statutes.

Professor Eskridge cites a fascinating article by Brudney & Ditslear (89 Judicature 220 (2005-2006)) that examines the relationship between use of legislative history and the ideological tilt of opinions in the Supreme Court.  That article does not, however, demonstrate that use of legislative history mitigates the effect of policy preferences on judgments.  What it reports is that legislative history is used at roughly the same rate in opinions with liberal outcomes and opinions with conservative outcomes.  That result is also consistent with the prediction that liberals can use legislative history to reach liberal outcomes and conservatives can use it to reach conservative outcomes.  Fortunately the data set that Brudney and Ditslear have gathered may be able to test Professor Eskridge's claim.  We recommend a regression of whether an opinion is liberal on the interaction between use of legislative history and whether the author is a liberal.  If the interaction has the opposite as the main effect on the author being liberal, it means it mitigates the effect of policy preference on judgments.

Finally, in comparing different methodologies, both Professors Eskridge and Elhauge note that our findings suggest that textualism appears not to mitigate the effect of policy preferences.  This is correct.  But to provide a complete picture, it should be admitted that our data do not suggest that textualism is any worse than purposivisim or intentionalism, which are captured by the our drafters' intent question in the second set of surveys.  Both the textual cue and the drafters' intent cue allow policy preferences to affect judgments at similar rates.