Professor Elhauge is perceptive again in pointing out another ambiguity in our paper about ambiguity. We asked some respondents to our surveys this question:
"Do you think ordinary readers of English would disagree about which side's reading of the statute is better?"
Might some respondents have thought this question was asking them to predict the policy preferences of ordinary readers? We doubt it; we think the first part of the question (referring to "ordinary readers of English") makes clear enough that by "better," we mean better as a matter of English. But in any event, we did administer a set of surveys that instead asked “Do you think ordinary readers would disagree about which reading better fits the statute's text?” This question removed the possible ambiguity. It produced the same results as the question that concerns Professor Elhauge.
Note this as well: In our surveys that focused on what the respondents thought the statutes meant, we cured the ambiguity that concerns Professor Elhauge. This time we compare answers to the follow questions:
1. Setting your policy preference aside, which reading better fits the ordinary meaning of the statute’s text?
2. Setting your policy preference aside, which reading of the statute is a better fit to what the drafters of the statute intended?
3. Setting your policy preference aside, which reading of the statute would ordinary readers of English think is a better fit to the ordinary meaning of the statutes text?
Here again the ambiguity is gone, but the effect turns out to be the same: the answers to the first two questions tracked the respondents' policy preferences much more closely than the answers to the third.
On Professor Elhauge's other points: We don't ask our respondents whether ordinary readers of English would say the statute is ambiguous. We ask whether they think ordinary readers would agree about which reading of it is better -- not quite the same thing. Also, Professor Elhauge suggests that the internal question (is the text ambiguous?) is simply a logical question about whether the text will admit of more than one reading. We aren't so sure. We don't define "ambiguity" for the respondents. They define it for themselves. And it's pretty obvious from our fact patterns that the texts are always ambiguous in that logical sense -- that two different readings are possible in principle; yet many respondents nevertheless say that the statutes aren't ambiguous in fact. Evidently they aren't defining ambiguity in the logical sense that Professor Elhauge has in mind. We speculate that if we gave our respondents the "draw the drapes" hypothetical, they would rate it as pretty unambiguous in reply to any of our questions about it.
This discussion shows that ambiguity is itself ambiguous, and that subtleties in the idea are often unappreciated -- which is one of our claims. Professor Elhauge has helped fortify it by coming at the issue from a slightly different angle than we did, and (we think) from a different angle than courts use. Showing that a statute is ambiguous just in the logical sense that "draw the drapes" is ambiguous is not generally enough to get a court to declare the statute ambiguous (in a sense that would trigger the familiar consequences of such an announcement).