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.

Comments

[William Eskridge]

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.