The University of Chicago Law School Faculty Blog

Ambiguity in Legal Interpretation: Frank Easterbrook's reaction

I enjoyed the paper. The distinction between internal and external standards of ambiguity is fruitful.

Although the authors ask about "ordinary readers," it may help to figure out who the addressees of a statute are and then ask how these people would understand the text. This is the approach of using an interpretive community to identify meaning—the "community" part being important because linguistic conventions differ (think of the difference between how lawyers and physicians use language), while no one really knows who the "ordinary reader" may be. The more precise we are in identifying the interpretive community, the more likely we are to agree on how they understand a text, and thus what it means.

Unfortunately, a survey of first-year law students (or any other group) needs to hold down the length of questions and therefore does not include all of the information needed either to identify the right interpretive community or understand what tools that community would employ. For current purposes, let's suppose that the right community for criminal statutes is all federal judges serving at the time of enactment. Because the three statutes used as examples in the paper all are recent, we needn't worry about the difference between the interpretive community at the time of enactment and the interpretive community at the time of application.

Judges read statutes in context, not as isolated clauses. So for Chapman v. United States, 500 U.S. 453 (1991), the LSD case, the judges asked not whether the LSD's carrier medium (blotter paper) is part of the same "mixture or substance" as LSD in the abstract (or as a matter of chemistry), but whether LSD-in-blotter-paper is the same sort of mixture as cocaine-in-mannitol or other common dilutants. And the judges knew (as the students answering the survey did not) that the statute provided alternative punishment levels for pure PCP and diluted PCP but treated the weight of all other drugs as including the entire "mixture or substance". This implied that the weight of LSD's carrier counts.

Even so, every judge of the seventh circuit (which sat en banc, see 908 F.2d 1312 (1991)) and every Justice of the Supreme Court deemed the statute ambiguous. It's a surprise to me that so many of the first-year students found clarity where, despite the aid of context, the members of the interpretive community found ambiguity. What divided the judges was not disagreement about the existence of ambiguity but disagreement about how to respond to that ambiguity. Some thought it appropriate to use linguistic context to make a best estimate of meaning; others wanted to put the linguistic context aside and consider practical effects—which when coupled with the rule of lenity or a desire to avoid constitutional questions led to a vote for the defendant.

In a judge's daily work, there is substantially more disagreement about the consequences of ambiguity than about the fact of ambiguity. Textualists see ambiguity in statutes and regulations as often as pragmatists or intentionalists do (well, almost as often). The paper under discussion does not tell us much about how that ambiguity should be resolved. But it does caution against allowing one's own ideas of wise policy (the "internal judgment") to influence when a text will be declared "clear." For Ward Farnsworth reports (in his response to Einer Elhauge) that the internal judgment not only leads respondents to report less ambiguity but also leads them to treat texts as "clearly" meaning what the respondents think is the better policy. Judges can't be voted out of office, so they need an interpretive methodology that reduces the role of their own views of wise policy. No methodology can eliminate it, but the paper does tell us that using an external judgment will reduce the risk that judges will smuggle their own preferences into the law by a confident declaration of "plain meaning".

Ambiguity in Legal Interpretation: Reply to Einer Elhauge (round 2)

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). 

Ambiguity in Legal Interpretation: William Eskridge's Response

1. I have argued in both historical work (101 Colum. L. Rev. 999) and empirical work (96 Geo. L.J. 1083) that judges applying textual plain meanings or finding ambiguities are influenced by their personal or political preferences and (relatedly) by normative concerns, at least in the "hard cases" SCOTUS hears. Does the authors' study confirm some evrsion of this idea? I am not sure.

2. The methodology for the questions seems to me to invite normativity from respondents: The authors repeatedly ask which reading of the statute is "better". I have no idea how a first-year law student would understand this kind of inquiry; I'd understand it as asking me to see "ambiguity" (or whatever) as a normative rather than a purely descriptive endeavor. It is hard for me to tell how serious a concern this is.

3. Using criminal statutes may muddy the experiment in several ways, as the authors discuss and maybe in one additional way. When I was a first-year law student, I was aware that criminal statutes were supposed to be construed in favor of the defendant; some students may know this, and that kind of knowledge may make questions about "ambiguity" ambiguous. Probably a minor concern, but it bugs me.

4. Can we generalize from first-year law students (taking the survey) to judges (who decide cases)?  At this point, I do not see why we should make that leap. Judges know a lot more than law students, and they have been socialized into legal thinking; additionally, their decisions are accountable to critical scrutiny from other judges, from the press, from academics, and (for many state judges) from the public/voters. Are judges more "disciplined" in fencing out norms? I do not think so, and my empirical work suggests not, but I do not see how surveys of law students offer conclusive (or even strong) evidence about judges.

5. I am intrigued by the authors' finding that law students were less likely to bend text to reflect their preferences when the question concerned external meaning rather than their own understanding of meaning. For the reasons noted above, I am not sure the authors have proven this, but it is a neat hypothesis. It does strike me that older, legally savvy judges might not be so much influenced by the wording of the inquiry, however.

6. How best to prevent judges (not just law students!) from importing their preferences into judgments about plain meaning/ambiguity?  This may be an impossible task, but if some headway can be made against this tendency, there is empirical work suggesting one source as potentially constraining.  Jim Brudney and Corey Ditslear have done important empirical work arguing that considering legislative history, and not just text and textual canons, actually counterbalances political preference. They have an article in Judicature making this point, and perhaps more recent articles.

Anyway, this is an area for fruitful inquiry.  Thanks to the convenors and the authors.

SOME AMBIGUITIES IN “AMBIGUITY ABOUT AMBIGUITY” – Part II By Einer Elhauge

You know you are dealing with great productive scholars when you point out there is an ambiguity in their study that merits a follow up article, and they are have already  written it.  I gather from Professor Farnsworth’s post that their follow up article will resolve my first ambiguity, finding that interpreters who see less ambiguity are more likely to make decisions that reflect  their own political views.  This brings me back to my point that this study does seem to undercut the argument that textualist methodologies that are designed to avoid conclusions of ambiguity will reduce the influence of the judge’s own politics.

Now for the second ambiguity I saw in the original paper.  The authors write as if the key distinction is between the internal versus external perspective: that is, whether  the question is whether the interpreter finds the meaning ambiguous or whether the interpreter believes that ordinary readers would find the meaning ambiguous.  But that is only one of two dimensions varied by the questions.  The “internal” questions ask a linguistic question about the logical parsing of text: that is, they ask whether the statute is ambiguous or whether another reading is plausible.  The “external” questions ask a predictive question of which reading most readers would find better.  The linguistic/logical question is not really the same as the predictive question.

Suppose, for example, my wife asks me to “draw the drapes.”  If you ask me whether the meaning is ambiguous, I would take it as a linguistic/logical question and have to admit the answer is yes: it could mean either that I should pull the drapes to the side to let the light in or that I should draw a nice picture of the drapes.  If you ask me to predict which interpretation most people would find better, then I would say the pretty clear answer is to pull the drapes to the side.  So I would answer the two questions differently.  But is it because of how they vary the internal/external perspective?  I think not, because if you asked me to predict which interpretation I would find better, I would say the pretty clear answer is to pull the drapes aside.  On the other hand, if you asked me whether most readers would conclude the phrase was ambiguous (in a case where both possible interpretations were pointed out to them), I would say the answer is yes.  So at least in this example, the linguistic/logical nature of the question is what does the work rather than the internal/external element.  To sort these possibilities out, it would be better to have questions that varied only one element at a time.

The issue is related to the fact that the questions ask respondents which reading is “better.”  The authors acknowledge some ambiguity in whether respondents would take this word to mean better as a matter of pure interpretation or as a matter of policy, but they argue this issue cannot explain their findings because all the questions had the same “better” phrasing.  However, there is a crucial difference.  The ambiguity/plausibility questions began by asking whether the statute was ambiguous or had another plausible interpretation and thus in context clearly indicated that “better” meant better along the dimensions of ambiguity or plausibility rather than of policy.  The ordinary readers question had no such antecedent, it just asked about the extent to which ordinary readers would disagree about which reading is “better.”  One might well answer this question assuming that “better” means better as a matter of policy, and thus that the question asks about the extent to which most readers would agree about which reading is better as a matter of policy.

But perhaps this will also be addressed in the follow-up paper that I eagerly anticipate.

Ambiguity in Legal Interpretation: Some thoughts in reply to Judge Williams

Judges often have to decide whether statutes are ambiguous, because that determines, e.g., how the Chevron doctrine applies, or whether some canon of construction applies, or (depending on the judge) whether certain sorts of evidence of the statute's meaning should be considered.  Of course the lawyers' briefs will point out alternative possible meanings, and the good judge will take them seriously.  But that doesn't mean the judge inevitably will find ambiguity.  Sometimes the judge just decides that despite what the lawyers say (and maybe despite what other judges say), one interpretation is so much better than the other that the text really isn't ambiguous.  And that decision can be influenced to a greater or lesser degree by the preferences of whoever makes it.

That's where our study comes in.  It shows that for at least some populations, asking "is the statute ambiguous?" isn't the same as asking "would ordinary speakers of English agree probably about the meaning of the statute?"  Judicial opinions often argue about ambiguity without making clear which of those two questions they mean to be answering.  Perhaps judges assume that they really are the same question.  But they needn't be.  To say a text is "unambiguous" could be a statement that the judge (or whoever is talking) is very sure how best to read the text.  Or it could be sort-of empirical claim that most people would agree about what the text means.  Sometimes judges seem to argue with each because some of them are coming at the question the first way and others are coming at it the second way.  (This is one of the "ambiguities about ambiguity" we refer to in the title of our paper.)

Our study suggests that there is an important difference between these two ways of thinking about ambiguity.  The point isn't quite that people sometimes think a text is unambiguous when in fact there is lots of disagreement about its meaning—though of course that's true.  The point, rather, is that thinking about those two questions produces different likelihoods that the answers will be entwined with (probably "influenced by") the policy preferences of the reader.  Those who consider whether ordinary readers would agree about the meaning of a text—which is a question some judges fuss about more than others—are more likely to be able to give answers that are independent of their own policy judgments.  This may not achieve true "neutrality" (which for these purposes might just mean an answer uninfected by policy preferences), but it does better than other questions we have researched.

Of course some might say that they want policy judgments to play a part in interpretation.  That's fine, but we still think that most judges like the idea of being able to think separately about questions of ambiguity and meaning on the one hand and about their own policy preferences on the other, even if they go on to weigh those considerations differently when they decide who wins the case.  (Another objection is that we didn't experiment with judges; we experimented with law students.  Fair enough.)

Ambiguity in Legal Interpretation: Reply to Einer Elhauge

Einer is right to point out an ambiguity in our paper:  okay, so people with strong policy preferences are more likely to find statutes unambiguous – but do they then read the statutes to mean what they want them to mean? The answer, as it turns out, is yes.  Perhaps we didn’t make that as clear as we should have in the paper we recently published, because we wanted to save those second findings for the next article (which will be released soon).  But in short, and as Anup said in his first post, people with strong policy preferences tend to read statutes to conform with those policy preferences – or at least they do that when they are asked which reading is most consistent with the ordinary meaning of the text.  But when they are asked what reading they would expected ordinary readers to think most consistent with the ordinary meaning of the text, they are able to let go of their preferences and give answers independent of them.

 

SOME AMBIGUITIES IN “AMBIGUITY ABOUT AMBIGUITY” – Part I By Einer Elhauge

Farnsworth, Guzior and Malani have written a fascinating article that makes an important contribution to the literature.  Interpretive debates often turn on empirical assumptions for which there is little empirical evidence, so it is especially wonderful to have such an illuminating empirical study of the effect of how the ambiguity question is framed.  I was particularly struck by the finding that interpreters with strong policy views were likely to find statutes less ambiguous.  The old textualist argument stressed that we should avoid nontextualist methodologies on the grounds that they allowed judges with strong policy views to read more ambiguity into statutes and then interpret the statutes according to the judge’s own policy views.  This article’s findings cut in the opposite direction by finding that interpreters with strong policy views find less ambiguity.  I suspect this finding reflects the triumph of statutory default rules like Chevron, the rule of lenity, or the canon of constitutional avoidance – now the best way to impose a judge’s own policy views may be to read statutes as unambiguously meaning what the judge likes, in order to avoid triggering a default rule that may run contrary to the judge’s views.

But there are some ambiguities in the study that raise questions about the import of its findings.  We’re supposed to keep these post short, so let me just raise the first one in this post and save the others for later. 

The first ambiguity is that it isn’t clear from the reported findings that those who find statutes unambiguous are interpreting statutes in the direction that furthers their own policy views.  The authors seem to assume they do because the authors conclude that “asking people whether a statute is ambiguous, or whether two different readings of it are plausible, evidently causes them to consult their own views of how they would like the statute to be read.”  But their actual reported finding is simply that those who find the statute less ambiguous are more likely to have strong pro-defendant or pro-government views.  That finding is equally consistent with the possibility that those who have strong pro-defendant views are more likely to read a statute as unambiguously favoring the government in order to suppress the effect of their own policy views, and that those with strong pro-government views are more likely to read the statute as unambiguously favoring the defendant.

Perhaps it is more likely that their unambiguous interpretations correlated positively with their policy preferences, but because the study did not ask which interpretation the respondents would adopt, the opposite is also possible.  If their unambiguous interpretations correlated negatively with their policy preferences, then asking people whether a statute is ambiguous makes them less likely to consult their own views.  If so, then the old textualist argument may be right after all, and favor framing the question as whether the statute is ambiguous.

Ambiguity in Legal Interpretation: Steve Williams' Response

I found Anup's article very interesting--surprising that what seems like a relatively modest change of reference point should produce such strong changes in result. But I'm skeptical that it can help judges reach more neutral interpretations, because competent briefs in a case that is at all close alert the judge to the likelihood that non-lunatics can honestly find conflicting meanings in the statute, thus putting the judge in a frame of mind to take competing interpretations seriously. And we've all seen cases in which one set of judges declare that a statute unambiguously means A, and another set declares that it unambiguously means not-A; yet findings of judicial non-neutrality persist.

I've just finished Donald Kagan's "Thucydides: The Reinvention of History," arguing that many of Thucydides's interpretations are unsound and contradicted by the facts he presents. It too suggests to me that non-neutrality will always be with us. Kagan points out that Thucydides provides almost all the information that he (Kagan) uses to claim error in Thucydides's interpretations. That seems a good basic standard for judges; meeting it should help achieve neutrality.

Ambiguity in Legal Interpretation: Opening remarks

When confronted with a dispute about a statute, people will have policy preferences about how the case should come out.  They also will have opinions about what the statute means just as a matter of English and whether it’s ambiguous.  The questions that interest me and my co-authors (Ward Farnsworth and Dustin Guzior) involve the relationships between those issues.  Do policy preferences affect peoples’ judgments about what a statute means and how clear it is?  If so, is there any way to reduce that influence?

We examined these issues by surveying over 1,000 law students at various schools.  We showed them statutes and facts that the statutes might apply to; the problems were based on real Supreme Court cases.  We asked our respondents what outcome they preferred as a matter of policy preference.  Then we asked them to say whether they thought the statute was ambiguous, or what reading of the statute’s text they thought was best. 

The first result is that peoples’ judgments about ambiguity and meaning are closely entwined with their policy preferences.  People with strong preferences about how a case should come out tend to find that the statute at issue is unambiguous, and that it means what they want it to mean.  This is true even when we instruct them to put the statute’s text aside when stating their preferences, and to put their preferences aside when stating their views about the text.  They generally can’t do it.

But something interesting happens when we change the questions.  Instead of asking our respondents whether they thought the statute was ambiguous, sometimes we asked them whether they thought ordinary readers would likely agree about the statute’s meaning.  Or instead of asking them what they thought the statute meant as a matter of ordinary English, we asked them what they thought ordinary readers would think it meant.  The answers were then remarkably different.  They weren’t biased.  When saying what ordinary readers would think, the respondents, as a group, were able to give answers that were independent of their preferences about how the case should come out.

Here’s an example.  In Chapman v. United States, a statute applied a harsh sentence to anyone who distributed more than one gram of a "mixture or substance containing a detectable amount” of LSD.  The question was whether, in sentencing the defendant, the court should weigh the blotter paper onto which his LSD had been sprayed, or just the LSD itself.  We asked our respondents whether the statute was ambiguous, but we put the question to them in different ways.  The results are shown in this graph:

 


The vertical axis measures judgments about ambiguity.  The horizontal axis measures policy preferences.  The green and orange lines show the results when we ask people whether they think the statute is “ambiguous” or whether multiple readings of it are “plausible”.  The black line shows the results when we ask whether ordinary readers would likely agree about the statute’s meaning.  Notice that the black line does not vary with policy preferences nearly as much as the other lines do.
 
Here is another example.  In Smith v. United States, the defendant was arrested after trying to trade his machine gun for a bag of cocaine.  A statute imposed a long sentence on anyone who “uses” a firearm in relation to a drug trafficking crime.  The question was whether the defendant “used” the gun by trying to trade it.  We asked our respondents what they thought the statute meant.  But again we put the question in different ways.  The results have not yet been published, but they are illustrated here:




Subjects who wanted the government to win were much more likely than others to say that the government’s reading of the text was best as a matter of ordinary meaning.  They also were likely to say that the government’s position was most consistent with the intent of the statute’s drafters.  But when they are asked what ordinary readers would think the statute means, the result is the nearly flat line:  their preferences and their judgments become two different things.

These findings raise many interesting questions.  Why do these questions produce such different answers, and with such different relationships to policy preferences?  What, if anything, might they suggest about how a judge or lawyer should think about a statute’s meaning?  Of course we can’t generalize too aggressively from student survey takers to lawyers and judges who have more experience, more time to think, and more resources to bring to bear on their interpretive problems.  But the basic cognitive issue we find here may well extend to those other populations.  Everyone knows that some judges tend to read criminal statutes in the government’s favor more often than others do; yet the judges speak and often claim to feel as though they are just arguing about law.  These studies suggest how it is that this happens.  But of course it would be better to survey practicing lawyers and judges (it’s just harder to get access to those populations). 

And the surveys have other limitations, and produce other findings, and raise other questions.  But I can get to that later, since this post is long enough.  Let me invite initial thoughts, questions, suggestions, criticisms, etc., from our other participants.

Ambiguity in Legal Interpretation: A Debate

Here at Chicago, we love nothing more than a good debate, and this extends to the Faculty Blog as well. Next week we'll be featuring a conversation about Professor of Law and Aaron Director Research Scholar Anup Malani's paper "Ambiguity about Ambiguity: An Empirical Inquiry into Legal Interpretation." Along with Prof. Malani, the debate will feature Professor Einer Elhauge (Harvard), Professor William Eskridge (Yale), Chicago's own Judge Richard Posner, and Judge Stephen Williams (D.C. Circuit).

The abstract of Anup's paper is below, and you can download the complete paper here. Tune in Monday for what is sure to be a fascinating debate.

Most scholarship on statutory interpretation discusses what courts should do with ambiguous statutes. This paper investigates the crucial and analytically prior question of what ambiguity in law is. Does a claim that a text is ambiguous mean the reader is uncertain about its meaning? Or is it a claim that readers, as a group, would disagree about what the text means (however certain each of them may be individually)? This distinction is of considerable theoretical interest. It also turns out to be highly consequential as a practical matter.

To demonstrate, we developed a survey instrument for exploring determinations of ambiguity and administered it to nearly 1,000 law students. We find that different ways of asking whether a statute is ambiguous produce very different answers. Simply asking respondents whether a statute is “ambiguous” as applied to a set of facts produces answers that are strongly biased by the policy preferences of those giving the answers. But asking respondents whether they would expect others to agree about the meaning of the statute does not produce answers biased in this way. This discrepancy leads to important questions about which of those two ways of thinking about ambiguity is more legally relevant. It also has potential implications for how cases are decided and for how law is taught.

Update: Prof. Malani's co-author on the paper, Ward Farnsworth of Boston University, and Judge Frank Easterbrook will also be joining the debate.