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