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.