THE MOST IMPORTANT AMBIGUITY IN “AMBIGUITY ABOUT AMBIGUITY” By Einer Elhauge

Ok, so I think with Professor Farnsworth’s two responses, we can move past the first two ambiguities.  I do think it would be better in the follow up work to eliminate the concern by varying only the external/internal angle and making the rest of the phrasing identical.  So, given that the internal question asked, “Do you think the statute, as applied to these facts, is ambiguous?”, the external question should ask, “Would ordinary readers think the statute, as applied to these facts, is ambiguous?”  Until that is done, we cannot eliminate the possibility that other differences in phrasing caused the results rather than the external/internal difference, but I agree with Professor Farnsworth that the new study comes pretty close, so this contrary possibility is probably unlikely.

Now we come to my last – and most important – ambiguity about the paper: it’s ambiguous normative implications.  The paper is careful to avoid drawing any explicit normative conclusions, but it does describe the effect of interpreter policy preferences as a “bias”, suggesting some disapproval of it.  Whether or not that was intended, the question arises: would such disapproval be merited?  Should we encourage judges to frame ambiguity questions using an external rather than internal perspective?

If the statute had a clear meaning or we could reliably estimate enactable legislative preferences on the issue, then I think (as I lay out in my book, Statutory Default Rules), that it would be normatively undesirable for judges to use judicial policy preferences rather than statutory meaning or enactable legislative preferences.  I think such a case is usually assumed when one presumes that it is bad for judges to use their own policy preferences.

But here we do not have such a case.  Interpreters who used the external perspective found the statutory meaning unclear, and it is hard to deny the statutes were unclear given that the relevant cases made it to the Supreme Court (which focuses on cases where the law is unclear) and are classics in legislation casebooks (which focus on cases that lend themselves to evenhanded debate).  Nor were any of the interpreters given any evidence about legislative preferences.

So the question arises: if interpreters using the external perspective were not deciding case outcomes based on statutory meaning or legislative preferences or their own policy preferences, what was the basis for their decisions?  Several possibilities arise.

One is that they just decided case outcomes randomly.  But it isn’t clear why we should think that is better than having judges employ judicial policy preferences.  After all, judges are appointed through a political process, so one might think that judicial policy preferences are more likely to reflect societal policy preferences than random choice would be. 

Another is that, consistent with the fact that their own ambiguity judgments reflect their own policy preferences, their prediction about the ambiguity judgments of ordinary readers will reflect their best guess about the policy preferences of most ordinary readers, which then becomes the baseline they apply in deciding case outcomes.  Perhaps such guesses about majoritarian preferences would be better than using judicial preferences, though such guesses might also deviate from actual enactable preferences, which are not the same as simple majoritarian preferences given cloture, bicameralism, Presidential vetoes, and the fact that Senators are not allocated in proportion to population.  (Maybe it would be better to ask what ordinary legislators would think.)  If the external framing did lead interpreters to use their best guess of majoritarian preferences, then I would think that would bias them in favor of the government.  (If political campaigns reflect what politicians think most voters want, it suggests they don’t think voters favor criminal defendants.)  But a sneak peak at the second paper indicates that interpreters using the external perspective instead tend to rule for the criminal defendant.

A final possibility is that interpreters who are not deciding based on statutory meaning, enactable preferences, or their own preferences are using a default rule that favors criminal defendants, probably not because they know the rule of lenity yet, but because they have gotten the general sense from television crime dramas that ties go to the criminal defendant.  This seems consistent with the data in the second paper.  It also happens to be the right result from my perspective because (as my book argues), I think that judges who cannot reliably ascertain statutory meaning or estimate enactable legislative preferences should use the default rule most likely to elicit legislative preferences, which here is the rule of lenity because prosecutors have a much easier time getting legislative clarifications ex ante or overrides ex post, especially given that prospective criminal defendants may not know who they are or be reluctant to identify themselves.  But it isn’t clear to me what would happen in non-criminal areas where television is less likely to lead to implicit default rules.

Finally, it bears emphasis that the relevant questions did not give the interpreters any evidence on legislative preferences or likely effects, nor any background on statutory default rules like the rule of lenity.  It is possible that such evidence and background would change the results.  Interpreters seem more likely to apply their own policy preferences when they know nothing of the legislature’s preferences or about statutory default rules.  Further, if we tested a case where interpreters did know about legislative preferences, we might find that the external perspective would cause interpreters to use their guesses about majoritarian voter preferences rather than rely on legislative preferences, which would seem less desirable. 

So we have some things for yet another follow up paper to explore, which just confirms the value of this generative paper.

Comments

[FrankMCook]

From a practicing lawyer's point of view, the interesting question is whether phrasing your argument in terms of ordinary readers would help when one is trying to persuade a judge to read a statute contrary to his predilections. I suspect the short answer is that it couldn't hurt.