The University of Chicago Law School Faculty Blog

Ambiguity: Further reply to Posner

Like Judge Posner, I doubt that semantic arguments do the work that they appear to do in judicial opinions.  But unlike him, I don't quite think the issue is a lack of candor.  I expect that the Justices who decided the gun use case could have passed a polygraph test in which they said the semantic arguments were a substantial basis for their decisions.  But sometimes, and probably here, the legal arguments in a case are pliable enough to inadvertently express policy preferences rather than constrain them, even if the holders of the preferences do not understand this to be happening.  Our studies show this effect in a more controlled and stylized environment.  People told to put their preferences aside and just worry about semantics end up taking semantic positions that advance their preferences.

I suspect that Judge Posner makes it a question of candor because he himself has so little use for arguments about semantics (so it would show a lack of candor for him to make them).  But I think many other judges have not yet arrived at his conclusions, and that they take conventional legal arguments, including arguments about semantics, more seriously -- even if, as we mean to show, those arguments often end up carrying the water for policy preferences after all. 

We do suggest a way to make judgments about language that are less likely to be infected by policy preferences.  If nobody cares about doing that, and all the talk to the contrary in judicial opinions is a smoke screen, then this part of our study, like much other legal scholarship, would indeed be a waste of time.  But we think some judges still like the idea of doing it.  Judge Easterbrook says he is among them; perhaps Judge Posner isn't.  That's an interesting dispute (if it really is a dispute), but our project is not meant to try to settle it.

Further Reply to Farnsworth

I take the key passage in Professor Farnsworth's reply to be the following: "Maybe he thinks these passages are insignificant; it's just stuff that judges are required to say by custom, but that has nothing to do with their actual reasons for decision.  There may be something to that, but we think the materials that judges use (and feel obliged to use) to build their arguments can have some effect on what they actually do decide, so we aren't ready to treat these sorts of debates as though they don't exist" (emphasis added). I take it that by "some effect" he means a substantial effect, as otherwise the semantic arguments would not be interesting. My question is: what is the evidence that arguments about dictionary meanings and other semantic issues have a substantial effect on case outcomes?

The Supreme Court is a political court operating in a goldfish bowl; why should we expect candor in its opinions, any more than we expect candor in a Presidential address? There used to be candid Justices--Holmes and Jackson spring to mind--but who are the candid Justices today? And how often does one find semantic nitpicking in outstanding lower-court judges like Hand and Friendly?