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
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.
Speaking on the topic of Utilitarianism with the Law and Philosophy Workshop, denizen of the Seventh Circuit and favorite of the Law School, Judge Richard Posner offered the mischievously understated opening: “I don’t really have much interest in the normative side of Utilitarianism.”
This might strike some as odd coming from a thinker popularly associated with the view that judges ought to pursue economic efficiency as a primary goal (a description most recently repeated in January 11th’s New Yorker). Posner elaborated that Utilitarianism has been extremely valuable for focusing our attention on practical consequences and for providing a tool to debunk the talismanic use of powerful words like “justice” and “rights.” But Utilitarianism, taken as a normative doctrine, is plagued by “insuperable boundary problems.” (With respect to economic efficiency, Posner noted that efficiency is one thing a judge might value, but there are other things that might factor into finding the “best” law.)
The Council on Foreign Relations has posted a video of Judge Posner discussing the topic "Fiscal Irresponsibility Clouds the Future of the United States." The discussion is part of the CFR's C. Peter McColough Series on International Economics.