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 matter.
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.
Professor, Judge Posner, I think the emphasis in this debate is partially wrong or off the mark, not in the Greek sense of sinful but still problematic. The impact of ambiguity is important to me. I have discussed with you or in articles how over 2 million people are in prison and over 1.5 million are in nursing homes and from 1.6 million to 5 million are under adult guardianships. Ambiguity has effects. Guardians really can ambiguously remove the rights and resources of almost everyone or anyone. A guardian can just assert the person has some ambiguous difference or disability or thing the person-guardian does not like and take away the persons' resources and rights. Ambiguity has discriminatory potential. Patrick Fitzgerald's prosecutions have taken advantage of ambiguity. One can ALWAYS say this government is corrupt. Person A interacted with Person B, therefore the government is corrupt. Then we jail many people as a result of such ambiguities. Person A did not disclose fact B and Person A ends up doing a fraud conviction. Person A controls resource C and Person A ends up in a federal prison. Person A neglected Person O and Person A is in a state prison for neglect. Ambiguity has impacts and I think we need to recognize that juries tend to convict people in response to ambiguity. let me be honest i would have overturned some of Pat Fitzgerald's rulings and also guardianship taking away rights in some cases. Sorry if there is any conflict of interest...I am in no way trying to create a conflict of interest in some way. I am an active author writing on topics each day as a potential source of food and drink and resources.
Posted by: Accelinflation | February 10, 2011 at 03:02 PM