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April 30, 2010


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Lawrence Solan

I have some empirical work that bears on this issue. It involves the interpretation of contractual language, but the linguistic issues apply to statutes as well. Dan Osherson (psychologist), Terri Rosenblatt (former student) and I published an article, False Consensus Bias in Contract Interpretation (108 Colum. L. Rev. 1268 (2008)). We presented participants with scenarios about which judges have been in disagreement. One involved the question of whether a worker injured by inhaling dust that is emitted in a manufacturing process has suffered a “pollution injury” for purposes of construing a pollution exclusion clause in an insurance policy. Predictably, the participants varied in their responses. We then asked them how many participants out of 100 they thought would answer as they did. No matter what the scenario and what the answer (yes, no, can’t tell), they overestimated the extent to which others would agree with them.

We also ran this study with state and federal judges who were attending a conference. As Judge Posner would predict based on his posting, the judges were far more uniform in their responses, with most saying that the dust was not pollution. But the 12% who did say it was pollution thought on the average that 69% of judges would agree and that more than 70% of lay people would agree.

This “false consensus bias” suggests that both judges and lay people are susceptible to assuming that their interpretation is the ordinary one whether or not that is so. Part of the context in which a judge interprets language is the judge’s intuitions as a native speaker of what a speaker or writer would ordinarily mean by using particular language. Research shows that consensus dissipates once we stray from prototypical situations, and just about all interesting statutory cases are about non-prototypical situations. No doubt an individual’s personal values can play a role in how one reacts to such equivocal situations, but the research on false consensus bias suggests that individuals – including judges – might not always be aware that they are doing anything other than interpreting language in accord with their everyday experience.

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