Ambiguity: Posner Reply to Farnsworth Reply

It may seem hard to quarrel with Professor Farnsworth's anodyne statement: "Obviously judges know a lot more than our respondents did, as we acknowledged early.  The fact remains that judges often are confronted with a basic cognitive task similar to the one that faced the takers of our surveys:  they have to figure out what a piece of English text is best understood to mean.  Sometimes their impressions from the wording and punctuation are heavily influenced by things they know that our respondents didn't know.  Sometimes they aren't.  In the gun use case, a lot of the arguing was all about what a normal usage of the statute's words would mean; there wasn't very much reliance on knowledge that our respondents lacked.  In other cases the reliance on additional knowledge is greater, but the judges still argue about the simple English meaning of the sentence as one component of their analysis.  That is the component we are studying.  We suspect that the cognitive hazards we describe are common to judges just like anyone else."

But I will quarrel with it, particularly the notion of "cognitive hazards," and that judges do a lot of arguing over the "normal" usage of a statute's words. There is no interpretation of a document without a complex background understanding of the motives, intentions, and so forth of the drafter and also the function of the interpreter, which might be docile, obedient, but might instead be creative, and/or forgiving (I know what he's driving at, but he's expressed it badly--I will interpret according to what I think he intended). I don't know where "cognitive hazards" enter. If judges are literalists (a kind of "screw you" view of legislators: we know what you're driving at, but you said it wrong and we'll rub your noses in it by interpreting the statute to mean what it says rather than what it means), they will produce different interpretations from the loose constructionists, but the difference between the two groups has nothing to do with cognitive hazards. Judges make mistakes when they misapply their own interpretive approach, whatever it is.

I would be interested in Farnsworth's approach to the Raffles case. The contract was clear "on its face." Once the latent ambiguity is identified, interpretation becomes policy-saturated (who should bear the risk of a mistake in a contract). Since law is part of government, judges

Comments

[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.