The University of Chicago Law School Faculty Blog

Ambiguity in Legal Interpretation: A Debate

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.

Celebrating 25 Years of Frank Easterbrook on the Bench

In 25 years, Judge Frank Easterbrook has written opinions from the Seventh Circuit Court of Appeals bench with far-reaching influence, all the while continuing to mold young minds through teaching at the Law School and producing scholarship with characteristic incisive legal analysis.

It was only fitting, then, that the Law School and the University of Chicago Law Review should hold a celebration of Easterbrook's first quarter century on the bench.

In events titled "'The Interrogation Is Unceasing': A Quarter Century of Judge Frank Easterbrook on the Seventh Circuit," ten Law School professors in three panel discussions dissected Easterbrook's most significant opinions and the effect they have had on the legal world at large. Easterbrook attended each of the panels, which were held Jan. 11-13, and provided feedback to the panelists' observations.

This week's Faculty Podcast is a three-for-one deal, featuring recordings of all three panels. Subscribe here, or you can listen to them, watch video of the events, and read more about the events on our website.