The University of Chicago Law School Faculty Blog is hosting a debate over a new paper, Ambiguity About Ambiguity: An Empirical Inquiry Into Legal Interpretation written by Ward Farnsworth, Dustin F. Guzior, and Anup Malani.
As the paper’s abstract says:
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.
It’s not a minor issue. If the plain meaning rule fails, then:
[C]ourts often treat ambiguity as a kind of gateway consideration when they interpret a statute. If the statute is ambiguous, the judge might then become interested in sources of guidance, such as legislative history, that wouldn’t otherwise be considered. Or ambiguity might cause a judge to defer to an agency’s view of the statute, as under the Chevron doctrine. Or ambiguity might cause a judge to resort to a canon of construction such as the rule of lenity, or the doctrine that courts should prefer interpretations of ambiguous statutes that avoid difficult constitutional issues, or the rule that ambiguous statutes will be interpreted to avoid conflict with foreign law, or many others. Ambiguity also serves as an occasion for judges to consult their own views of policy, whether openly, quietly, or unconsciously
Here’s a selection from the paper:
If we assume that a respondent’s policy preference is in some way a reflection
of personal views, then asking people whether a statute is ambiguous, or whether two different readings of it are plausible, evidently causes them to consult their own views of how they would like the statute to be read. We hypothesize that those two questions amount, in the experience of people who are asked them, to inquiries into how strongly they themselves feel sure that one reading is better than another, and those judgments are easily contaminated by the respondents’ preferences—as a matter of policy—for a particular outcome. Asking respondents whether ordinary readers of English would agree about the best reading, however, forces them to change their frame of reference. They no longer are asking themselves which reading they prefer, or how sure they feel that one of them is right. They are forced to look outside themselves, so to speak, and to consider what others would likely say. The outward investigation is merely hypothetical—a thought experiment; but it’s a consequential thought experiment, because it reduces the bias otherwise exerted by the respondent’s policy preferences.
In other words: a reader’s mindset changes the way they interpret law. If a reader is simply asked to read a statute and interpret it, they will interpret it according to their policy preferences. If, instead, the reader is asked to read the statute the way they think a hypothetical unbiased person would read it, the reader is more likely to discern ambiguity and thus presumably more likely to reach an unbiased interpretation.
You can play the ambiguity game yourself using one of the examples from their study:
A federal statute, 21 U.S.C. § 841(b), provides for a mandatory minimum sentence of five years for anyone who distributes more than one gram of a “mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD).” The defendant was caught distributing LSD that had been dissolved and sprayed onto blotter paper. The weight of the LSD alone was 50 milligrams, well below the statutory threshold. But if the weight of the blotter paper was included, the total weight was five grams, well above the statutory threshold.
The question is whether, under § 841(b), the blotter paper should be included in deciding, for purposes of sentencing, the weight of the LSD the defendant distributed. Under the defendant’s reading of the statute, the blotter paper should not be included in deciding the weight. Under the government’s reading, it should be included in deciding the weight.
Do you think the statute is ambiguous? If not, which way should it be interpreted? Is that the way you want it to be interpreted? How do you think others would interpret it?
My initial reaction to the study was the same as William Eskridge’s:
The methodology for the questions seems to me to invite normativity from respondents: The authors repeatedly ask which reading of the statute is “better”. I have no idea how a first-year law student would understand this kind of inquiry; I’d understand it as asking me to see “ambiguity” (or whatever) as a normative rather than a purely descriptive endeavor. It is hard for me to tell how serious a concern this is.
Indeed, that seems to be the biggest problem with the questions they asked. It is no answer for a court — or a law student — to deem a statue ambiguous and then give up. They have been asked to decide what a statute means, and so they must come up with an answer. Lacking anything else to go on, they will defer to their own policy interpretations.
As Judge Frank Easterbrook commented,
Judges read statutes in context, not as isolated clauses. So for Chapman v. United States, 500 U.S. 453 (1991), the LSD case, the judges asked not whether the LSD’s carrier medium (blotter paper) is part of the same “mixture or substance” as LSD in the abstract (or as a matter of chemistry), but whether LSD-in-blotter-paper is the same sort of mixture as cocaine-in-mannitol or other common dilutants. And the judges knew (as the students answering the survey did not) that the statute provided alternative punishment levels for pure PCP and diluted PCP but treated the weight of all other drugs as including the entire “mixture or substance”. This implied that the weight of LSD’s carrier counts.
Even so, every judge of the seventh circuit (which sat en banc, see 908 F.2d 1312 (1991)) and every Justice of the Supreme Court deemed the statute ambiguous. It’s a surprise to me that so many of the first-year students found clarity where, despite the aid of context, the members of the interpretive community found ambiguity. What divided the judges was not disagreement about the existence of ambiguity but disagreement about how to respond to that ambiguity. Some thought it appropriate to use linguistic context to make a best estimate of meaning; others wanted to put the linguistic context aside and consider practical effects—which when coupled with the rule of lenity or a desire to avoid constitutional questions led to a vote for the defendant.
I agree with his analysis, but it doesn’t surprise me that the first-year students didn’t recognize the ambiguity. One of the core components of “thinking like a lawyer” — which is what law school is supposed to teach — is the ability to review statutes, regulations, opinions, agreements, testimony, and other writings critically to discern the meaning of those writings.
It’s thus no surprise to me that a first-year law student, with only minimal training in the law, would not perceive multiple possible interpretations of a complicated statute, particularly if they didn’t have the benefit of any additional information. After all, even Congress and the President apparently didn’t recognize the ambiguity or, at least, didn’t find it important enough to rewrite the statute to avoid the ambiguity prior to enacting it.
Let’s get back to the main finding: a reader’s mindset changes the way they interpret law. Contrary to Steve Williams’ response, this finding has practical implications for judges, since judges are asked to resolve ambiguities by adopting different mindsets, such as by attempting to divine the legislature’s intent.
Judge Richard Posner’s remarks exemplify the problem:
When judges say that the “literal” meaning of a statute should be followed unless the result is “absurd,” they mean (or should I think be understood to mean) that the statute isn’t clear once the context is understood.
And another way to put all this is that a statute is a communication and that in decoding a communication we draw on everything we know about the communicator and the subject matter of the communication in deciding what it means.
Problem is, that’s putting the cart before the horse — what better evidence is there of a legislature’s intent than the statute itself? Once we deem the statute ambiguous and start “decoding” even more ambiguous sources, like legislative history (e.g., “everything we know about the communicator and the subject matter…”), we’ve done little more than move into material even more ambiguous than the material with which we started.
Consider Judge Posner’s opinion for the Seventh Circuit in Fitzgerald v. Chrysler Corp., 116 F. 3d 225 (7th Cir. 1997):
Read literally, [the Racketeer Influenced and Corrupt Organizations Act] would encompass every fraud case against a corporation, provided only that a pattern of fraud and some use of the mails or of telecommunications to further the fraud were shown; the corporation would be the RICO person and the corporation plus its employees the “enterprise.” The courts have excluded this far-fetched possibility by holding that an employer and its employees cannot constitute a RICO enterprise. … We do not understand the plaintiffs to be quarreling with this exclusion, even though it doesn’t emerge from the statutory language; it emerges from a desire to make the statute make sense and have some limits.
That’s simply “decoding” one ambiguity (i.e., the definition of “enterprise” in the RICO Act) by way of “decoding” even greater ambiguities (i.e., divining the legislature’s intent and “sensible” judicial policy by way of a variety of sources).
That’s where the paper’s conclusion has practical application for judges: how did Judge Posner analyze which sources to review? How did he decide the persuasive weight he gave each source? How did he interpret them: according to the meaning he found in the sources, or according to the meaning he thought an “ordinary English speaker” would find?
The canons of statutory interpretation don’t provide a clear answer to any of the foregoing questions.
That brings us back to the paper’s conclusions about the effect of a reader’s mindset on their interpretation: since courts don’t have clear guidance on what “mindset” they should use in interpreting secondary sources to decode ambiguous statutes, the study suggests they’re likely to use their “internal” mindset and thereby likely to end up with biased interpretations.