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SOME AMBIGUITIES IN ?AMBIGUITY ABOUT AMBIGUITY? ? Part I By Einer Elhauge

Farnsworth, Guzior and Malani have written a fascinating article that makes an important contribution to the literature.  Interpretive debates often turn on empirical assumptions for which there is little empirical evidence, so it is especially wonderful to have such an illuminating empirical study of the effect of how the ambiguity question is framed.  I was particularly struck by the finding that interpreters with strong policy views were likely to find statutes less ambiguous.  The old textualist argument stressed that we should avoid nontextualist methodologies on the grounds that they allowed judges with strong policy views to read more ambiguity into statutes and then interpret the statutes according to the judge?s own policy views.  This article?s findings cut in the opposite direction by finding that interpreters with strong policy views find less ambiguity.  I suspect this finding reflects the triumph of statutory default rules like Chevron, the rule of lenity, or the canon of constitutional avoidance ? now the best way to impose a judge?s own policy views may be to read statutes as unambiguously meaning what the judge likes, in order to avoid triggering a default rule that may run contrary to the judge?s views.

But there are some ambiguities in the study that raise questions about the import of its findings.  We?re supposed to keep these post short, so let me just raise the first one in this post and save the others for later. 

The first ambiguity is that it isn?t clear from the reported findings that those who find statutes unambiguous are interpreting statutes in the direction that furthers their own policy views.  The authors seem to assume they do because the authors conclude that ?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.?  But their actual reported finding is simply that those who find the statute less ambiguous are more likely to have strong pro-defendant or pro-government views.  That finding is equally consistent with the possibility that those who have strong pro-defendant views are more likely to read a statute as unambiguously favoring the government in order to suppress the effect of their own policy views, and that those with strong pro-government views are more likely to read the statute as unambiguously favoring the defendant.

Perhaps it is more likely that their unambiguous interpretations correlated positively with their policy preferences, but because the study did not ask which interpretation the respondents would adopt, the opposite is also possible.  If their unambiguous interpretations correlated negatively with their policy preferences, then asking people whether a statute is ambiguous makes them less likely to consult their own views.  If so, then the old textualist argument may be right after all, and favor framing the question as whether the statute is ambiguous.

Full post as published by The University of Chicago Law School Faculty Blog on April 26, 2010 (boomark / email).