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Academic

: The University of Chicago Law School Faculty Blog

Ambiguity: Further reply to Posner

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Like Judge Posner, I doubt that semantic arguments do the work that they appear to do in judicial opinions. But unlike him, I don't quite think the issue is a lack of candor. I expect that the Justices who decided the gun use case could have passed a polygraph test in which they said the semantic arguments were a substantial basis for their decisions. But sometimes, and probably here, the legal arguments in a case are pliable enough to inadvertently express policy preferences rather than constrain them, even if the holders of the preferences do not understand this to be happening. Our studies show this effect in a more controlled and stylized environment. People told to put their preferences aside and just worry about semantics end up taking semantic positions that advance their preferences.

I suspect that Judge Posner makes it a question of candor because he himself has so little use for arguments about semantics (so it would show a lack of candor for him to make them). But I think many other judges have not yet arrived at his conclusions, and that they take conventional legal arguments, including arguments about semantics, more seriously -- even if, as we mean to show, those arguments often end up carrying the water for policy preferences after all.

We do suggest a way to make judgments about language that are less likely to be infected by policy preferences. If nobody cares about doing that, and all the talk to the contrary in judicial opinions is a smoke screen, then this part of our study, like much other legal scholarship, would indeed be a waste of time. But we think some judges still like the idea of doing it. Judge Easterbrook says he is among them; perhaps Judge Posner isn't. That's an interesting dispute (if it really is a dispute), but our project is not meant to try to settle it.

Full post as published by The University of Chicago Law School Faculty Blog on May 02, 2010 (boomark / email).