Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation

65 Pages Posted: 1 Aug 2009 Last revised: 6 Aug 2009

Ward Farnsworth

University of Texas at Austin - School of Law

Dustin F. Guzior

Boston University School of Law

Anup Malani

University of Chicago - Law School; University of Chicago Pritzker School of Medicine; Resources for the Future; National Bureau of Economic Research (NBER)

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Date Written: July 31, 2009

Abstract

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 judge is uncertain about its meaning? Or is it a claim that ordinary readers of English, as a group, would disagree about what the text means? 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 asking respondents whether a statute is “ambiguous” in their own minds produces answers that are strongly biased by their policy preferences. But asking respondents whether the text would likely be read the same way by ordinary readers of English 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.

Keywords: statutory interpretation, empirical legal studies

JEL Classification: K19, K39

Suggested Citation

Farnsworth, Ward and Guzior, Dustin F. and Malani, Anup, Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation (July 31, 2009). The Journal of Legal Analysis, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1441860

Ward Farnsworth (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

Dustin F. Guzior

Boston University School of Law ( email )

Boston, MA

Anup Malani

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States
773-702-9602 (Phone)
773-702-0730 (Fax)

HOME PAGE: http://www.law.uchicago.edu/faculty/malani/

University of Chicago Pritzker School of Medicine

Chicago, IL 60637
United States

Resources for the Future

1616 P Street, NW
Washington, DC 20036
United States

National Bureau of Economic Research (NBER)

1050 Massachusetts Avenue
Cambridge, MA 02138
United States

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