The Download of the Week is Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation by Ward Farnsworth, Dustin F. Guzior, and Anup Malani. Here is the 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.
Recommended & important.