Posted by Orin Kerr:
Cool Forthcoming Article:
http://volokh.com/archives/archive_2009_08_09-2009_08_15.shtml#1249941318
[1]Ambiguity About Ambiguity: An Empirical Inquiry into Legal
Interpretation, by Ward Farnsworth, Dustin F. Guzior, and Anup Malani.
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.
The article goes to a lot of important issues of how personal
preferences influence legal interpretation. Interesting stuff. (Hat
tip: [2]Larry Solum)
References
1. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1441860&download=yes
2.
http://lsolum.typepad.com/legaltheory/2009/08/farnsworth-guzior-and-malani-on-legal-interpretation.html
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