Legal Theory Lexicon

Legal Theory Lexicon 054: Standards of Review

Introduction Law students begin to encounter the concept of a "standard of review" earlier in the first year. That's not surprising. First-year law students read appellate cases, and every appellate decision explicitly or implicitly includes a standard of appellate review--a rule that defines the relationship between the appellate and trial court. For example, the standard of appellate review on questions of law is "de novo."

Now, you may be wondering why "standards of review" are being discussed in the Legal Theory Lexicon. After all, this whole topic sounds specifically like doctrine, not theory. And that's right--standards of review are "doctrine," but that doesn't mean that they aren't also of theoretical interest. In this entry in the Legal Theory Lexicon series, we will take a look at standards of review from a theoretical perspective. We'll try to figure out whether the idea of a deferential standard of review makes sense, and if it does, how that idea might be explained and defended. We'll also take a whirlwind tour through a variety of contexts in which the idea of a "standard of review" plays a role. Here goes!

As always, the Legal Theory Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.  All the usual caveats apply, this is a very basic introduction that emphasizes theoretical issues--it is not intended as a review of the various legal doctrines that are discussed.

Is Deferential Review Possible? Let's start with the hard stuff. Many standards of review are described as "deferential." The abuse of discretion standard is supposedly "deferential," as is the "rational basis" standard and the "reasonable jury" standard.  Appellate courts are supposed to defer to the management decisions made by trial courts.  Courts are supposed to defer to the legislative decisions made by Congress.  Judges are supposed to defer to the factual judgments made by juries.

Superficially, this all looks quite straightforward.  After all, the idea of "deference" is familiar from ordinary language and life: for example, I might defer to a friend's judgment about wine or a colleague's judgments about golf--they know more than I do about those topics.  But in the context of law, it can get to be tricky.  To tease out the difficulty, let's distinguish between two different notions of deference, "deference to authority" and "epistemic deference."

By "deference to authority," I mean to refer to the practice of deciding that someone else's judgments or beliefs should substitute for your own.  If defer to my friend's choice of wine, I am simply letting her choose, giving her the authority to make the decision.  On the other hand, I might ask my friends advice about wine.  If she is more knowledgeable than am I, I might give her advice substantial weight in making my decision.  "I've never tried the Screaming Eagle Cabernet, but Dennis has and I have found his evaluations to be reliable in the past.  If he says it is overrated, then it probably is."  I am deferring to Dennis's experience and reliability in forming my own beliefs--because this form of deference is about knowledge, we can call it "epistemic deference."

OK, OK, but what did that all mean?  Here is the possibility that I would like to put on the table: it might be the case that all deference is at bottom either "deference to authority" or "epistemic deference," and hence that there is nothing "in between."  If that's right, it will have implications for the idea of a deferential "standard of review."  In particular, if this were true, then we might reach the conclusion that if there is any meaningful review at all, it must be nondeferential de novo review.  Let me be clear: I am not going to argue for that conclusion.  Instead, I am going to pose a challenge or offer a puzzle--I won't be reaching any conclusions, one way or the other.

Here's what we are going to do.  I'm going to give a brief and sweeping outline of various legal contexts in which the notion of a standard of review plays a role.  Then after we've looked at these contexts we'll return tot he deference problem.

Contexts  The phrase "standard of review" is used a variety of legal contexts.  Let's take a look at some of them.

• Judicial Review of Jury Decisions: Juries make decisions, but judges are required to review them in a variety of procedural contexts--motions for judgment as a matter of law (or judgment non obstante verdictum), motions for a new trial on the grounds that a jury's decision was contrary to the weight of the evidence, and so forth.  In this context, the conventional wisdom is that judge's must "defer" to the jury and uphold any decision that could have been reached by a "reasonable jury."
• Appellate Review of Trial Court Decisions: This is the most familiar context for thinking about "standards of review."  The conventional wisdom is that there are three.  The de novo standard applies to trial court decisions of law: appellate court's are not required to defer to these and may review them de novo (as if they were "new").  The clearly erroneous standard applies to findings of fact by a trial judge.  This is supposed to be a deferential standard; appellate judges are supposed to review factual findings for error, but to do this deferentially.  The abuse of discretion standard applies to discretionary or management decisions by trial court judges.  Again, this is supposed to be a deferential standard.  Even if the appellate court would have made the decision differently, it should not reverse unless that trial court's decision was an "abuse of discretion," something beyond "mere error."
• Judicial Review of Legislation: Yet another context is provided by judicial review of legislation, usually for constitutionality.  This is a huge topic, but we can simplify by focusing on two standards, both derived from doctrine developed in connection with the equal protection clause of the United States Constitution.  The "rational basis" standard is intended to be highly deferential--a statute subject to this standard should be upheld unless no rational legislature pursuing a legitimate objective could have believed that the statute would advance the objective, even very imperfectly.  The "strict scrutiny" standard, on the other hand, is not deferential at all.  In fact, the saying goes "strict in theory, fatal in fact."  In fact, the "strict scrutiny" standard is even "antideferential" rather than merely "neutral" as is the de novo standard of appellate review.
• Judicial Review of Administrative Agencies: The Administrative Procedures Act requires federal courts to uphold the actions of federal agencies if they are supported by "substantial evidence."  The famous "Chevron doctrine" requires federal courts to defer to an agencies interpretation of a statute, so long as that interpretation is "reasonable."  The Chevron doctrine seems to imply that administrative agencies should receive more deference on questions of law than trial courts receive under the de novo standard of appellate review.

The Deference Question Revisited  We are now in a position to think again about the question whether "deferential review" is possible and, if it is, what deference really means.  Some standards of review are simply not deferential at all--de novo appellate review of questions of law, for example.  Other standards of review might be interpreted as involving "deference to authority."  Under the Chevron doctrine, for example, we might say that administrative agencies have authority to interpret the statutes that govern them--although that authority may have "outer bounds" that are policed by the courts.  Yet other standards might be explained as "epistemic deference."  For example, the clearly erroneous rule may simply require appellate courts to give "epistemic deference" to the fact-finding advantages of trial court judges.

On the other hand, it might be argued that some standards of review seek a middle ground between "deference to authority" and "epistemic deference."  Perhaps, a jury can be reasonable, even though the trial judge knows the jury was wrong--if so, then the "reasonable jury" standard is not a matter of epistemic deference.  But trial judges are not required to defer entirely to the authority of the jury--the judge retains the power to set aside verdicts contrary to the weight of the evidence.  The hard question that remains is "what exactly is this "middle ground?"  How can you believe a jury is wrong but reasonable?  How can you decide that a given statute only serves the narrow economic advantage of a special interest group but also find that the legislature had a rational basis?

One more idea before we conclude.  It is tempting to think of the standards of review in terms of probabilities or degrees of confidence.  So we might way that complete deference requires that a decision be upheld even if the chance that one of its predicates is correct is zero (0.0).  A nondeferential standard permits the reviewing entity to reverse a decision so long as the probability that it is correct is less than fifty-fifty (0.5).  This leaves a middle ground--e.g., a standard that would uphold decisions unless there was a .25 chance they were correct (or any other real number great than 0.0 and less than 0.5).  It's worth thinking about this possibility, but for reasons I won't explain here, I am inclined to think that this model of appellate review cannot, in the end, be made to work.

Conclusion  Understanding the idea of a standard of review is fundamental to understanding legal doctrine.  And to really understand standards of review, you need to grasp the theory that grounds them.  The aim of this post has been to give you some basic ideas from which your own reflections can begin.

(Last movied on September 16, 2007)

Legal Theory Lexicon 053: It Takes A Theory To Beat A Theory

Introduction  "It takes a theory to beat a theory"--this is surely one of the top ten all-time comments uttered by law professors to one another in those ritual interactions that are called "faculty workshops" or "colloquia."  The first instance of the comment that I can find in the legal literature appears in an article by Richard Epstein [92 Yale Law Journal 1435 (1983)], and the some legal academics associate the comment with Professor Epstein, whose facility in workshops is legendary.

What does "It takes a theory to beat a theory" mean?  What is the point or purpose of making this comment in a debate about normative or positive legal theory?  Of course, the core idea is relatively straightforward.  One can't beat a theory just by nitpicking.  We go with the best theory we have, warts and all.  So if you want to beat a theory, you must show it is not the best theory we have, and the only way to do that is to produce a better theory.  Hence, it takes a theory to beat a theory.  Or to put it crudely, if we are playing "king of the hill," whoever is on top stays there until pushed off.

Most of the entries in the Legal Theory Lexicon series deal with some concept, theory, or idea that law students are likely to encounter in their first year of law school.  But this entry is a little different.  "It takes a theory to beat a theory" is not likely to be heard much in the classroom.  It's a "workshop comment" not a "class comment."  But in a way, that makes this idea all the important for law students, including first year law students, with an interest in legal theory.  And understanding this move and its counters is essential for anyone who plans a career in the legal academy.

The Aphorism and its Applications  Here is one of the most famous examples of the aphorism at work--although the exact words do not appear.  This is Justice Scalia, in his famous article, Originalism, the Lesser Evil:

Apart from the frailty of its theoretical underpinning, nonoriginalism confronts a practical difficulty reminiscent of the truism of elective politics that "You can't beat somebody with nobody."' It is not enough to demonstrate that the other fellow's candidate (originalism) is no good; one must also agree upon another candidate to replace him. Just as it is not very meaningful for a voter to vote "non-Reagan,"' it is not very helpful to tell a judge to be a "non-originalist."' If the law is to make any attempt at consistency and predictability, surely there must be general agreement not only that judges reject one exegetical approach (originalism), but that they adopt another. And it is hard to discern any emerging consensus among the nonoriginalists as to what this might be.

Here is another version of the argument--this time from George Stigler's 1982 Nobel Prize Lecture:

Nevertheless the economic theory of regulation is achieving a substantial scientific prosperity. Its findings with respect to both the operation and the origins of regulatory policies directed to particular industries (such as the securities markets, transportation, and occupational licensing) command a substantial support. To be sure, the explanatory triumphs have not been overwhelming, and indeed the theory itself is still relatively primitive. The main reason for the considerable acceptance of the approach is that fundamental rule of scientific combat: it takes a theory to beat a theory. No amount of scepticism about the fertility of a theory can deter its use unless the sceptic can point to another route by which the scientific problem of regulation can be studied successfully.

Variations  If you've been paying close attention, you will have noticed that Scalia and Stigler were making very different arguments--relying on different premises and with only a surface level similarity.  "It takes a theory to beat a theory"--is not a single move.  It's several different moves, each of which can nonetheless be expressed via the same aphorism.  Let's quickly catalog some of the variations:

--"It takes a practice to replace a practice."  This variation is at the root of Scalia's point.  You can't vote against a candidate; you must vote for someone.  You can't just stop interpreting the constitution if you reject originalism; it takes some other interpretive practice to substitute for originalism.

--"It takes a better explanatory theory to substitute for a theory that has even limited success."  This variation is at the root of Stigler's point.  The economic theory has some success; so it will continue as the "dominant paradigm" until something better comes along.

--"It takes a better normative theory to substitute for a normative theory that has plausible support."  Thus, one might say that it takes a better theory of justice to displace Rawls's theory.

And I'm sure there are many other variations.

Counter Moves  What are the countermoves to "It takes a theory to beat a theory."  They are legion, and many are contextual, but here are a few typical countermoves:

--Expose the hidden "presumption."  It takes a theory to beat a theory may assume that the theory in question must be "beaten" or it stands.  But that assumption requires a justification.  It must be argued there is some "presumption" in favor of the theory's validity.  What is the source of that presumption?  Why does this theory enjoy the presumption rather than a rival theory?  Sometimes these questions can't be answered.  Other times there are answers, but once they are articulated, they can be contested.

--It doesn't take a theory to beat an argument.  Even if it does take a theory to beat a theory, it doesn't take a theory to beat an argument.  Arguments fail if they are invalid or unsound.  Arguments are invalid if the conclusions don't flow from the premises.  Arguments are unsound if their premises are false.  So when someone says, "It takes a theory to beat a theory," you can reply, "Oh, you thought I was trying to beat a theory, but what I actually did was to beat an argument."

--Recharacterize the Status Quo.  Frequently, "it takes a theory to beat a theory," assumes that the theory to be beaten is, in some sense, the status quo--the current king of the hill, the way we are doing or thinking now.  But this is not necessarily the case.  Take the "originalism" example.  One might argue that "originalism" isn't the "king of the hill."  Rather, the status quo is eclecticism--a little precedent, a little originalism, a little instrumentalism, etc.  So if the case for originalism is inadequate, the presumption is for the status quo--not originalism.  In other words, poking holes may be enough.  Once the theory in question is no longer the status quo, the question becomes is the new theory demonstrably better than what we've got now.

--Deny the Theory Assumption.  "It takes a theory to beat a theory" assumes that the issue at hand is one which is properly addressed by a theory.  Let's call that, "the theory assumption."  But the theory assumption can itself be contested.  Here's a marvelous example of "denying the theory assumption," from Dan Farber, himself famous for this move:

The last ditch defense of the rational choice theory is to insist that it takes a theory to beat a theory, and that the behavioralists have only assembled a collection of empirical regularities without any unifying theory. The behavioralists indignantly respond that they do have a theory, although an incomplete one. The assumption on both sides is apparently that the sine qua non of social science is having a unified predictive theory. But perhaps this is merely another symptom of economics' famous case of "physics envy." Physics presents a breathtaking example of mathematical elegance combined with fantastically accurate predictions. But taking physics as the paradigm of science may be a mistake. Today's great success story among the sciences may well be biology. Biology does have a central paradigm (evolution) and an understanding of its molecular basis. But organisms, because they are the products of evolution rather than design, are extremely complex, and no one seems to think that their features can be predicted in any detail on the basis of a deductive theory.

(Daniel A. Farber, Toward a New Legal Realism, 68 U. Chi. L. Rev. 279, 295 (2001))

There are lot's of ways of doing this.  Here's one way of making the move: "Hmm.  You seem to be assuming that we need a theory here.  I'm puzzled.  Why would you assume that?"  Stressing the words in italics.  This move puts the burden on the maker of the "It takes a theory to beat a theory" move to justify the theory assumption--and as a practical matter, it also buys you time.

--Go Pragmatic.  This is a variation of denying the theory assumption.  When someone asks for a theory, you can reply that the subject at hand requires a "contextualist" and "pragmatic" analysis.  As the scare quotes indicate, I'm not very fond of this move.

--Go Metatheoretical.  This move embraces the notion that it takes a theory to replace a theory, but denies that the way that happens is through direct confrontation.  The idea is that the way we replace theories is by accumulating the data points the theory can't handle.  Here's a nice example of this move from Tom Ulen:

One frequently hears it said that "it takes a theory to beat a theory." Those who invoke that view are typically doing so in order to justify maintaining the rational choice paradigm until some well-articulated theory comes along to replace it. That is not, however, how scientific advances typically occur. Rather, anomalies arise and are either explained within an amended paradigm or serve as observations that make a case for another paradigm (as yet undefined).

(Thomas S. Ulen, A NOBEL PRIZE IN LEGAL SCIENCE: THEORY, EMPIRICAL WORK, AND THE SCIENTIFIC METHOD IN THE STUDY OF LAW2002 U. Ill. L. Rev. 875, 887, n. 47)

--I've Got a Theory.  Of course, this move is especially impressive in the context of a workshop.  Your paper makes a critical or destructive point.  Someone in the audience goes "It takes a theory to beat a theory."  And you go, "Great point.  I've got a theory and here it is."  You then get 5 minutes of uninterrupted theory exposition, and, of course, no one at the workshop has heard your theory before, and hence, no one has had an opportunity to prepare objections.

--It Takes a Theory to Beat a Theory, but you have no Theory.  This is a variation of Lloyd Bentsen's famous, "Senator, you are no Jack Kennedy."  The idea is this: "It takes a theory to beat a theory," assumes that we have a theory of X on the table.  So one effective counter is an argument that there is no "theory of x" to replace.  One way to do this is to set out a list of criteria, C1, C2, C3 . . . Cn, that must be fulfilled if a given cluster of ideas (I1, I2, I3, . . . In) is to count as a theory, T, of a subject, X.  You then argue that the view on the table is not a true theory, because it fails one or more of the criteria.

A variation on this move is "It doesn't take a theory to beat a really bad theory."  If your objection to a theory makes it clear that the theory cannot be correct, then it doesn't take theory to beat a theory.  Or to continue the metaphor, "You don't have to become the king of the hill to knock someone down."

Undoubtedly, there are many other standard countermoves and numerous others that are relevant to particular contexts.  I hope this post gets you started.

Conclusion  "It takes a theory to beat a theory."  Or does it?  I hope this Lexicon installment has given you a taste of this famous move and some of the replies.  And I also hope that it has provided some of the flavor of the intellectual atmosphere of faculty workshops and colloquia.  As always, the Lexicon provides only a simplified (and all too often simplistic) treatment of a subject that deserves an extended discussion.

Links

Adam Kolber, Theory v. Theory (March 16, 2006)

James E. Ryan, Does It Take a Theory? Originalism, Active Liberty and Minimalism (January 27, 2006)

Lawrence Solum, It Takes a Theory to Beat a Theory (September 12, 2002)

(Last modified on September 9, 2007.)

Legal Theory Lexicon 052: Property Rules and Liability Rules

Introduction One of the most famous distinctions in contemporary legal theory was made popular by Guido Calabresi & A. Douglas Melamed s famous article, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral.  The core idea is simple.  Legal rules that create private causes of actions (or claims for relief) can be sorted into two kinds.  Kind one consists of rules that entitle the claimant to an injunction.  Kind two consists of rules that entitle the claimant to damages.  The first kind of rule is associated with property rights--hence, we can call the first kind "property rules."  The second kind of rule is associated with tort liability or contractual liability--hence, we can call the second kind "liability rules.  The distinction between property rules and liability rules is important, because injunctions and damages have different effects on future behavior and on negotiated settlements to claims.

This post in the Legal Theory Lexicon Series is aimed at law students--especially first-year law students--with an interest in legal theory.  As always, this is a very short introduction to a complex topic.  I've provided references for further reading and a deeper understanding.

Calabresi & Melamed's Famous Formulation "Another View of the Cathedral" is one of those articles that every law student should read.  But to get us started, let's quote the famous passages from near the start of the article where the distinction between property rules and liability rules is introduced:

An entitlement is protected by a property rule to the extent that someone who wishes to remove the entitlement from its holder must buy it from him in a voluntary transaction in which the value of the entitlement is agreed upon by the seller. It is the form of entitlement which gives rise to the least amount of state intervention: once the original entitlement is decided upon, the state does not try to decide its value.  It lets each of the parties say how much the entitlement is worth to him, and gives the seller a veto if the buyer does not offer enough. Property rules involve a collective decision as to who is to be given an initial entitlement but not as to the value of the entitlement.

Whenever someone may destroy the initial entitlement if he is willing to pay an objectively determined value for it, an entitlement is protected by a liability rule. This value may be what it is thought the original holder of the entitlement would have sold it for. But the holder's complaint that he would have demanded more will not avail him once the objectively determined value is set. Obviously, liability rules involve an additional stage of state intervention: not only are entitlements protected, but their transfer or destruction is allowed on the basis of a value determined by some organ of the state rather than by the parties themselves. An entitlement is inalienable to the extent that its transfer is not permitted between a willing buyer and a willing seller. The state intervenes not only to determine who is initially entitled and to determine the compensation that must be paid if the entitlement is taken or destroyed, but also to forbid its sale under some or all circumstances. Inalienability rules are thus quite different from property and liability rules. Unlike those rules, rules of inalienability not only "protect" the entitlement; they may also be viewed as limiting or regulating the grant of the entitlement itself.

There is a lot packed into this short package.  First, we get the basic distinction between enforcement by injunction and enforcement by liability for damages.  Second, we get the distinction between rights that are alienable and those which cannot be bought and sold and hence are "inalienable."  Third, we get an argument that alienable rights that can be enforced by injunctions require less state intervention than do inalienable rights that are only enforceable by damage awards.  These three ideas were the conceptual core of Calabresi and Melamed's distinction between property rules and liability rules.

Mixed Rules  Even if you have never encountered the distinction between property rules and liability rules before, you probably have already thought to yourself that the world is not quite as black and white as the distinction implies.  The same underlying "primary right"--such as the right to security of property--may be enforced by both injunction and damages and involve both alienable and inalienable aspects.  That is, there are "mixed rules" as Calabresi and Melamed themselves noted:

It should be clear that most entitlements to most goods are mixed. Taney's house may be protected by a property rule in situations where Marshall wishes to purchase it, by a liability rule where the government decides to take it by eminent domain, and by a rule of inalienability in situations where Taney is drunk or incompetent.

Choosing Between Property Rules and Liability Rules  Why should the law choose property rules for some situations and liability rules for others?  That's a very large and complex question.  Here are some of considerations that bear on an answer--recognizing that these are only starting points:

The Possibility of Bargaining--It might be argued that property rules are better suited to situations where the parties can bargain over the transfer of rights.  So the possessory interest in real estate or chattels might be protected by property rights, because the transfer of possession is something over which the parties can bargain.  An injunction against involuntary transfer forces the parties to agree on terms for a voluntary transfer.  On the other hand, it might be argued that liability rules are better suited to situations in which bargaining is impossible (or to be more precise, very costly).  For example, it would be difficult to bargain over an automobile accident--the parties may be strangers, the accident is unanticipated, and so forth.  In that situation, a damage award rather than an injunction seems like the only feasible mechanism for protecting the right.

Existence or Measurement of Damages--Sometimes it is very difficult to measure damages.  For example, in copyright law, it may be difficult to prove that my copying of portions of you book had the consequence of hurting your sales.  (It's possible my copying even helped your sales.)  When damages either don't exist or can't be measured, then liability rules may be ineffective.  But if the copyright holder--to continue the example--has the right to an injunction, this will force the infringer to pay for the right to continue the infringing activity.

Administrative Costs--Liability rules require the system to measure damages and that may be costly.  Evidence on the extent of damages must be gathered, processed, and evaluated by a finder of fact.  Property rules do not involve these costs.  This facto generally favors property rules over liability rules.

Of course, this is a partial and incomplete list.  But these examples illustrate the kinds of considerations that might favor a property rule or a liability rule as the solution to a particular legal problem.

Conclusion The distinction between property rules and liability rules is fundamental to private law.  As you study contracts, torts, and property, it is very useful to ask yourself whether a particular legal doctrine or cause of action involves a liability rule, a property rule, or a mixed rule.  Once you have the answer to that question, the next inquiry is "why?"  What justifications can be offered for the law's choice of a property rule over a liability rule, or vice versa.  If you ask these questions systematically in your study of private law, you will be well on your way to a deeper and more sophisticated understanding of these building block subjects.

References

Ian Ayres & J.M. Balkin, Legal Entitements as Auctions: Property Rules, Liability Rules, and Beyond, 106 Yale L.J. 703 (1996).

Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972).

Louis Kaplow & Steven Shavell, Property Rules versus Liability Rules: An Economic Analysis, 109 Harv. L. Rev. 713 (1996).

(This entry was last revised on September 2, 2007.)

Legal Theory Lexicon 051: Vagueness and Ambiguity

Introduction  This week the Legal Theory Lexicon entry focuses on "ambiguity" and "vagueness"--two important concepts for the theory of interpretation.  Some legal texts are ambiguous--they can have two or more distinct meanings.  And some legal texts are vague--they use concepts that have indefinite application to particular cases.  And some legal texts are both vague and ambiguous--they have multiple meanings, some of which have indefinite applications.  Because "vagueness" and "ambiguity" are basic concepts in the theory of interpretation, its important to master each of them and to understand the difference between them.

As always, this entry in the Legal Theory Lexicon is aimed at law students, especially first year law students, with an interest in legal theory.

Vagueness  What does it mean to say that a concept, term, or phrase is vague?  Let's start with some examples and then try for an elucidation of the concept.  "Tall" is a good example of a vague concept.  Some humans are definitely not tall--Danny DeVito, for example.  Others definitely are tall--Shaquille O'Neal, for one.  But the term "tall" is vague.  5'11 is almost definitely tall for a woman in the United Sates, but might be a borderline case for men.  "Tall" is not the sort of quality for which there are definite criteria that sort the world into "tall" things and "not tall" things.  In other words, "tall" is vague.

There are lot's of terms that are like tall: short, strong, weak, beautiful, ugly, heavy, light, warm, and cool--all of these are terms that seem to have borderline cases.  And that is one way that we might define vagueness.  A term is vague, we might say, if and only if it has borderline cases.  A term is not vague just in case it has no borderline cases.

As you might guess, the fact of vagueness creates a variety of issues in the philosophy of language.  Is vagueness built into the fabric of the universe?  Or is vagueness merely a feature of the imprecision of human language?  Is vagueness a property of things?  Or is it a property of our knowledge of things?  We won't worry about these deep questions.  For the purposes of this rough and ready introduction, it is sufficient simply to see that there are such problems and that a philosophical theory of vagueness should propose to answers to them or show that they aren't true problems at all.

Ambiguity  What about "ambiguity"?  A concept, term, or phrase is ambiguous if it has more than one meaning.  Take "cool" for example.  One meaning of "cool" has to do with temperature, and in this sense, "cool" contrasts with "warm," "cold," and "hot."  Another meaning of "cool" has to do with fashion and social attractiveness.  And there are other senses of cool as well, as in, he kept his cool in a very pressured situation.

In a particular context, the meaning of an ambiguous term may be clear.  With just a bit more context, the sentence "He's one cool dude" is likely to refer to social attractiveness and not temperature.  But in some contexts, the ambiguity may be difficult to resolve: "The mojito is a cool drink" could refer either to the fact that mojitos are served chilled or to the fact that mojitos are fashionable and popular among some social groups.

And this last example, "cool" can be used to illustrate the fact that the same term can be both vague and ambiguous in the same context.  If I say, "Bring me a cool drink!", my utterance may be both ambiguous--do I mean fashionable or coldish?--and vague--how far below room temperature is "cool" or are mojitos still "cool" or are they "out of style"?

Interpretation of Vague or Ambiguous Texts  Now that we have a basic grasp of vagueness and ambiguity, we are in a position to see that each of these two concepts has a role to play in a theory of the interpretation of legal texts.

Many legal texts are vague.  In fact, most law students become very familiar with a variety of vague terms early in their law school careers.  Take "reasonable"--was the tort defendant's conduct "reasonable" under the circumstances?  There will be clear cases of unreasonable conduct: driving 150 mph in a residential area.  But there will also be borderline cases.  Was it reasonable to drive at 55 mph in a light fog?

Some legal language general, abstract, and vague.  For example, the phrase "equal protection" in the 14th amendment of the United States Constitution may refer to a very general and abstract idea of equality.  Given this generality and abstraction, it may be that the "borderline" cases seem to make up the whole of equal protection doctrine.  What would count as a clear example of "equal" or of "unequal"?  In a common law system, general and abstract language may be translated into relatively more particular and concrete rules through case-by-case adjudication.

Vagueness is ubiquitous in the law.  Ambiguity is a bit less common, because many potentially ambiguous terms or phrases are disambiguated by context.  "Seizure" can refer to a physical taking or it can refer to a medical symptom, but in the Fourth Amendment of the United States Constitution, it is clear that the correct meaning is the former rather than the latter.

Conclusion "Vagueness" and "ambiguity" are important concepts in the theory of legal interpretation generally, and as a consequence, they are important to constitutional theory and the theory of statutory interpretation.  I hope this Lexicon entry has clarified the distinction between these two concepts.

Links

Stanford Encyclopedia of Philosophy Article on Vagueness

Wikipedia Article on Vagueness

Vagueness in Law by Timothy A. O. Endicott

(This entry was last revised on August 26, 2007.)