Ward Farnsworth, Dustin F. Guzior, and Anup Malani (Boston University School of Law, and University of Chicago - Law School) have posted Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation (Forthcoming, The Journal of Legal Analysis) on SSRN. 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. For an introduction to the philosophical distinction between vagueness and ambiguity, see Legal Theory Lexicon 051: Vagueness and Ambiguity.