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Copyright (c) 2010 The President & Fellows of Harvard College.
The Journal of Legal Analysis

ARTICLE: AMBIGUITY ABOUT AMBIGUITY: AN EMPIRICAL INQUIRY INTO LEGAL INTERPRETATION

Spring, 2010

The Journal of Legal Analysis

2 J. of Legal Analysis 257

Author

Ward Farnsworth 1, Dustin F. Guzior 2, Anup Malani 3

Excerpt

1. INTRODUCTION

Determinations of ambiguity are the linchpin of statutory interpretation. The existence of ambiguity creates the need for interpretation in the first place, of course, but it does much else besides. For example, courts often treat ambiguity as a kind of gateway consideration when they interpret a statute. If the statute is ambiguous, the judge might then become interested in sources of guidance, such as legislative history, that wouldn't otherwise be considered. 4 Or ambiguity might cause a judge to defer to an agency's view of the statute, as under the Chevron doctrine. 5 Or ambiguity might cause a judge to resort to a canon of construction such as the rule of lenity, 6 or the doctrine that courts should prefer interpretations of ambiguous statutes that avoid difficult constitutional issues, 7 or the rule that ambiguous statutes will be interpreted to avoid conflict with foreign law, 8 or many others. Ambiguity also serves as an occasion for judges to consult their own views of policy, whether openly, quietly, or unconsciously. 9

Most of the literature on legal interpretation talks about the points just mentioned: what judges should do after they find ambiguity. In this Article we propose to take a different approach in two respects. First, our concern is with anterior questions, starting with what ambiguity is; for the word itself is ambiguous. To say that a statute is ambiguous could be a claim that ordinary readers of English would disagree about its ...
 
 
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