Thursday, February 16, 2012

Ambiguity's Ambiguities

My administrative law class recently covered Chevron v. Natural Resources Defense Council.  Our casebook (Funk, Shapiro, and Weaver, which I highly recommend) uses problems, and at the end of the Chevron problem, I always ask how many students think the government should prevail and how many would support the petitioners.  Most years the split is about fifty-fifty.  I find that really interesting.

In part, that split indicates that the casebook authors chose a good problem.  But I’ve found similar splits when Chevron questions come up in other classes, and I think the persistent disagreements indicate just how much normal people disagree about what counts as ambiguous.  That’s not exactly an original observation, but it is an important, and sobering, one.  So much of legal training is based on the premise that if you write carefully, people will understand your meaning and be persuaded by your arguments.  Yet every year, my informal, non-rigorous studies of my own classes call even the first part of that premise into question.  They remind me that just agreeing about the boundaries of ambiguity, let alone the meaning of language, can be a hard thing to do.

These little exercises also raise intriguing questions about factors affecting perceptions of ambiguity.  I wonder if the disparaties of perception among my students are largely random, or if there are predictable controlling variables.  Political ideology clearly does seem relevant, but what else might matter?  Are there personality traits that correspond to a willingness to perceive ambiguity or clarity?   Obviously a threshold level of intelligence is necessary to perceive clarity in anything, but is there a point at which smarter people (however you choose to measure that) start to perceive more ambiguity?  Does legal education change people’s perceptions of ambiguity?  All these questions might better be answered (maybe they have been answered) by linguists than lawyers, but they also seem to have implications for the ways we teach and practice law.

-Dave Owen

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