Misreading like a Lawyer: Cognitive Bias in Statutory Interpretation

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INTRODUCTION   I. TROUBLEMAKING VERBS: OPAQUE SENTENCES AND HOW TO SPOT THEM      A. Transparent vs. Opaque Sentences      B. Two Ways to Read Opaque Sentences: De Re and De Dicto      C. Detecting De Dicto and De Re Readings  II. EXAMPLES OF MISREADING      A. Fraud by Impersonation      B. Obstruction of Justice      C. Genocide         1. Interpreting Genocide in the Rwanda Tribunal         2. De Re and De Dicto Readings of Genocide      D. Disability Rights III. WHY DO LAWYERS MISREAD?      A. Clues from Psychology         1. Evidence from Psycholinguistics: Acquiring Opacity         2. Explanations from Theories of Cognitive Bias      B. The Role of Law in Propagating Error         1. Tools Lawyers Lack         2. Tools Lawyers Use that Do Not Work      C. A Synthesized Account of Misreading  IV. WHAT CAN WE DO ABOUT MISREADING?      A. Organizing a Paradigm of Readings         1. De Re Only         2. De Dicto Only         3. De Re or De Dicto         4. De Re and De Dicto      B. Traditional Approaches: Drafting and Defaults?      C. Innovative Interventions: Technology and a New Heuristic CONCLUSION 


During just three months in 1994, perpetrators from Rwanda's Hutu majority population deliberately and brutally massacred an estimated 800,000 minority Tutsis in a campaign of violence that was referred to around the world as genocide. Nevertheless, genocide prosecutions in the International Criminal Tribunal for Rwanda repeatedly stumbled over the question of whether the defendants acted "with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such," as conviction under the Genocide Convention requires. The legal issue was not whether the perpetrators intended to destroy the Tutsis--that much was clear. Rather, it was whether the Tutsis were in fact ancestrally or culturally distinct enough to be protected as an ethnic or racial group. Many jurists and commentators still maintain that whatever the Hutus' intent, if the Tutsis could not be neatly categorized as a race or ethnicity, the Genocide Convention could not apply.

In the fall of 2001, the accounting firm Arthur Andersen directed a large-scale destruction of documents regarding its client Enron. Expecting a federal subpoena of records as a wave of accounting scandals unfolded, the firm urged its employees to begin shredding papers on October 10, just weeks before the SEC began an official investigation into Enron. (1) The shredding ceased abruptly on November 9th, immediately on the heels of the SEC's subpoena. (2) In 2005, the Supreme Court reversed Arthur Andersen's conviction for "knowingly ... corruptly persuad[ing] another ... with intent to ... induce any person to ... withhold a record, document, or other object, from an official proceeding." (3) The conviction was defective in part because the jury instructions did not make clear that the defendant's actions had to be connected to a particular official proceeding that the defendant had in mind; in this case, no such proceeding had been initiated at the time of the shredding. (4) The ruling followed a line of obstruction of justice decisions dating back to the nineteenth century (5) in holding that, if in its frenzy of paper shredding the defendant firm was not specific about the particular official proceeding to be obstructed, the statute could not have been violated.

In 1868, an English court considered the case of Whiteley v. Chappell, (6) in which a man who had voted in the name of his deceased neighbor was prosecuted for having fraudulently impersonated a "person entitled to vote." (7) The court acquitted him, albeit reluctantly. (8) There had been voter fraud by impersonation, certainly. But the court fixated on the object of the impersonation and concluded that because a dead person could not vote, the defendant had not impersonated a "person entitled to vote." The court attributed the mismatch between this result and the evident purpose of the statute to an oversight of the drafters: "The legislature has not used words wide enough to make the personation of a dead person an offence. …