Statutes with Multiple Personality Disorders: The Value of Ambiguity in Statutory Design and Interpretation

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Ambiguity serves a legislative purpose. When legislators perceive a need to compromise they can, among other strategies, "obscur[e] the particular meaning of a statute, allowing different legislators to read the obscured provisions the way they wish." (1) Legislative ambiguity reaches its peak when a statute is so elegantly crafted that it credibly supports multiple inconsistent interpretations by legislators and judges. Legislators with opposing views can then claim that they have prevailed in the legislative arena, and, as long as courts continue to issue conflicting interpretations, these competing claims of legislative victory remain credible.

Formal legal doctrine, in contrast, frames legislative ambiguity as a problem to be solved rather than an opportunity to be exploited. Toward that end, judges and scholars have developed an arsenal of interpretive techniques that are designed to extract functional meaning from ambiguous statutory text and conflicting legislative history. (2) The Supreme Court regularly addresses the question of statutory interpretation in its opinions and offers guidance as to appropriate rules of construction. (3) If these interpretive techniques are effective, then different judges faced with the challenge of construing a fixed piece of legislative text and history should produce consistent interpretations.

Legislators, staffers, and lobbyists are, however, well aware of the judiciary's interpretive technology. (4) If the judiciary can predictably ascribe a consistent meaning to a record that legislators intend to be ambiguous, then ambiguity's value as a tool of compromise is lost. Legislators therefore have an incentive to develop a technology of ambiguity that can frustrate the judiciary's most effective interpretive methods. (5)

Judges are similarly aware of legislative techniques that are used to frustrate the judicial imputation of clear meaning. (6) Judges can respond by strengthening their own interpretive technology in order to frustrate the legislature's efforts to obscure. (7) Not all scholars are persuaded, however, that the judiciary is as committed to interpretive consistency as the formal canon suggests. (8) A judicial preference for flexible standards of statutory interpretation over more rigid rules can, for example, be viewed as consistent with a preference for discretion. (9) More broadly, judges who value the ability to exercise discretion would also rationally prefer ambiguous statutory language. (10) Indeed, there is evidence that judges also practice conscious ambiguity as part of the art of judging when courts rely on vague language or avoid critical issues in order to craft decisions that maintain judicial coalitions. (11) The Supreme Court's strongest proponent of precision in statutory construction, Justice Scalia, has gone so far as to observe that the high court has the ability to write an opinion "so that it says almost nothing," if that suits the Court's purpose. (12)

The legislative and judicial branches thus appear to be locked in an interpretive battle. The legislature has a clear incentive to value ambiguity because it facilitates compromise. The judiciary has crafted an array of interpretive rules designed to extract consistent meaning from intentionally ambiguous statutory utterances. There is debate, however, over the strength of the judiciary's incentive to apply rigorously its own interpretive technology. The result of this conflict between the branches is a rational expectations equilibrium in which each branch's strategy must take the other's into account. (13)

Which force prevails? There is no theoretical reason to expect that the legislative ability to obscure will systematically defeat the judicial capacity to interpret, or vice versa. The question is essentially empirical. It is also historically and textually contingent. Accordingly, there may be periods during which, with respect to specific interpretive issues, one branch's technology more completely dominates the other, only to find the situation reversed during other periods. …