Interpretation Of Statutes Assignment Towards the fulfillment of III

Continuous Assessment on

MISREADING LIKE A LAWYER: COGNITIVE BIAS

IN STATUTORY INTERPRETATION
By Jill C. Anderson
Submitted To:

Submitted by:

Mr. Ajay Kumar Sharma

Niharika Choudhary

Faculty of Law

BBA. LLB

National Law University,

Roll No:1120, Section A

Jodhpur

National Law University,

Jodhpur
Submitted On: 8th August , 2014

INTRODUCTION
In her article, Misreading Like a Lawyer: Cognitive Bias in Statutory Interpretation, Professor
Jill Anderson explains an intricacy of sentence meaning that is well known by linguists,
generally handled adequately by most of us in normal conversation, but apparently
misunderstood and badly handled by lawyers and judges. The mismatch between the intention of
the legislature and the interpretation of statue is often attributed to the oversight of the drafters .
But often these disparities are a product of the same phenomenon misreading like a lawyer. It
is notable that the general methods of statutory interpretation are not themselves regulated by the
legislature, but have been developed by the judges. They are not, as is often claimed, the result of
careless drafting by legislators or flat-footed literalism by judges. Rather, they arise from the way
virtually all legal actors advocates, judges, scholars, and legislators routinely botch the
interpretation of a certain class of sentences. Words in a statue are first to be understood in their
natural, popluar and ordinary sense but they at times appear unable even to make the text mean
what it most naturally should mean.
The author further concentrates on Opaque Construction. The misreading in question is based
on what linguists call opaque constructions: texts whose structural ambiguity creates
alternative readings. These alternative readings are generally known (as Anderson points out) as
de re and de dicto interpretations. As the article clearly explains, opaque constructions
differ from other sentences by exhibiting existence neutrality, the availability of nonspecific
readings, and substitution resistance. Opaque verbs tend to include those that speak of
hypothetical states of affairs or mental states (for example, intending, promising and
believing). Anderson asserts that the problem of misreading legal texts that contain opaque
verbs is unrelated to conventional disputes between those who favor textualism in statutory
interpretation and those who favor purposive interpretations. Andreson further identifies that the
textualism vs. purposivism debate is irrelevant to the linguistic difficulties as these debates
address how to choose between contending meanings of statutory text in order to decide what the
law is or ought to be but .In doing so, they make a crucial but flawed assumption: they take it for
granted that all reasonable literal readings of a given text will be readily apparent to lawyers, and
therefore on the table, in any dispute over interpretation.

PART I: TROUBLEMAKING VERBS: OPAQUE SENTENCES AND HOW TO SPOT

THEM
The term Opaque context or Opaque Construction are used of a certain general class of
sentence forms with characteristic logical properties. The characteristic manifestation of Opacity
is the variable validity of two inference rules- - Existential generalization and Subtitutivity of
Identicals. Traditionally it has been assumed that these two inferences go hand in hand ; an
opaque construction has one interpretation to which both the rules apply , and another
interpretation to which neither does. Anderson emphasizes on the need to understand what sets
opaque construction apart. He draws a distinction between opaque construction and transparent
construction. The objects of transparent verbs exist while there is no such requirement for the
objects of opaque verbs. In transparent construction we can substitute terms that are equivalent to
the object of the sentence without changing the sentence is true or not. However in opaque
construction such substitution alters the veracity of the sentence. Anderson gives example of the
word president. In a transparent Context it can be substituted as Barack Obama. But in
Opaque Construction such substitution any alter the intention of the speaker as many people may
wish they were the President without necessarily wishing they were Barack Obama. Andreson
asserts that lawyers have so far attempted to apply ordinary rules of interpretation to such kinds
of opaque sentence can have reversed implications in a far reaching world. Also the distributive
property holds good in transparent context only and not in opaque context i.e., in a transparent
context we can break the disjuncts and test each simpler sentence one at a time but not in opaque
sentences. Broadly and abstractly speaking, transparent constructions describe states of affairs in
the actual world. Opaque constructions, on the other hand, describe states of affairs mediated
through other hypothetical states, often mental states. As a result, their truth or falsity cannot be
determined simply by sizing up the sorts of actual-world facts we rely on to decide if ordinary
sentences are true or false.
WAYS TO READ OPAQUE SENTENCES:
Anderson has identified two ways to read Opaque Sentence:
De re: About the thing . In such kind of interpretation we relate to the properties of things
mentioned in an assertion or expression, rather than to the assertion or expression itself.
De dicto: about what is said relating to the form of an assertion or expression itself, rather than
any property of a thing it refers to.

The distinction between these two could be best understood by context of thought, a context of
desire, and a context of modality.
In the context of thought, the distinction helps us explain how people can hold seemingly selfcontradicting beliefs. Context of desire is when a statement tells an unspecified desire. One way
to interpret is the desire of the Feature or trait of the object and other is to look at the desire of
the object of which its reference has been made to its feature. In modal logic the distinction
between de dicto and de re is one of scope. In de dicto claims, any quantifiers are within the
scope of the modal operator, whereas in de re claims the modal operator falls within the scope of
the quantifier
Andresen asserts that distinction between the De re and de dicto is of great significance as the
de dicto/de re distinction operates as a form of structural ambiguity at the level of the sentence:
the difference in meaning is located not in the definitions of individual words, but in the logical
ways those words can combine to build larger units of meaning and lawyers often confound these
two terms when interpreting statutes. A misreading or Overlooking of De dicto/ De re sentences
cannot just amount to misapplication of statute but can have reverse consequences as well.
PART II: EXAMPLES OF MISREADING
Part II contemplates two objectives. First emphasizes on the failure of the legal actors to clearly
recognize the ambiguities arising in the opaque sentences and Second emphasizes on diagnosis
of the problem as faulty-drafting meets- literal-reading.
The author makes a reference to the case of Whiteley v. Chappell, courts analyzed an opaque
sentence as though it were transparent. The court scrutinized this object as a factual matter to
determine whether it matched the criteria for a statutory violation. Importantly, Court did not
made any attempt to acknowledge alternative readings, which strongly suggests that they thought
the text was unambiguous. Andreson paraphrased the two readings of the offense of
personating any person entitled to vote this way: de re: pretending to be some particular
individual, who is in fact entitled to vote de dicto: pretending to belong in the category entitled
to vote. Each characterization is literally true and on the very same facts, false depending
solely on whether one reads it de re or de dicto. If the law is to be taken at its word, then the
impersonator must be acquitted. And when materials on legal reasoning mention the case, they
tend to be at once derisive of the courts literalism and sympathetic to its dilemma, namely, the
supposed mismatch between the drafters intent and the language they drafted i.e., the mens or

Sentenia Legis. The problem of interpretation is a problem of meaning of words and their
effectiveness as medium of expression to communicate a particular thought.
For administration of justice reference has been made to the case of Pettibone v United States.
The statute in question was the predecessor statute to the current omnibus clause, with identical
operative language that prohibited endeavoring to obstruct the due administration of justice. As
it happens, a federal court had issued a restraining order and injunction prohibiting interference
with the mine, but there was no evidence that the defendants were aware of the order or even the
suit. The Supreme Court reversed their convictions, holding that, without service of process or
knowledge or notice or information of the pendency of proceedings, a violation cannot be made
out. Thus far in its reasoning on the facts of Pettibone, the Court was on solid ground in finding
that the mens rea element was lacking. The miners had not met the statutes terms on either its de
re or de dicto interpretation.
Third example has been made regarding the definition of Genocide. Under the genocide
convention, crime of genocide has been defined as to have acted with intent to destroy, in whole
or in part, a national, ethnical, racial or religious group, as such. But the ambiguity arises when
a crime of same gravity is committed against the category of people like Tutsi and Hutu which
originated in a precolonial socioeconomic hierarchy among Rwandas main identity groups, and
these categories were later racialized and reified. Tutsis are not racially distinct from the Hutu
majority nor do they have different national identities. They do not practice a different religion
from Hutus, and the two groups shared language and culture blur any distinction by ethnicity. So
the question that arose when the crime was committed against the group of Tutsi is that Is this
group in fact a racial, ethnic, religious, or national group?. One may answer in negative if one
asserts to literal reading of the conventions text. But again the fine difference between Literal
Reading and Literal Construction comes into play. Literal Construction also has an element of
which says that attention has to be paid to what has been said as also what has not been said.
Soon the ICTR panel revisited the meaning of the intent provision itself. The intention of the
legislature thus assimilates two aspects: In one aspect it carries the concept of meaning i.e.,
what the words mean and in another aspect , it conveys the concept of purpose and object or
the reason and spirit pervading through statute. Based in part on the United Nations Genocide
Committees travaux prparatoires as a form of legislative history, it concluded that the terms
national, ethnical, racial, or religious group should be understood to designate more broadly

the notion of a stable and permanent group. The Tutsis met those criteria, and Akayesus
conviction followed. This kind of interpretation was largely based on social construction of
identity categories and the subjective intent of the perpetrators. However it is the ICTRs
jurisprudence on genocidal intent has been characterized as ultimately confused. Andreson has
tried to resolve this confusion by categorizing the genocide definition into the De re and De dicto
approaches. De re: There exists some X that is in fact a national, ethnic, racial, or religious group,
and the perpetrator intended to destroy X. De dicto: The perpetrator intends to destroy some
group as an ethnic group (or as a national group, or as a racial group, or as a religious
group). De dicto 2: The perpetrator intends to destroy some group as a national, ethnic, racial,
or religious group. De dicto 3: The perpetrator intended to destroy some group as a people, to
wit, a national, ethnic, racial, or religious group.
It therefore makes sense that the Convention was drafted and should be interpreted with
the four named categories representing corner posts that define the intent to destroy a people as
such, not the distinctiveness of the targeted people. Though four categories define and give shape
to that intent, no single one of those dimensions of difference need correspond to the facts of a
particular mass atrocity in order for that intent to be present, in order for genocide to have
occurred.
Fourth example is regarding Disability. In order to claim the ADAs protection from
discrimination (often in employment), claimants had to prove as a threshold matter that they had
or were regarded as having a disability. In the definition, disability is further articulated in
terms of impairment and major life activity. The courts reasoned, without proving which
impairment and which major life activity the employer had in mind. The following
paraphrases distinguish the de re and de dicto interpretations of the statutes major-life activity
requirement:
De re: There is some X, and X is a major life activity, and the employer regards the claimant as
being substantially limited in X.
De dicto: The employer regards the claimant as being substantially limited in some major life
activity or other.
Thus it could be concluded from the above examples that both the De Re and De Dicto
construction need to be made to avoid the persistent misreading of the statute as once the statute
has been misread and a precedent established, it was impossible to backtrack.

PART III : WHY DO LAWYERS MISREAD?

This part explores why lawyers misread. Misreading of opaque sentences is tantamount to giving
cognitive bias the force of law.
The author traverses and draws clues from psychology: Legal interpretation of opaque sentences
implicates at least two branches of cognitive psychology. Firstly, the study of how we acquire
and process language and the science of how we reason more generally . There is a conflict
between the two as we analyze opaque constructions Step by step. There is a clash between our
intuitions about how language works with lawyerly intuitions about how to prove a claim
methodically.
Author makes an analysis of children being realists i.e., they use the word in a more
etymologically faithful sense than we usually use that word. Research on childrens theory of
mind the ability to attribute mental states to others shows that children confuse actual facts
with non actual states in very simple contexts But a lawyer needs to register an ambiguous
statutes de dicto reading, one must consider some non actual state of affairs (the world as
believed, as intended, as pretended, as endeavored, as regarded) regardless of what is true about
the actual world.
Further evaluation has been made on the theories of cognitive bias: According to the theory of
cognitive biases our thinking is negotiated between two types of cognitive mechanism. System 1
or fast thinking is cognitively easy, intuitive, associative (making connections by similarity as
opposed to computational reasoning), and automatic. By contrast, slow System 2 operations
are effortful, analytical, algorithmic, and conscious. The Dual process theory also fits lawyers
skepticism of the claim that they are missing the de dicto reading in the first place. This inner
psychodrama nicely captures the conflict between of course, why didnt I see that before and
but that cant be right, which seem to do battle in lawyers reactions to an exposition of
linguistic opacity, particularly when pointing out the perils of opaque constructions goes against
the grain of accepted patterns of legal reasoning. Thus the legal training and legal institutions
make a general cognitive bias more difficult to resist in our particular work.
The role of law in propagating error: Author argues that educational, structural, and cultural
factors conspire to endorse misreading in law, bringing it from the realm of individual minds to
the level of the profession. Inspired by dual process categories of missing and contaminated
knowledge as a way of organizing these factors, this section frames legal misreading in terms of

(1) what we lack in tools to reason effectively about opacity, and (2) what we possess of
reasoning strategies that we erroneously apply to opaque provisions in statutes.
Tools lawyers lack: Conceptually, they have a notion of structural semantic ambiguity for
distinctions of meaning that are neither lexical nor syntactic, of which de dicto/de re is one.
Tools lawyers use that do not work. The mechanical reasoning that lawyers and judges apply
to opaque sentences (in fact, to all sentences) amplifies and spreads irrational interpretation.
PART IV: WHAT CAN WE DO ABOUT MISREADING?

The category we use to refer to that thing is simply an intelligible way of identifying the
res, which just so happens to be in that category. A lawyer needs to contemplate the

below situations and act accordingly:

de re (dr) only: de re is necessary and sufficient .
de dicto (dd) only: de dicto is necessary and sufficient .
either dd or dr: de re is sufficient and de dicto is sufficient.
both dd and dr: de re is necessary and de dicto is necessary.
Urging legislators to draft more carefully may strike lawyers as the obvious way to
prevent misreading. But even the Legislators cannot reliably signal that de dicto or de re
readings are intended. Even when one grasps the difference between de dicto and de re
readings, one can still sometimes find it difficult to tease them apart, particularly when
using substantially the same vocabulary that gives rise to ambiguity in the first place. To
convey the difference between de dicto and de re readings, linguists resort either to
highly formal articulations of the sentences logical structure or to detail-rich but
contrived scenarios that distinguish the two meanings. Neither of these is a good fit with

our present practices of encoding law in text.

At the point of drafting, computational aids offer a promising direction for handling two
tasks that humans struggle with: spotting structural ambiguity and making explicit the
complex range of hypothetical situations that an opaque statutory provision could
describe. Both of these tasks demand sensitivity to structure and computational ability
that play to the strengths of machines. Technology might also aid in training lawyers to
recognize opacity, if not spontaneously, then once it has been raised.

ANNOTATION
It is worth observing that the sort of problem discussed in Andersons article comes up (as she
indicates) in cases involving questions of knowledge and intention (for example, general intent
versus specific intent). Thus, there are connections with the notorious problem of impossible
attempts. As Anderson points out, our uncertainty about such cases comes from the use of texts
that include terms (for example, attempt, conspire, or impersonate) that relate to mental
states and hypothetical or imagined worlds. Arguably, a focus on purpose or mischief could
once again helpfully guide those applying such rules. Anderson suggests that the problems of
misreading on which she focused might be solved by some combination of better training in law
school and technology that might warn lawyers and judges when legal texts contain opaque
constructions. Both recommendations are worth taking seriously. An would add on to the
responses to opaque constructions may include an understanding of the importance of focusing
on the purpose legal norms serve, the mischief they are meant to prevent.