Summary of ‘Misreading Like a Lawyer’: Cognitive Bias in statutory interpretation

Summary of ‘Misreading Like a Lawyer’: Cognitive Bias in statutoryinterpretation.

by Jill C. Anderson 

Harvard Law Review [Vol. 27], April 2014

Introduction

Opaque sentence always witnesses the trouble for interpreter to understand and construe. The way almost all legal actors commit blunder while interpreting a certain class of sentences is the reason why statutory violations go unpunished which is not because of careless drafting by the legislature or adoption of literal meaning by judges. So; now the solution we can find either in language of interpretation or in psychology behind the interpretation. Hence; language can further provide the basic sense of interpretation but the psychology in support of that plays very important role i.e. cognitive bias. Because; the litigator used the tool of interpretation to argue the case and also sometimes make abuse of it to serve the purpose they are expecting which can lead to very vicarious consequences.

It is very important to plain reading of legal text and the same cannot be left without being taken into consideration. Therefore the statutory interpretation can be divided from their historical perspectives which were the hardcore lawyers who significance the pure textual meaning and there was another class who advocated the importance of purpose which author of the text wants to convey.

Transparent v Opaque sentence

So; now there is class of opaque sentences and verbs to interpret which can create the considerable and costly havoc in the areas of law it cause problem because of our mishandling. Which are as follows?

1. de dicto(about what is said)
2.  de re(about the thing)

Illustration 

Now here based on Existence, Specificity and Substitution we can categories the patterns of such opaque versus transparent sentence which is easily understood by following illustration.

1. Transparent Sentence: Tony killed Pauli .
2. Opaque Sentence: Tony wanted Pauli dead.

Transparent Sentence illustration:

1. Existence: Pauli existed for sure here. As sentece clearly says that tony killed paullie. 
2. Specificity: Pauli was killed means the sentence is very specific.
3. Substitution: In the position of the paullie there can be anyone having subsitute                                     meaning and weightage.

Opaque Sentence illustration:

1. Existence: The term wanted is so vague therefore existence of Pauli is in question.
2. Specificity: No specificity as there is just an expectation or assumption.
3. Substitution: Pauli can not be changed without changing of its meaning.

Transparent sentence are very clear that they provide an answers to all the question but when one came into contact with opaque one then ambiguities starts arising because of the sentence itself as an opaque sentence opens gates of inquiries as it is either situation based or just a mental state of affairs.  So; without getting the answer of whether the contention arose in opaque sentence so true or not then it is not possible to reach at concrete conclusion. But to expand the horizons of ideas we want convey through the communiqué we use some opaque verbs and then it invites the inquiries which can lead to serious dispute among st readers.

Hence; the interpretation can be done in these ways and regardless of the consequence one interpret it the way he thinks which can be ultimately influenced by the cognitive bias of the person. The one can reach at a conclusion when he read the clear and transparent sentence but the process of reaching at conclusion will not be as unambiguous as with the case of opaque sentence. 

How to read opaque sentence : De Re & De Dicto

Ambiguity of any sort is not just a technical fact about the language but the two ways of interpretation of opaque sentence which are as follows;

1. de dicto(about what is said)
2. de re(about the thing)

Now to distinguish between de re & de dicto then we have to target the communication as either we should speak about the particular thing which we want to speak about or want to point out or the other way we should refer to category of things where we want to focus on relationship of it with the subject matter of conversation.

Indentifying De Dicto and De Re Readings

Courts interpretative process begins with by posing de re questions and then de dicto questions. If posing de re questions does not solve the query, then the court moves to de dicto questioning for better understanding.

Now when it comes to legal reading of any legal text then either transparent or opaque both the readings are on an equal footing and are viable interpretations but to make it transparent, contextual clues need to be consulate. If only either one literal reading are adopted, then there is bound to be disharmony between a statutes’ expected concern and its construction by implemented language.

Reasons of Misreading by Lawyers

Psychological Aspect

Psycho-linguistics (the study of how we acquire and process language) and how we reason it? So here legal institution failed to analyse the correct interpretation of opaque sentence due to psychological aspect.

Knowledge about the real world interferes with our ability to judge a situation on its merits. Ambiguous language requires one to keep in mind several different but related situations. Opaque sentences take extra time to read and resolve, especially when de dicto meaning is intended. In such a scenario, the call for de re-only interpretation is too easy to be resisted.

There are two types of cognitive mechanism-

1. Making connections by similarity as opposed to computational reasoning
2. Effort-full, analytically, algorithmic, and Conscious. 

Lawyers and judges use the same tools of interpretation both for transparent and opaque sentences. Faulty reasoning strategies which mimic helpful strategies are commonly used by the legal fraternity.

Role of Law in Propagating Error

Lawyers think that linguistic ambiguities are either related to the words and vocabulary or related to principles on which sentences are constructed.

It has been found that legal misreading occurs due to various kinds of thinking errors. Legal entities and legal institutions have made it difficult to resist the cognitive biases that people practicing law have developed over time.

Solution for overcoming these problems

Legislation is after all the only institution to make laws and provide it for further interpretation so; at first instance of law making only legislators if make this sure that; there won’t be any ambiguity as far as statues language is concerned and if any then legislators should be wise enough to make provisions of hypothetical situations which can eradicate the risk of interpret it wrongly.  For which; the structure of sentence and the intention-object relationship of laws is very important means whether a law is procedural or a substantive one it should be clearly specifies its object and therefore intention of the law i.e. how law will affect the object . Lawyers shall provide with technological assistance on this problem to overcome with more innovative and quick solutions.

Conclusion

Meticulous interpretation can hamper lawyer’s ability to construe a meaning which can get through plain reading of any text which apparently not healthy for their practice of law. Like the criminal institutions where the department of cognitive science has been gaining more & more importance now a days; legal institutions also focus on the development of their field by avoiding cognitive biases of its practitioners. But as the interpretation plays an important role in any profession and as far as law is concerned; it develops through interpretation only and lawyers duty to interpret in order it prove its argument make this problem more complex so the best solution can be ‘churning’ through which users of legal language can avoid the ambiguities and then further provide the better assistance to interpret it for lay man.