Harvard Law Review Forum
In her excellent article, Misreading Like a Lawyer: Cognitive Bias in Statutory Interpretation,1 Professor Jill Anderson explains an intri- cacy of sentence meaning that is well known by linguists, generally handled adequately by most of us in normal conversation, but appar- ently misunderstood and badly handled by lawyers and judges. The misreading in question is based on what linguists call “opaque con- structions”: texts whose structural ambiguity creates alternative read- ings. 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.”2 Opaque verbs tend to include those that speak of hypothetical states of affairs or mental states (for example, “intending,” “promising,” and “believing”).
Brian H. Bix, Statutory Reading of Opaque Constructions - Errors and Purposes, 127 Harv. L. Rev. F. 200 (2014), available at http://scholarship.law.umn.edu/faculty_articles/195.