Has Vagueness Really No Function in Law?

When the United States Supreme Court used the expression “with all deliberate speed” in the case Brown v. Board of Education, it did so presumably because of its vagueness. Many jurists, economists, linguists, and philosophers accordingly assume that vagueness can be strategically used to one’s advantage. Roy Sorensen has cast doubt on this assumption by strictly differentiating between vagueness and generality. Indeed, most arguments for the value of vagueness go through only when vagueness is confused with generality. Sorensen claims that vagueness – correctly understood – has no function in law inter alia because judges lie systematically when confronted with borderline cases. I argue that both claims are wrong. First, judges do not need to resort to lying when adjudicating borderline cases, and even if they had to, this would not render vagueness useless. Secondly, vagueness has several important functions in law such as the reduction of decision costs and the delegation of power. Although many functions commonly attributed to the vagueness of legal expressions are in fact due to their generality or other semantic properties, vagueness has at least these two functions in law

Lying for Strategic Advantage: Rational and Boundedly Rational Misrepresentation of Intentions. .

Starting from an example of the Allies’ decision to feint at Calais and attack Normandy on D-Day, this paper models misrepresentation of intentions to competitors or enemies. Allowing for the possibility of bounded strategic rationality and rational players’ responses to it yields a sensible account of lying via costless, noiseless messages. In some leading cases, the model has generically unique pure-strategy sequential equilibria, in which rational players exploit boundedly rational players, but are not themselves fooled. In others, the model has generically essentially unique mixed-strategy sequential equilibria, in which rational players’ strategies protect all players from exploitation.

The Brokerage of Asymmetric Information

In this paper we oversee the logic of information sets, firstly handling information and markets in perfect environments and, secondly, dealing with information and markets in imperfect environments, in the context of bounded rationality. Further on, asymmetric information is addressed together with the role of opportunistic behaviour through hidden action, hidden information, the free-rider problem and signaling, expanding on financial accounting and asymmetric information. At last, asymmetric markets are expanded on, reviewing the buyers’ and sellers’ markets so as to handle the performance of intermediaries who stand ready to provide with immediacy and liquidity to buyers and sellers of financial assets. There are two contributions that this paper brings forward: firstly, an intuitive treatment of information sets in the context of mathematical Set Theory so as to make tractable some issues still neglected. Secondly, we claim and develop that a careful assessment of information sets makes headway towards an approach that regards market makers and other intermediaries as brokers of asymmetric information.

Signaling Under Uncertainty: Interpretative Alignment Without a Common Prior

Communication involves a great deal of uncertainty. Prima facie, it is therefore surprising that biological communication systems – from cellular to human – exhibit a high degree of ambiguity and often leave its resolution to contextual cues. This puzzle deepens once we consider that contextual information may diverge between individuals. In the following we lay out a model of ambiguous communication in iterated interactions between subjectively rational agents lacking a common contextual prior. We argue ambiguity’s justification to lie in endowing interlocutors with means to flexibly adapt language use to each other and the context of their interaction to serve their communicative preferences. Linguistic alignment is shown to play an important role in this process; it foments convergence of contextual expectations and thereby leads to agreeing use and interpretation of ambiguous messages. We conclude that ambiguity is ecologically rational when (i) interlocutors’ (beliefs about) contextual expectations are generally in line or (ii) they interact multiple times in an informative context, enabling for the alignment of their expectations. In light of these results meaning multiplicity can be understood as an opportunistic outcome enabled and shaped by linguistic adaptation and contextual information

Experimental Economics for Philosophers

Recently, game theory and evolutionary game theory - mathematical frameworks from economics and biology designed to model and explain interactive behavior - have proved fruitful tools for philosophers in areas such as ethics, philosophy of language, social epistemology, and political philosophy. This methodological osmosis is part of a trend where philosophers have blurred disciplinary lines to import the best epistemic tools available. In this vein, experimental philosophers have drawn on practices from the social sciences, and especially from psychology, to expand philosophy's grasp on issues from morality to consciousness. We argue that the recent prevalence of formal work on human interaction in philosophy opens the door for new methods in experimental philosophy. In particular, we discuss methods from experimental economics, focusing on a small literature we have been developing investigating signaling and communication in humans. We describe results from a novel experiment showing how environmental structure can shape signaling behavior

The Self-Delegation False Alarm: Analyzing Auer Deference’s Effect on Agency Rules

Auer deference holds that reviewing courts should defer to agen­cies when the latter interpret their own preexisting regulations. This doc­trine relieves pressure on agencies to undergo costly notice-and-com­ment rulemaking each time interpretation of existing regulations is neces­sary. But according to some leading scholars and jurists, the doc­trine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of pow­ers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial defer­ence—has helped to persuade the Supreme Court to take up this term the question of whether to overturn the doctrine. Yet, surprisingly, the self-delega­tion thesis has never been tested. This Article scrutinizes the thesis empirically, using an original and extensive dataset of the texts of federal rules from 1982 to 2016. My lin­guistic analysis reveals that agencies did not measurably increase the vagueness of their writing in response to Auer. If anything, rule writ­ing arguably became more specific over time, at least by one measure, despite Auer’s increasing prominence. These findings run against common wisdom, but they should not be at all surprising. The self-delegation thesis depends on a model of agency behavior that is inconsistent with what is known about the insti­tutional pressures and cognitive horizons that cause agencies to pur­sue clarity in rule writing. By revealing the failures of theoretical predictions about Auer, this Article more generally draws attention to the need to test behavioral theories of administrative law against empiri­cal reality before unsettling settled law

The Self-Delegation False Alarm: Analyzing \u3ci\u3eAuer\u3c/i\u3e Deference\u27s Effect on Agency Rules

Auer deference holds that reviewing courts should defer to agencies when the latter interpret their own preexisting regulations. This doctrine relieves pressure on agencies to undergo costly notice-and-comment rulemaking each time interpretation of existing regulations is necessary. But according to some leading scholars and jurists, the doctrine actually encourages agencies to promulgate vague rules in the first instance, augmenting agency power and violating core separation of powers norms in the process. The claim that Auer perversely encourages agencies to “self-delegate”—that is, to create vague rules that can later be informally interpreted by agencies with latitude due to judicial deference—has helped to persuade the Supreme Court to take up this term the question of whether to overturn the doctrine. Yet, surprisingly, the self-delegation thesis has never been tested. This Article scrutinizes the thesis empirically, using an original and extensive dataset of the texts of federal rules from 1982 to 2016. My linguistic analysis reveals that agencies did not measurably increase the vagueness of their writing in response to Auer. If anything, rule writing arguably became more specific over time, at least by one measure, despite Auer’s increasing prominence. These findings run against common wisdom, but they should not be at all surprising. The self-delegation thesis depends on a model of agency behavior that is inconsistent with what is known about the institutional pressures and cognitive horizons that cause agencies to pursue clarity in rule writing. By revealing the failures of theoretical predictions about Auer, this Article more generally draws attention to the need to test behavioral theories of administrative law against empirical reality before unsettling settled law