Abstract

Textualist theories of statutory interpretation emphasize the primacy of the statutory text. Yet textualism also recognizes two exceptions that allow interpreters to depart from the plain meaning of the statutory text: an absurd results rule and a scrivener's error doctrine. William Eskridge has shown that such exceptions are unprincipled; they are unnecessary as well. Textualism's exceptions conflict with the theoretical argument for textualism; undermine the need for, and likelihood of, legislative correction of statutory mistakes; and encourage claims of absurdity and drafting error that consume the precious time and other resources of judges, attorneys, and litigants alike. At the same time, the exceptions are rarely applied, they address results that could be avoided by other means, and they persist despite the absence of such rules in other interpretive contexts. Textualism, in short, would be better served by always adhering to the statutory text rather than defending any exceptions.

Recommended Citation

John C. Nagle, "Textualism's Exceptions" Issues in Legal Scholarship, Dynamic Statutory Interpretation (2002): Article 15.
http://www.bepress.com/ils/iss3/art15