Drafting Errors

Statutory drafting errors create a clash between "plain statutory text" and the desire of courts to reach just and sensible results in the cases before them. Such errors present a particularly challenging problem for the textualist approach to statutory interpretation: textualists must either apply statutory text notwithstanding any errors, thereby reaching foolish results, or abandon the fundamental tenet of their theory, namely, that statutory text is the law and must be observed.

This Article proposes a method of statutory interpretation that permits judicial departure from statutory text in appropriate cases, while still constraining courts and not permitting them to make such departures anytime judges feel that disregarding statutory text would be a good idea. The method demands that courts give statutory text a meaning that is most in keeping with judicially discoverable background principles that undergird the relevant area of law.


What Statutory Drafting Errors Teach Us About Statutory Interpretation
69 Geo. Wash. L. Rev. 309 (2001)

Abstract
	Statutory drafting errors create a clash between "plain statutory text" and the desire of courts to reach just and sensible results in the cases before them. Such errors present a particularly challenging problem for the textualist approach to statutory interpretation: textualists must either apply statutory text notwithstanding any errors, thereby reaching foolish results, or abandon the fundamental tenet of their theory, namely, that statutory text is the law and must be observed. This Article proposes a method of statutory interpretation that permits judicial departure from statutory text in appropriate cases, while still constraining courts and not permitting them to make such departures anytime judges feel that disregarding statutory text would be a good idea. The method demands that courts give statutory text a meaning that is most in keeping with judicially discoverable background principles that undergird the relevant area of law.