It is widely accepted that courts may correct legislative drafting mistakes, i.e., so-called scrivener’s errors, if and only if such mistakes are “absolutely clear.” The rationale is that if a court were to recognize a less clear error, it might be “rewriting” the statute rather than correcting a technical mistake.
This Article argues that the standard is much too strict. The current rationale ignores that courts can “rewrite,” i.e., misinterpret, a statute both by recognizing an error and by failing to do so. Accordingly, because the current doctrine is designed to protect against one type of mistake (false positives) but not the other (false negatives), it systematically underrecognizes errors and results in systematic misinterpretation of the law.
Using the example of King v. Burwell, this Article shows that the overly strict scrivener’s error doctrine threatens dramatic real-world harm. In King, opponents of the Affordable Care Act exploited a likely, but less than absolutely clear, scrivener’s error to nearly bring down the most significant health reform legislation of the past half century. More still, the challenge only failed because six Justices were willing to accept an implausible textual argument. Furthermore, King is far from sui generis. Recent challenges to ambitious executive branch action, for example, try to take similar advantage of the current doctrine.
Ryan D. Doerfler,
The Scrivener’s Error,
Nw. U. L. Rev.