John David Ohlendorf has posted Textualism and the Problem of Scrivener’s Error (Maine Law Review, Vol. 64, January 2012) on SSRN. Here is the abstract:
Jurists have long debated the proper approach to “scrivener’s errors,” or legislative slips-of-the-pen. With the rise of the “new textualism,” critics of statutory formalism have used the existence of scrivener’s errors as a weapon against the new textualists, asserting that textualists are not conceptually equipped to justify the correction of drafting errors. In this article, I agree that a theory of statutory interpretation should be able to deal with scrivener’s errors and that this illuminates an important seam within textualist theory. I divide textualist theories into two camps: “intent-skeptical” theories that argue that the very idea of collective legislative intent is empty and “non-intent-skeptical” theories that accept the plausibility of collective intent but urge that textualism should be accepted for normative reasons. The problem of scrivener’s error shows, I claim, that intent-skeptical theories of textualism are inferior to non-skeptical ones because they are unable to justify adequately the correction of drafting errors. I then sketch a non-skeptical justification of textualism and argue that this justification calls for the correction of the full range of scrivener’s errors.
Posted at 12:46 PM