But that is Absurd! Why Specific Absurdity Undermines Textualism
Brooklyn Law Review, Vol. 76, p. 917, 2011
17 Pages Posted: 14 Apr 2011 Last revised: 31 Aug 2011
Date Written: April 13, 2011
Absurdity is currently undefined in either the jurisprudence or scholarship; yet, it is one method by which textualists avoid the ordinary meaning of clear statutory text. Currently, the absurdity doctrine covers two very different types of statutes. It covers those statutes that are patently absurd on their face and in virtually all situations, such as a statute that allows a judge to weigh the probative value of a witness’s prior conviction when the evidence is offered by a civil defendant but not when offered by a civil plaintiff. It also covers those statutes that are absurd only when applied to specific situations, such as a statute that penalizes individuals from owning wild animals as applied to a person who rescues an injured squirrel. To date, the distinction between these types of absurdity has neither been noticed nor explored. This article fills that gap by defining the difference between specific and general absurdity and by examining why this difference matters. Given that the absurdity doctrine allows textualist judges to ignore the ordinary meaning of clear statutes, this article concludes that textualists should be especially loath to apply the doctrine in cases of specific, as opposed to general, absurdity. Yet, it is precisely in cases of specific absurdity that judicial intervention is needed most.
Keywords: Statutory Interpretation, Textualism, Absurdity, Holy Trinity, Purposivism, Intentionalism, Statutory Construction
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