The Absurdity Doctrine
116 Harv. L. Rev. 2387 (2003)
100 Pages Posted: 12 Oct 2016 Last revised: 14 Oct 2016
Date Written: June 1, 2003
From the earliest days of the Republic, the Supreme Court has subscribed to the idea that judges may deviate from even the clearest statutory texts when a given application would produce otherwise absurd results. This approach has been an important safety valve in the Court’s case law even during its most textualist phases. The absurdity doctrine is predicated on the idea that Congress enacts legislation against the constraints of limited foresight, resources, and time, and that general language will sometimes produce unanticipated results. The doctrine then assumes that when a statute’s plain meaning produces a result that is contrary to society’s widely shared values, the result must have been unanticipated — something Congress would not have “intended” had it considered the question explicitly. Under that assumption, the Court has been able to avoid apparent statutory oddities without perceiving itself to have violated the constitutional premises of legislative supremacy.
This article contends that the insights of modern textualism and public choice theory make that assumption harder to sustain. The legislative process is untidy, and the particular wording of a statute may have been, for unknowable reasons, essential to its passage. Thus, rather than identifying legislative intent, the Court’s invocation of “absurd results” to disturb a clear statutory text, in fact, risks displacing whatever bargain legislators actually reached through the complex and path-dependent legislative process. Moreover, treating the absurdity doctrine, in the alternative, as a normatively justified element of the federal judiciary's law-declaration power not only violates important assumptions underlying our constitutional structure, but also creates an unexplained incongruity between the constitutional assumptions applied in the Court's statutory cases and those applied in constitutional cases involving rationality review. After developing its critique of the absurdity doctrine, the article then considers alternative interpretive doctrines that have enabled the Court to avoid some but not all statutory absurdities.
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