Absurdity in Disguise: How Courts Create Statutory Ambiguity to Conceal Their Application of the Absurdity Doctrine

Abstract

Although explicitly invoked only in rare cases, the absurdity doctrine is far more robust in practice than commonly assumed. This is because of a phenomenon I call “absurdity in disguise,” wherein judges use the anomalous or undesirable results of applying a statute’s ordinary meaning to “create” statutory ambiguity, opening the door to a variety of interpretive tools that would otherwise be unavailable. Ironically, the use of ambiguity to conceal the use of the absurdity doctrine is a direct result of judges’ increasing acceptance of textualist methods of statutory interpretation. Because textualism eschews results-oriented interpretive approaches, judges who wish to avoid a result of applying statutory text as written must employ text-centric arguments to do so. This article identifies the concept of absurdity in disguise and reveals its use in a variety of decisions at all levels of the federal courts.

Keywords: statutory interpretation, courts, legislation