Law Commons^™

The Scrivener’S Error, Ryan D. Doerfler

Northwestern University Law Review

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 …

Controlling Presidential Control, Kathryn A. Watts

Michigan Law Review

Presidents Reagan and Clinton laid the foundation for strong presidential control over the administrative state, institutionalizing White House review of agency regulations. Presidential control, however, did not stop there. To the contrary, it has evolved and deepened during the presidencies of George W. Bush and Barack Obama. Indeed, President Obama’s efforts to control agency action have dominated the headlines in recent months, touching on everything from immigration to drones to net neutrality. Despite the entrenchment of presidential control over the modern regulatory state, administrative law has yet to adapt. To date, the most pervasive response both inside and outside the …

Where Have You Gone, Karl Llewellyn - Should Congress Turn Its Lonely Eyes To You, Stephen Ross

Stephen F Ross

The purpose of this paper is to explore what, if anything, Congress should do about the canons of statutory construction to prevent judges who are more conservative (or perhaps, in a future era, more progressive) than the majority of the legislature from employing those canons to distort or frustrate legislative policy preferences.

Reaganist Realism Comes To Detriot, Stephen Ross

Stephen F Ross

Part I of this article discusses Detroit Newspapers and explains how in deferring to the Attorney General's interpretation of the Newspaper Preservation Act, Judge Silberman disregarded every applicable technique of statutory interpretation typically used to resolve the issue. Indeed, each of these techniques suggests that Attorney General Meese's interpretation of the Act was incorrect. This part of the article also demonstrates why deference to Meese was particularly inappropriate in light of the generally accepted justifications for judicial deference to administrative interpretations of statutes.

Part II explains that Detroit Newspapers is one of several opinions by conservative Reagan judicial appointees that …

Beyond Severability, Lisa Marshall Manheim

Articles

Severability is a wrecking ball. Even the most cautious use of this doctrine demolishes statutes in contravention of legislative intent and without adequate justification. It does so through the imposition of an artificially restrictive framework: one that requires that courts respond to a statute’s constitutional flaw by disregarding that statute either in whole or in part. In the last few years alone, this framework has flattened the Voting Rights Act, threatened the Bankruptcy Code, and nearly toppled the Affordable Care Act.

Yet courts apply severability reflexively, never demanding justification for its destructive treatment. Scholars, meanwhile, assiduously debate the particulars of …

Beyond Absurd: Jim Thorpe And A Proposed Taxonomy For The Absurdity Doctrine, Hillel Y. Levin, Joshua M. Segal, Keisha N. Stanford

Scholarly Works

In light of the Third Circuit's recent decision interpreting the Native American Graves Repatriation Act, this Article argues that the Supreme Court must clarify the Absurdity Doctrine of statutory interpretation. The Article offers a framework for doing so.