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 Essay 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. In turn, because the current doctrine is designed to protect against one type of mistake (false positives) but not the other (false negatives), that doctrine systematically underrecognizes errors and results in systematic misinterpretation of the law.
Using the example of King v. Burwell, this Essay shows that the overly strict scrivener’s-error doctrine threatens dramatic real-world harm. In King, opponents of the Affordable Care Act exploited a likely-but-less-than-absolutely-clear scrivener’s error to nearly bring down the most significant health reform legislation of the past half-century. More still, the challenge only failed because six justices were willing to accept an implausible textual argument. Furthermore, King is far from sui generis. Recent challenges to ambitious executive-branch action, for example, try to take similar advantage of the current doctrine.
Doerfler, Ryan David, "The Scrivener's Error" (2016). Faculty Scholarship. 1653.