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Abstract

Scrivener’s errors make easy prey for the gentle comedy of the bench and bar, much in the way that typographical errors in billboards, newspaper headlines, and church bulletins form an endless source of humor for late night talk show hosts. But theorists of legal interpretation have long seen that scrivener’s errors pose a more serious problem. The doctrine surrounding scrivener’s error stands considered as something of a cousin to the absurdity doctrine, which has roots extending to the earliest days of the American Republic. More recently, the post-legal-process revival of formalist approaches to statutory interpretation on the bench, and their systematic defense in the academy, has made the problem of scrivener’s error increasingly relevant. Aside from a handful of attempts, textualist theorists have been either unconcerned or uninterested in the problem; even critics of textualism seem to have placed little emphasis on the threat posed by scrivener’s error to textualist theory. Textualist judges, who come face to face with actual examples of scrivener’s error, have gone a bit farther in articulating an approach to the problem, but it is hardly within their province to treat its conceptual moorings, theoretical implications, and evidentiary difficulties in any systematic way. The result has been a textualist approach to the problem that is unsatisfactory in significant respects. This neglect is unfortunate. Scrivener’s error poses a significant challenge to textualist theories of interpretation, and if textualism cannot come up with an adequate answer to the problem of scrivener’s error, it is prima facie an unsatisfactory theory of statutory interpretation. Moreover, how textualists answer the challenge posed by scrivener’s error has the deepest implications for the theoretical foundations of textualism. Finding conceptual room for a doctrine of scrivener’s error within a textualist theory that rejects reliance on legislative history and the absurdity doctrine goes to the very root of what divides textualists from intentionalists. The burden of this article is to provide conceptual moorings for a textualist doctrine of scrivener’s error, to relate the problem of drafting errors to broader textualist theory, and to suggest how the theory of scrivener’s error advocated here might make a difference in practice.

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