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Laura Rae Dove: Absurdity in Disguise
Michael Ramsey

Laura Rae Dove (Department of Management, Human Resources & Law,  Troy University) has posted Absurdity in Disguise: How Courts Create Statutory Ambiguity to Conceal Their Application of the Absurdity Doctrine on SSRN.  Here is the 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.

And (because it seems like an important article that might not get the attention it deserves), here is the introduction (footnotes omitted):

That judges make law, rather than merely discover it, has been broadly (if grudgingly) acknowledged at least since the advent of legal realism. Yet judges’ discomfort in acknowledging this fact—and attempts to obscure their lawmaking—have also been well documented. Judicial and scholarly proponents of textualism, a method of statutory interpretation, are some of the most vocal in denouncing judicial intrusion into the policy and lawmaking realm of legislatures. Textualism emphasizes the determination of statutory meaning based on the ordinary meaning of a statute’s text; it rejects attempts to circumvent or even supplement the apparent meaning of statutory text through inquiries into the enacting legislature’s intention or purpose. For textualists, statutes simply mean what they say

Scholars have thoroughly documented a strong textualist shift within the Supreme Court over the last few decades. In light of textualism’s profound influence, judges are highly attuned to the separation of powers concerns underlying the doctrine’s efforts to restrict judicial interference with the legislative role. Yet, the gap between what judges do and what they say they do has, perhaps ironically, only grown with the popularity of textualism as a statutory interpretation method. At first blush, the contention that textualism has widened the gap between what judges do and what they purport to do seems counterintuitive. One of textualism’s explicit goals is to restrict improper judicial lawmaking. If textualism has been so successful, there should be less (improper) lawmaking in the first place; therefore, any need to conceal it should likewise have diminished.

To shed light on this paradox, another phenomenon must be examined in tandem with the rise of textualism: the declining acceptance of the absurdity doctrine. The absurdity doctrine is a canon of statutory interpretation holding that a statute’s apparent ordinary meaning may be disregarded if the results of its application are (in some sense) absurd. The conflicts between textualism and at least some iterations of the absurdity doctrine have been well-documented in the literature. Modern judges typically eschew all but the most narrow versions of the absurdity doctrine, requiring a statute's plain meaning to be patently illogical or insensible in order to justify applying the doctrine.8 Otherwise, they contend, the judiciary risks overstepping its constitutional limitations by ignoring plain meaning where it entails an outcome seemingly contrary to the overall statutory purpose or policy. Absurdity’s willingness to subvert a statute’s clear meaning to avoid an undesirable result obviously clashes with textualism’s admonitions regarding the dangers of results-oriented decision-making. Yet, as scholars have pointed out, textualism essentially requires some version of the absurdity doctrine in order to avoid truly untenable interpretations or applications of apparently clear statutes.

Textualism’s combination of textual primacy and strict limits on the use of the absurdity doctrine significantly constrain judges’ discretion to look beyond a statute's text during the interpretive process in order to achieve results thought by a judge to be fair, consistent with statutory purpose, or consistent with legislative intent. However, textualism's success has had an unintended and potentially counterproductive consequence. Judges, wary of appearing overly "results-oriented" by liberally applying the absurdity doctrine, have seized upon an interpretive rule with broader acceptance that ultimately permits them to achieve the same result: ambiguity.

Once a statute is determined to be ambiguous, even textualists will consult a much broader range of sources as interpretive aids than would otherwise be permissible. Thus, if the "hurdle" of ambiguity can be overcome, judges are afforded greater discretion than they would be if hampered by a finding of plain meaning—which, given the current narrow version of the absurdity doctrine, must be applied absent extreme circumstances. The rise of textualism and decline of the absurdity doctrine have created an incentive for judges to find that the language of a statute is ambiguous. By so doing, I will argue, courts are able to achieve results virtually identical to those possible if a judge determined that a statute's meaning was plain and then proceeded to apply some version of the absurdity doctrine. At the same time, by framing their decisions in linguistic, rather than policy considerations, judges minimize the appearance of acting outside the judicial role. Statutory purpose, policy goals, and outcomes can all be considered; contradictory text is supplanted even as its preeminence is exalted. Thus, I refer to this phenomenon as "absurdity in disguise."

This article explores how the confluence of modern versions of textualism and the absurdity doctrine contributed to the jurisprudential shift I call absurdity in disguise. In Part II, I describe the uncomfortable fit between textualism and the absurdity doctrine in further detail, outlining their conflicting justifications and policies. In Part III, I describe the phenomenon of absurdity in disguise and explain how the creation of statutory ambiguity enables judges to obtain the same results as if the absurdity doctrine were openly applied. In Part IV, I discuss  several recent cases in which absurdity in disguise can be observed. The cases involve statutes displaying classic symptoms of absurdity, including statutes that appear to be too broad or too narrow for their applications to be consistent with the statute's likely intended reach. Part V concludes.