The Scrivener's Error

It is, of course, an indispensable part of a scrivener's business to verify the accuracy of his copy, word by word. Where there are two or more scriveners in an office, they assist each other in this examination, one reading from the copy, the other holding the original. It is a very dull, wearisome, and lethargic affair.[dagger]INTRODUCTIONSpeakers occasionally misspeak. Congress is no exception. Like the rest of us, Congress sometimes says "and" when it means to say "or,"1 or "less" when it means to say "more."2 Courts take this into account, but only in "rare" cases.3 Pursuant to the "scrivener's error" doctrine, courts recognize a "meaning genuinely intended but inadequately expressed" if and only if Congress's inadequately expressed intention is "absolutely clear."4 If, by contrast, misexpression is merely "likely,"5 courts disregard Congress's likely intention, instead enforcing a statute "as written."6 Thus, if Congress says "and" but only likely means to say "or," it falls on Congress to correct its likely mistake.7 Until it does, "and" means and.Scrivener's errors are largely unaddressed by existing scholarship- the most influential discussion of the topic to date is contained in a single footnote.8 What scholarship there is is basically supportive of the current doctrine. John Manning, for example, suggests that courts may be right to recognize scrivener's errors so long as those errors are "obvious."9 Others insist that error recognition is appropriate, but only in "extreme circumstances,"10 or if evidence of error is "near conclusive."11This Article argues that, even on its own terms, the current scrivener's error doctrine is erroneous. It produces systematic misinterpretation in the form of systematic underrecognition of errors. Courts insist time and again that the measure of statutory interpretation is Congress's intent, appropriately conceived.12 Yet by this measure, the current doctrine reliably delivers the wrong results. To explain, the rationale for recognizing only "absolutely clear" scrivener's errors is that, if a court were to recognize a less clear error, it "might be rewriting the statute rather than correcting a technical mistake."13 But as this Article shows, the reverse is often true. If a scrivener's error is more likely than not, but less than "absolutely clear," a court is-by its own lights-probably "rewriting the statute" by refusing to recognize the likely error. After all, a court in such a case finds itself in the embarrassing position of having to say (or at least think), "Congress probably meant one thing, but we are going to act as if it meant something else." Put differently, the problem with the rationale for the current doctrine is that it ignores that courts can misinterpret 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 not the other (false negatives), the doctrine consistently underrecognizes scrivener's errors.The current scrivener's error doctrine, in addition to promoting inaccuracy, encourages distorted argumentation. Take, as an example, the recent dispute over insurance subsidies and the Patient Protection and Affordable Care Act (PPACA)14 in King v. Burwell.15 In that case, the question before the Court was whether a provision of the tax code authorizing subsidies for health insurance purchased through "Exchange[s] established by the State" included insurance purchased through both staterun and federally facilitated exchanges, or through state-run exchanges alone.16 As this Article explains, it is likely that the provision at issue in King contains a simple scrivener's error, namely the accidental omission of the phrase "or by the Secretary [of Health and Human Services]." Because, however, that error is less than "absolutely clear," the current doctrine prevented the Government and supporting amici from advancing that argument. …