Absurd Statutes

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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8 Responses

  1. Steve Vladeck says:

    There were a bunch of cases about language in CAFA that required an appeal to be filed “no less than 7 days” after a particular order, which courts uniformly held to mean “no _more_ than 7 days.” See, e.g., http://pubcit.typepad.com/clpblog/2006/10/cafa_appeals_th.html

  2. Josh Chafetz says:

    Scalia relies on the canon of absurd results in his concurrence in the judgment in Green v. Bock Laundry.

  3. Kent says:

    Here’s one:

    The statute says that “If a person refuses to submit to a chemical test, the arresting officer shall inform the person that refusal will result in the suspension of the person’s driving privileges.”

    Defendant (stopped for suspected OWI) argued that, while he was informed multiple times BEFORE he refused the chemical test that his refusal would result in suspension of driving privileges, the statute required that he be informed AFTER his refusal – which he was not. The Indiana COA held that “it would be a statutory interpretation producing an “absurd result[ ]” to require that despite the multiple warnings that expressly advised Ray that if he refused to consent to the chemical test, his license would be suspended, the statute nevertheless requires that he be so advised again after he refused the chemical test.” State v. Ray, 886 N.E.2d 43, 48 (Ind. Ct. App. 2008)

  4. Brett Bellmore says:

    Here, of course, the result is not “absurd”, it is merely not the policy desired by some.

  5. Paul Burns says:

    Not uncommon in my world (tax). Larry Zelenak wrote an article a number of years ago. Don’t have the cite handy, but the title includes the words “purposive interpretation.”

  6. Josh Chafetz says:

    Re: Brett’s comment above, as Lord Bramwell wrote in 1884, “what seems absurd to one man does not seem absurd to another.” This, of course, is the classic textualist critique of the avoidance-of-absurdity canon, but it is interesting (to me, at least) that even Scalia does not go that far today.

    (Also, if I’m not mistaken, Gerard’s post went up before Halbig came down; if that’s right, then either he’s prescient or his question wasn’t referring to Halbig in particular.)

  7. Elizabeth Weeks Leonard says:

    Today’s Halbig decision discusses the absurdity doctrine, beginning p. 22 of the slip op. http://www.cadc.uscourts.gov/internet/opinions.nsf/10125254D91F8BAC85257D1D004E6176/$file/14-5018-1503850.pdf

  8. Amy Fisher says:

    The whole idea is to understand why it is deemed illegal. What one judge thinks is right or missing in the case may not be in line with what another judge thinks about the same case. So, ultimately, the word ‘absurd’ is used not in context with law, but in individual perceptions of law.