What Statutory Drafting Errors Teach Us About Statutory Interpretation

Document Type


Publication Date





This article claims that statutory drafting errors undermine the basic tenet of the textualist theory of statutory interpretation, which is that statutory text is the law that courts must follow. Courts should, the article suggests, be permitted to depart from statutory text in appropriate cases. The article claims that background principles of law can and do play a critical role in helping courts identify cases in which such departures are appropriate.

The article begins by examining a curious error in a very well-known statute, the basic federal venue statute. The statute permits plaintiffs in federal civil cases to lay venue in "a judicial district where any defendant resides, if all defendants reside in the same state." 28 U.S.C. Section 1391(a)(1), (b)(1). It would seem obvious that, to lay venue based on this provision, a plaintiff must bring suit in some judicial district in the state in which all defendants reside. In fact, however, the article shows that, in some cases in which all defendants reside in the same state, this provision permits a plaintiff to lay venue in some other state. This perverse result was surely never intended by the statute's drafters; it is a drafting error.

The article uses this error as the jumping-off point for a discussion of the implications that such errors have for theories of statutory interpretation. Such errors, the article claims, undermine the textualist theory of interpretation by forcing textualists to choose between two unappealing alternatives: either the textualists must endorse unacceptably foolish results, or they must abandon their fundamental belief that statutory text is the law. This flaw in the textualist theory does not, however, mean that courts must employ the full license permitted by the intentionalist theory of interpretation, which the textualists rightly criticize. Courts need a method that helps them to determine when departure from statutory text is appropriate.

The article proposes that courts make this determination by looking to background principles of law. In the case of the venue statute, the relevant background principle is that venue doctrines exist to ensure that cases are tried in convenient forums. The startling incongruity between this principle and the venue statute (if interpreted literally) demonstrates the need for a departure from the literal statutory text. The article suggests that this technique of "contextualism," defined as "interpreting statutes in the context provided by the judicially discoverable background principles of the relevant area of law," can serve as a generally useful guide to the interpretation of statutes.

This document is currently not available here.