Krugman’s Fuzzy Typo

The subject is as political as it gets for Paul Krugman in his New York Times column, but that changes nothing about the fact that he is, legally, as wrong as he could possibly be.  Worse still, he uses his soapbox to make readers stupid, which is inexcusable.

Once upon a time, this lawsuit would have been literally laughed out of court. Instead, however, it has actually been upheld in some lower courts, on straight party-line votes — and the willingness of the Supremes to hear it is a bad omen.

Krugman chalks it all up to partisan politics. Obamacare. What could be more partisan, and indeed, it will remain a partisan battleground. But not for the reasons Krugman thinks.  The suit deals with what appears to be a gross error in how the law was written, bearing on the availability of subsidies only to purchasers in state exchanges.  Somebody screwed up.

It’s a ridiculous claim; not only is it clear from everything else in the act that there was no intention to set such limits, you can ask the people who drafted the law what they intended, and it wasn’t what the plaintiffs claim.

Words. Laws are made up of words, and words have meaning.  If the words in the laws don’t reflect what Congress or the President intended, it’s not the words’ fault.  Basic statutory interpretation is that the law is what the words say it is.  There is no fuzzy exception for when the words say one thing but the intent was something else.

But if you look at the specific language authorizing those subsidies, it could be taken — by an incredibly hostile reader — to say that they’re available only to Americans using state-run exchanges, not to those using the federal exchanges.

If by “incredibly hostile reader,” Krugman means someone with a basic familiarity with the English language, then he’s right.  That’s what the law says.  If the words don’t express congressional intent, then the solution is to change the words, not ignore them and pretend they say something else.  Of course, what’s left unsaid by Krugman is that in light of the midterm election outcome, the chances of fixing the mistake is slim to none.  That doesn’t explain why it wasn’t done correctly in the first place, or fixed immediately upon realizing that the words failed to adequately express the intent.

In the title of his column, Krugman calls the error “Death by Typo.”  There is such a thing as a “scrivener’s error,” that the guy who wrote it down made a mistake, left out a word or put in the wrong punctuation, and that the error was not substantive even though it has a disproportionate impact on meaning.  A typo is such an error.  I know typos. This was not a typo. This was not a word misspelled because the scribe erred.  This was a structural error in the law enacted. Should it be corrected? Of course, but that’s a matter for Congress.

I have no interest whatsoever in the position taken by Krugman about how the law should be read or what the intent was. I do, however, have an interest in people not being made stupider by a Nobel Prize winner spewing legal nonsense because it suits his political narrative.  Had there been a word in there, or missing from there, that rendered the language of the statute meaningless or incomprehensible, it would be one thing. But the language was clear and complete. Just not what was intended. They screwed up. Badly.

Unlike Josh Blackman, who views Krugman’s column as “disingenuous” and “ridiculous.” it’s not so far from a scrivener’s error to reflect moral culpability.  It’s completely wrong, and grossly misstates statutory construction, where words say what they say and mean what they mean. And when the words are clear, that’s what the law is.  While there may be partisan smiles on the face of judge who ruled against Obamacare, there is no one to blame but those who wrote the law poorly and carelessly.

On the other hand, Josh nails it when it comes to Krugman’s opening anecdote, the same rhetorical ploy designed to set up the ignorant for the coming fall.

Krugman begins his missive by relaying a story from his childhood about a mistaken deed that was corrected by a town clerk.

My parents used to own a small house with a large backyard, in which my mother cultivated a beautiful garden. At some point, however — I don’t remember why — my father looked at the official deed defining their property, and received a shock. According to the text, the Krugman lot wasn’t a rough rectangle; it was a triangle more than a hundred feet long but only around a yard wide at the base.

On examination, it was clear what had happened: Whoever wrote down the lot’s description had somehow skipped a clause. And of course the town clerk fixed the language. After all, it would have been ludicrous and cruel to take away most of my parents’ property on the basis of sloppy drafting, when the drafters’ intention was perfectly clear.

This story is either not true, or involved a huge mistake of law (I’m leaning towards the former).

An error in a deed can be reformed if all parties agree that it’s an error, and approve of the correction.  Perhaps young Krugman wasn’t privy to the mechanics of the fix, and thought it was just a clerk changing a deed to reflect what his daddy told him.  But to suggest this, that a clerk can unilaterally “fix the language” of  deed is, again, to make people stupider.  It isn’t possible to lawfully do so, and if some clerk somewhere altered a filed deed to say something different, then a terribly wrongful thing happened.

But what is most notable from Krugman’s story, and relates to the problem raised as to Obamacare, is that his parents’ problem was caused by “sloppy drafting.” The burden of sloppy drafting is borne by the sloppy drafters.  The incentive is not to be sloppy, but to get it right.  And of all the things Krugman gets wrong in his column that make people stupider, this is the worst.  Sloppiness is the flaw, not the excuse.

 

 

 

22 comments on “Krugman’s Fuzzy Typo

  1. Jim Majkowski

    In defense of non-lawyer Krugman, his thinking may have been influenced by such, among many others, as Dred Scott v Sanford, Shelley v Kraemer, Bolling v Sharpe,, and Shelby County v Holder, each of which at least arguably relied upon words inferred although not expressed, (again, arguably) because a court desired a result.

    BTW, the Krugman deed sounds like it featured a missed call, which probably didn’t result in a triangle, because when a call is missed it’s unlikely the described segments would come together. These may, at least in many states, be corrected by the affidavit of the scrivener acting alone.

    1. SHG Post author

      Inference resolves ambiguity. None of these case take clear and certain words and read them to say something entirely different. There is no defense.

  2. Richard G. Kopf

    SHG,

    Krugman would have flunked his interview at DOJ (or the White House) for a judgeship, at least in the Bush 41 administration.

    When you go back there before they decide to nominate you, you are interviewed by a lot of smart folks. One of the hypos they test you on is exactly the kind that Krugman laughs at; that is, a statute that clearly says one thing, but probably wasn’t meant the way it was written due to bad drafting.

    Most of the time, the right answer to that hypo for a nonpartisan judge is to follow this simple axiom: read the statute naturally as it is written. Incidentally, one of the reasons that Scalia hates legislative history is that Nobel prize winners in economics and lesser beings can find anything they want therein to read statutes to suit their political purposes.

    Krugman is a propogandist who incidentally won a Nobel prize for something that has absolutely nothing to do with most of the stuff he writes in the Times, and he is an effective propogandist at that. You do a service to thinking folks of both political persuasions when you effectively illustrate why that is so. You also prove that, once in a while, law is not politics by another name. For that, you deserve more bacon.

    All the best.

    RGK

    1. SHG Post author

      Bacon. Better with a nice omelet than any Nobel Prize.

      While I can’t say that I agree with Scalia too often, I do when it comes to leg history. The history reflects Congress’ expression of love for unicorns and rainbows, and has little to do with what the junior senator from Idaho traded for his vote. It’s not a reliable measure of anything beyond smarminess. Writing good laws is critical to my team, as the rule of lenity is invariably honored in the breach, if at all. Vague, fuzzy, poorly worded law is the ruin of criminal defense, and I have little tolerance for lazy legislators.

      1. John Barleycorn

        There has to be a lawyer joke in here somewhere…

        Speaking of operatic potentials and the storyline did you know that just .06 percent of the population (the general population) are lawyers, while 41 percent of the 113th congress (the wardens) were lawyers?

        Just saying…

        Lazy indeed remains the root of many evils but you and the judge might want to step up the chastising for greener pastures before it too late.

        Besides who said it was “lazy”?

        I hear it’s all about the bacon and there is no bacon like the bacon from the hill.

        Now, I must return to the necessary repairs on my chicken coup. It seems as though a mink has chewed his way through the speaker wires running under the coup. My hens won’t produce the eggs great hollandaise demands without the opera.

        P.S. Don’t worry, it actually is a conspiracy. If it weren’t for “lazy” lawyers prancing around as legislators other lawyers wouldn’t have any jobs at all, now would they?

  3. HFB

    I don’t think that this was bad writing as much as it was bad reading or even no reading at all. “We have to pass this so you can see what’s in it” comes to mind. Johnathan Gruber (Mr. Mandate himself) has stated on multiple occasions-and there was even discussion in congress-that this was a crucial part of the legislation. State exchanges result in tax refunds-something the Feds certainly want to provide. No exchange? Have fun explaining to your state’s voters why they are not getting those refunds. It should be read as written. The legislation was designed to force the states to bear the costs of the exchanges, allowing the government to change the qualifications at will with no thought to cost.

    Krugman is so full of doodie I can smell him over here.

  4. David Ziff

    I agree that Krugman is way off on this one. The government’s defenders often make the mistake of yelling “typo” or “general purpose” in response to this case. But the challengers similarly err when they just yell “State means State” without an eye toward the statutory context. I agree with Krugman that the government should win these challenges, but for different reasons (text-based reasons!) that I’ve spelled out here: [Ed. Note: Link deleted per rules.]

    1. SHG Post author

      Krugman did his side no favor with this tripe. I’m agnostic on the law, but deeply antagonistic to Krugman’s making people stupider. And nobody (not even you) gets to link back to himself in a comment. Sorry, pal.

      1. David Ziff

        Ah! Sorry. All these rules I’m finding out about as we go. My apologies! Anyway, if you’re agnostic on the law, then why such a strong view that the statute contains a “structural error” and that the “clear and complete” in the challengers’ favor? You can take shots at Krugman’s argumentation without asserting (without argument) that he’s wrong on the merits, especially since he’s right on the merits—as set out in my deleted-because-in-violation-of-the-rules link explains.

        1. SHG Post author

          Good drafting would have obviated this challenge, regardless of any issues of the substantive intent. If you have to search for context to make your argument, it’s because of bad law writing. Or as like to say when we’re gassing up the limo, “expressio unius est exclusio alterius.”

          1. David Ziff

            That’s where we part ways. That you see “searching for context” as a *negative* aspect of the government’s interpretation demonstrates a cramped and isolated method of statutory interpretation. [Insert link to my post on this subject, but not really, because I’m following the rules this time.]

            1. SHG Post author

              I’m just a crazy lawyer who likes statutes to say exactly what they mean rather than find secret hidden meaning in context, fishbones and tea leaves. But hey, that’s just me.

              I think I got your position from this:

              I started by critiquing the challengers’ “isolationist” method of statutory interpretation, which places enormous weight on a “plain meaning” of favored statutory language, while twisting and dispatching with less favorable statutory text.

              The two following posts set out the full context-based argument for the government, including an analysis of the specifically applicable statutory provisions and the context of the statute as a whole. These posts demonstrate the textual pretzels the challengers must twist themselves into just to save their favored isolationist reading of “established by the State.”

              And then there’s the challengers’ biggest problem: the ACA’s provision for federal exchanges. To rebut the challengers’ narrative that the ACA was a “carrot and stick” incentive system for the states, we don’t need legislative history or the memories of reporters covering the passage of the law. We can just look to the text.

              (Rules don’t apply to me, by the way.) See all the work you have to do, twist and turn, to argue a point that wouldn’t have been in issue had the law been better drafted? Only when the words fail to provide a clear plain meaning do we look elsewhere. That’s how laws should be written, and how they should be interpreted. A bit stiff of a view, granted, but that’s why words have meaning.

  5. Ted H.

    I know you wrote that you have no interest in how the law should be read etc, but you go on to state multiple times that sloppiness and mistakes in drafting don’t amount to scrivener’s error, which assumes that the drafters of the law indeed messed up. However, that is a factual point of contention, and therefore I hope merits a brief acknowledgment. There is evidence that suggests that the law was drafted as such in order to coerce states into setting up their own exchanges, which makes Krugman’s partisanship even more asinine, insidious, or both.

    1. SHG Post author

      I know you wrote that you have no interest in how the law should be read etc, but

      But you couldn’t control yourself and REALLY, REALLY, REALLY HAD TO DO IT ANY!!!

      1. Ted H.

        I actually should partially retract my criticism. I just thought about this some more, and I think differing concepts of the word mistake arise from this situation. On the one hand, there is a mistake where one attempts to do something particular, but fails to do so due to poor execution. On the other hand there is a mistake where one indeed does what they intend, and executes their action as intended, but they do not get the desired outcome of that action e.g. the states did not act in the manner the drafters thought they would. I think you left your statements regarding how the drafters “screwed up” general enough to encompass both types of mistake. Apologies.

        1. SHG Post author

          I didn’t feel badly about your criticism. I just don’t want to get to the underlying political argument about it. My point is to criticize Krugman’s misstating how statutory interpretation works. Nothing more.

          1. Ted H.

            It’s hard to resist the underlying politics of some issue when partisans like Krugman are involved. That it does not matter which type of mistake is at issue here is well taken though. I’m in agreement we should be stuck with what the drafters indeed wrote.

  6. JSchnurr

    Speaking as a programmer – it would be really wonderful if computers interpreted the code you “intended” to write rather than what you actually wrote. I am of course using the programmer jargon version of “wonderful” there which basically translates as “horror and madness on a scale incomprehensible to an innocent soul.”

    Thank you SHG, I know I’m not your intended audience but your posts are always interesting and (mostly) understandable to a non-Lawyer like me.

    You might be surprised how many of your posts are also applicable to software development – the one about The Fallacy of Chesterson’s Fence comes immediately to mind. Many times when eyeball deep in code you’ll find a fence across a road and when you remove it something wonderful happens.

    If you’re ever in western Oregon beers are on me – Cheers!

    1. SHG Post author

      Deal. Better still, we’ll grab some maple bacon donuts at Voodoo in Portland.

      While the law/coding analogy has its flaws, it also has a lot in common. In many ways, law aspired to be coding, but can’t because people aren’t binary and come in way too many flavors. Still, to the extent we can rid the law of its fuzziness so that it’s as clear to all as possible, that would be the sort of thing we should seek to do.

  7. Pingback: Paul Krugman on the new Supreme Court ObamaCare case - Overlawyered

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