Writing law is hard. People keep arguing that it shouldn’t be, but that’s because they fail to appreciate that laws intended to be used one way invariably find themselves used in conflicting, unintended ways, because somebody didn’t consider alternative factual scenarios, or shrugged off a variation that would make the law impossible to write.
That would never happen, they tell themselves. It’s implausible, they tell their colleagues. Opponents just want to sink a law that’s critical to saving society, they tell the media. But eventually, reality bites them in the ass and the implausible scenario happens. Oopsie. We never meant for that to happen, which brings little comfort to the poor shmuck burned by inartful law.
There is a relief valve for legislative errors. It’s called the courts. But then, opening the relief valve, letting out the steam, is a matter of choice. One can either adhere to the strict language of the statute, proclaiming that it’s not up to a judge to undo the havoc created by the legislature. The law says so, and foolish and unintended as the law may be, the judge will enforce it.
Or, the judge can see that the legislature failed to take into account a situation where the law is irrational, clearly contrary to what anybody thought would happen when enacted, and say, “I refuse to be a mindless robot, to apply a law in a way that was never, that could never, have been intended. I will not be complicit in harming someone because some lawmaker screwed up and failed to account for the ‘implausible’ situation.” Continue reading
