What is “absurd” in regard to any auction law? What is absurd in regard to any law? Let’s start with this: Do legislators (state/national) create laws which do not anticipate all circumstances? They do.
In Veronica M. Dougherty’s paper cited below, she notes this passage:
The same common sense accepts the ruling, cited by Plowden, that the statute of 1st Edward II, which enacts that a prisoner who breaks prison shall be guilty of felony, does not extend to a prisoner who breaks out when the prison is on fire-‘for he is not to be hanged because he would not stay to be burnt.’
- Veronica M. Dougherty authored this paper in 1994 titled “Absurdity and the limits of literalism: Defining the absurd result principle in statutory interpretation” which is here: https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1523&context=aulr.
- Cass R. Sustein wrote an analysis in 2002 titled “Avoiding Absurdity? A New Canon in Regulatory law (with notes on interpretive theory)” which is here: https://pdfs.semanticscholar.org/6f5f/21ba80be9929e4834722a1948cc7ba78cdb1.pdf.
- Glen Staszewski wrote a paper in 2006 titled “Avoiding Absurdity” which you can read here: https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1472&context=ilj.
Does everyone in the legal community agree? As we’ve noted for years, rarely — if ever — do all attorneys, law professors, judges and the like agree on any particular topic. In light of auctioneers — for the most part — being conservative textualists, how does that affect interpretation?
For example, Linda D. Jellum authored a paper in 2011 where she holds “Absurdity and textualism are simply incompatible; indeed, the absurdity doctrine undermines the very foundation of textualism” and questions the widespread use of the absurdity doctrine:
- Her paper is here: “But That Is Absurd!: Why Specific Absurdity Undermines Textualism” https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1188&context=blr.
It is clear to me that in the legal community, it is generally held that courts can interpret laws with a goal of avoiding “absurd” results. However, what is an absurd result? For that matter, what’s an unconscionable result? What’s an adhesionary result? What’s a manifestly unreasonable result?
In my over ten years as an auction expert witness, I’ve been asked by dozens of attorneys what I consider to be “absurd,” “unreasonable,” “unconscionable,” and what I’ve observed is that people with many years within the industry — and plugged into current trends and methodology — are best to answer such questions.
We wouldn’t depend upon a football coach to analyze an auction principle just like we wouldn’t ask an auctioneer how to coach football players. Auctioneers interact with sellers, bidders, buyers and have a unique perspective when it comes to what is absurd in our industry and what is not.
However, I’m a well-known advocate of free speech. Just as I provide my opinion, so can you. We’ve wrote about that topic many times including here: https://mikebrandlyauctioneer.wordpress.com/2018/08/15/auctioneers-facebook-censorship-and-fake-news/ and here: https://mikebrandlyauctioneer.wordpress.com/2019/01/23/auctioneer-opinions/.
Specifically, in an absolute auction must an auctioneer accept a 1 cent increase (offer) over the previous bid? In an absolute auction, property must be sold (if a bid is made within a reasonable time) to the highest bidder. Is $500.01 more than $500.00? Is accepting a 1 cent higher bid absurd?
What is the likelihood of two bidders bidding $500.01, $500.02, $500.03 … $500.11 … $500.36, $500.37 … $500.82? As almost every auctioneer knows — not likely. In fact, it’s far more likely one or both bidders raise their increments to outduel the other. For an online auction, could software manage such bids? Easily.
In fact, I find the chances of bidders bidding in 1 cent increments for any prolonged period of time to be just as absurd as some consider the law’s textual interpretation itself to be absurd. In other words, is it acceptable to use an absurd example to assert a law is absurd as written? Were there prison fires in the 1300’s?
Mike Brandly, Auctioneer, CAI, CAS, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, RES Auction Services and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College, Executive Director of The Ohio Auction School, an Instructor at the National Auctioneers Association’s Designation Academy and America’s Auction Academy. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by the The Supreme Court of Ohio for attorney education.