The mischief and the statute 2

Does the statute mean that trains have to stop for squirrels?

|The Volokh Conspiracy |

In a post earlier today, I mentioned a new paper on statutory interpretation called The Mischief Rule. Now, in a series of posts, I'll blog parts of the introduction with framing comments. You might be interested in this if you're a lawyer or law student who cares about statutory interpretation (i.e., if you're a lawyer or law student!), if you're a linguist interested in legal examples of pragmatics or tacit domain quantifiers, or if you're following the Supreme Court's docket and especially the Title VII case. If you want the footnotes, go to the article.

So here goes. The introduction starts with an old case, Nashville & K. R. Co. v. Davis, 78 S.W. 1050 (Tenn. 1902). We can call it the stop-the-train case. It's especially hard for a textualist who rejects the mischief rule (e.g., Justice Scalia), but not for a textualist who embraces the mischief rule:

A Tennessee statute imposed duties on railroad engineers. If a railroad engineer found an animal or obstruction on the tracks, the statute required "the alarm whistle to be sounded, and brakes put down, and every possible means employed to stop the train and prevent an accident." But what counted as an "animal" on the tracks? Cows and horses, yes. But what else? Did all the trains in Tennessee have to stop for squirrels?

The stop-the-train case poses difficult questions for some interpretive theories, especially textualism. The text does not identify a stopping point in what counts as an animal. Nor is there a dictionary definition that will include cows but exclude squirrels. Is a textualist interpreter duty-bound to say that trains have to stop for squirrels?

There is a legal rule that allows the interpreter to escape this impasse. The mischief rule instructs an interpreter to consider the problem to which the statute was addressed, and also the way in which the statute is a remedy for that problem. Put another way, the generating problem is taken as part of the context for reading the statute. In the real stop-the-train case, the court found the mischief to be especially train derailments; the court accordingly held that three domesticated geese were not "animals" within the meaning of the statute. In the court's view, failing to consider the mischief would have meant that trains had to stop even for "[s]nakes, frogs, and fishing worms."

Advertisement

NEXT: Citing Safety, Some Students Oppose Removal of UT-Austin's 'Free Speech Zone'

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. the court found the mischief to be especially train derailments;

    I’m unconvinced by this. Why isn’t some of the mischief killing or injuring farm animals, (or wild animals for that matter)? If the concern is farm animals then the geese would count, as would chickens.

    Besides, did the legislature really need to pass a law to get engineers to stop if they saw a cow on the tracks? If the legislature is taking sides in a disagreement then it would be animals unlikely to cause a derailment that would be of concern, because that’s where there is conflict between the owner and the railroad. Both sides want the train to stop for a cow.

    1. The derailment aspect seems fishy, so to speak, because no train engineer wants to be derailed in the first place; you may as well pass additional laws requiring stopping for washed-out track or missing bridges, for all the extra good they would do.

      Seems like the legislature was coming down on the side of farmers. Is this like the old (Coase?) comparison of trains starting fires in farm fields?

      1. By that reasoning you wouldn’t need most traffic laws, either.

        But I do agree it was probably more to do with protecting farm animals.

        1. You don’t need traffic laws to stop people from driving into walls.

          You do need them to do things like regulate rights of way, set safe limits on speed, make rules about which side of the road to drive on, etc., where some – lots – of drivers aren’t going to behave in the general interest. People do speed through residential neighborhoods, for example, among many other things.

          A cow on the tracks is different. The engineer sees it, and really doesn’t want to run into it.

          1. If hitting a cow was likely to derail a train, I’d agree, but it isn’t. Takes hitting a whole herd of them at once to accomplish that.

            I’m reasonably convinced this was about avoiding costs to farmers.

            1. I’m reasonably convinced this was about avoiding costs to farmers.

              Me too. That’s more or less what I said to begin with.

      2. Very Coasean wrt farm animals.

    2. A cow isn’t going to cause a derailment unless the train is on the verge of derailing anyway; A typical train engine runs upwards of 200 tons, a cow maybe 1 ton. Trains do use devices on the front to deal with large animal collisions, but mostly to avoid making a mess of the undercarriage.

      1. Trains have derailed from hitting large animals. They have also derailed from hitting cars stalled at crossings, and there’s not that much difference in weight. It might not be the common result, but it has happened, and the consequences are too high to brush off as unlikely.

        1. The train that killed Jumbo the elephant in 1885 was derailed by the collision, but then Jumbo weighed nearly seven tons.

  2. “But what counted as an “animal” on the tracks? Cows and horses, yes. But what else? Did all the trains in Tennessee have to stop for squirrels?”

    It can take more than a mile to bring a freight train to a complete stop using the emergency breaks. A train engineer wouldn’t be able to see a squirrel at that range. Nothing much smaller than a horse is going to be readily identifiable at that distance.

    1. The case was decided in 1902. Presumably, the law pre-dated that – maybe by a fair bit. Freight trains back then did not travel as fast as modern trains – certainly nowhere close to the 55 mph used in that link.

      That said, it’s an objection only in degree. A train engineer in 1900 still wouldn’t have been able to see a squirrel in time to stop. A dog? Maybe. A cow or horse? As you say, much more likely.

      1. “Freight trains back then did not travel as fast as modern trains”

        This is true, but not necessarily dispositive of the stopping distance issue. There are other issues, such as the quality/nature of the train’s breaks.

    2. If there is a reason to limit the reach of the statute, it seems that the absurdity doctrine would be a better fit, even if its a much more squishy standard.

      1. “even if its a much more squishy standard.”

        I see what you did there.

  3. Laws shouldn’t require extrinsic evidence for the plebs to interpret them. The mischief rule demands that every reader of the law delve into legislative history, and maybe general history along with mind-reading. Legislators should fix laws, not judges.

    1. Of course laws “shouldn’t” require extrinsic evidence; in an ideal world laws should be well-written by capable legislators. They should come with preambles and Whereas clauses, and their texts should be unambiguous. But in the real world the laws can be a mess, and judges do get called in.
      Putting my linguist hat on, I’d say this is kind of like a conversation beginning with a third person pronoun, He, She, or They. It’s not immediately clear who the pronoun refers to, but in fact the speaker is recalling a conversation we had yesterday, and the speaker has been thinking about the matter more or less continuously. The antecedent is obvious to them, but it only becomes clear to me after we get a few sentences in and the subject comes back to me.
      Prof. Bray spoke of ‘domain quantifiers.’ In essence, that’s asking “What were we talking about?” And if we know what we were talking about, then whatever was said following from that makes sense and can be interpreted in that light. Since the Prof. says the law was indeed intended to be about prevention of derailments (and not, as most of us are jumping to conclude, protection of livestock) I’ll be interested to know the legislative history .

      1. “…Putting my linguist hat on, I’d say this is kind of like a conversation beginning with a third person pronoun, He, She, or They. It’s not immediately clear who the pronoun refers to, …”

        . . . not immediately clear WHOM the pronoun refers to . . .”

        [Only because we’re putting on our linguist hats.] 🙂

    2. “Laws shouldn’t require extrinsic evidence for the plebs to interpret them. The mischief rule demands that every reader of the law delve into legislative history, and maybe general history along with mind-reading. Legislators should fix laws, not judges.”

      This isn’t how an actual legal system works. Judging isn’t a matter of playing “gotcha” with the legislature. It’s a matter of applying the law in a manner that is consistent with justice. If judges can relatively easily discern statutory intent and a literal interpretation would result in an injustice, what’s the point of refusing to give the statute a more reasonable interpretation? You aren’t actually punishing the legislature for its bad work. You are punishing a completely innocent party.

      1. Also punishing the voters who probably has general goals in mind when they voted for their legislator, on the expectation that the statutes they passed would further those goals. Often those general goals require complex solutions. When the legislature arrives at complex solution to a complex problem based on a desire to fulfill general goals, the statute inevitably will have some ambiguous, contradictory, or confusing terms. The voters presumably would not want judges to take overly literal interpretations of provisions that result in the opposite of what they wanted to do.

        1. Of course they don’t. Really, nobody wants slavish adherence to literal text in the face of all reason, evidence, and notions of justice, other than a few conservatives who have decided that if judges have any discretion at all, they will inevitably make horrible decisions (and that somehow denying this discretion will lead to better decisions).

          The problem is, Scalia was a great salesman, and he sold this snake oil to the conservative movement.

          1. The problem is, people caricature Scalia:

            “I am not a strict constructionist, and no one ought to be — though better that, I suppose, than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably.”

            1. David:

              Scalia certainly said things like that, but he also said, MANY times, that his job was to follow the law as written and to simply apply the text of the law, whatever it might say and whether he thought the result was good or bad.

              Indeed, these sorts of rhetorical conflicts are part of the reason I call it snake oil. In the real world of judging, nobody believes in pure textualism and nobody believes in pure originalism (which is actually impossible anyway, due to the level of generality problem). But while liberals tend to be RELATIVELY truthful about this- “judging is difficult, you have to follow the law while doing justice, it isn’t improper to take into account policy”, conservatives often just go out and pretend, especially when talking to a mass audience rather than lawyers or law professors, that they are just the umpires calling the balls and strikes through the mechanical application of preexisting rules. And then you get a lot of people out there in the real world who believe the spin, and believe the difference between conservative judges and liberal judges is that conservatives follow the law and liberals ignore it.

              1. You’re full of it. Justice Brennan, after retirement, admitted that he first decides what outcome he desires in a case, and then figures out how to use the law to achieve that end. This is what the leftist judges all do, he was just the only one to actually admit it.

  4. I hadn’t heard of the Mischief Rule before, although I’m familiar with legislative intent interpretations

    An interesting note, unde a mischief rule interpretation not only would the birthright citizenship clause of the 14th amendment not apply to illegal immigrants, it wouldn’t apply to anyone anymore. Since the “mischief” it sought to rectify was to ensure the recently-freed slaves could not be denied citizenship, and there are no former slaves left, it need not apply to the descendants of the freed slaves since they have enough family history in the US for jus sanguinis citizenship law to apply

    1. That argument doesn’t work, because the slaves were seen as an example of a more general problem, which is what happens to the polity when you have a large group of people with no rights under law.

      Put another way, part of the fear (and given history, it turned out to be a reasonable one) was that the South would use all sorts of legal categorizations to reenact slavery without calling it slavery. By saying “everyone born in the US is a citizen”, it prevented any such runaround, at least on the issue of citizenship.

      1. I don’t see where this disputes my point, “everyone born in the US is a citizen” need only apply to the first generation of freed slaves, since every subsequent generation gains citizenship under existing jus sanguinis laws.

        That’s why they had to create the jus soli law to begin with, since slaves (and blacks in general) weren’t citizens, they couldn’t pass citizenship on to their children under the existing laws, but once citizenship is “injected” into the family line, jus sanguinis is sufficient. The “mischief” has been resolved

        And FWIW, I’m just playing devil’s advocate here, I don’t think we should be trying to eliminate birthright citizenship for anyone, including illegal immigrants

        1. “I don’t see where this disputes my point, “everyone born in the US is a citizen” need only apply to the first generation of freed slaves”

          No, because it was intended to apply to any possible situation where a state legislature might try to exclude a large group of people born in the US from the polity. Not just one group of former slaves.

          It’s not mischief when a legislating body says “X is an example of a larger problem that could manifest itself in a variety of different ways, therefore we will pass really broad language”.

          1. re: “because it was intended to apply to any possible situation”

            Objection. Asserted without evidence. What is the factual basis for your assertion of that much wider statement of intent?

            1. Objection. Asserted without evidence. What is the factual basis for your assertion of that much wider statement of intent?

              Well, for one thing, if their goal were simply to make freed slaves citizens, they could have written a much narrower provision: “All freed slaves are citizens.”

              For another, they debated the amendment, and they discussed how it would affect other groups. Nobody said, “Hey, wait a minute; all we’re trying to do here is make blacks citizens.”

              1. But “all freed slaves are citizens” would include foreign slaves just off the boat.

                1. But “all freed slaves are citizens” would include foreign slaves just off the boat.

                  The slave trade had been banned almost six decades earlier.

                  1. “The slave trade had been banned almost six decades earlier.”

                    Quibble: The importation of slaves (international slave trade) was banned almost six decades before the ratification. However, there was still a quite healthy domestic US slave trade going on, at least up to the start of the Civil war, less than a decade before the ratification of the 14th amendment.

                  2. So what? That doesn’t change the fact of someone’s having been imported in violation, nor of having been imported legally later under CSA laws.

  5. I’ve yet to read the article (and doubt many here have either) and I hope you the article answers some of the critiques raised here. On its face, the Rule would seem an open invitation to using legislative history and adopting whatever “evil” one thinks the statute might/could/should address. A textualist could have an easy time in concluding that an “animal” is indeed any animal, including noble squirrels. And if the legislature has a problem with that, it can amend the law.

    A textualist could parse “animal or obstruction” to mean that non-obstructive animals must be contemplated as stop-worthy. And then how do we square that with the supposed mischief that appears aimed only at obstructive animals?

  6. Except that the lone squirrel lover in the legislature cast the deciding vote solely because he read the statute’s text and saw that it would protect squirrels. Now some unelected judge has come along and changed the text to a form that the squirrel lover would not have voted for. Mischief indeed. This echoes the problem with legislative history in general (of which Justice Scalia was no fan) — legislators notionally vote for the language of the statute, not the language of the staff report. Even if many don’t bother to read the statute, those who do should not be disenfranchised because some judge decides she knows better.

    1. Yeah, but that squirrel loving legislator only did so because of an idiosyncratic reading of the Bible, which renders the law an unconstitutional establishment of religion.

      1. Who cares what his reason was. The vote should still count.

        1. Précisément, mon ami.

          I thought it was a sufficiently absurd joke.

          Admittedly it echos complaints about lawmakers who express religious reasoning.

          Unless it’s Buttigieg repurporsing religion for liberal policy goals.

  7. Textualism seems to be playing chicken with legislators, which is funny in this context. You want to make legislators make sense, so you allow hell when they don’t? Or you flinch first, and then the hell is on you as a judge?

    I defy anyone to read the definitions in food and drug law and consider the consequences of textualism there. Seems legislators have tended to write (and then boilerplate, considering federal, state, and even foreign) sweeping definitions that they may not even have realized were sweeping, because they can’t really define things precisely, and then assume the commonness of common sense and legislative history in having them interpreted; it comes out pretty damn arbitrary. “Structure or any function”, really? That’s a big one, but there are many others. Sometimes the exceptions are as sweeping as the ostensible inclusions, to where it’s a picnic for food and drug lawyers.

  8. I haven’t read the article, but isn’t the mischief here identified by the text of the statute: “prevent an accident”? Thus, why wouldn’t it be a perfectly legitimate textualist analysis to say that in the context of the statute “animal” means an animal that could cause a train accident? Nothing in that analysis requires one to go beyond the text of the statute.

    1. “Thus, why wouldn’t it be a perfectly legitimate textualist analysis to say that in the context of the statute “animal” means an animal that could cause a train accident?”

      Except that kind of renders the statute moot against modern freight trains. Short of a herd of elephants, a modern freight train hitting an animal will make a mess, but it’s not going to have any impact on the train itself. In fact, an emergency stop to avoid hitting an animal is more likely to cause a derailment than hitting the animal would.

Please to post comments

Comments are closed.