The mischief and the statute 3

The mischief, pragmatics, and legislative history

|The Volokh Conspiracy |

This is the third in a series of posts about The Mischief Rule. So what is the mischief rule? The next part of the introduction addresses that question. Again, for the footnotes, read the article:

This Article reconsiders and reevaluates the mischief rule. It argues that the mischief rule can help an interpreter give a better account of what the legislature has actually decided. The reason is inherent in how language works: bare words are not always enough, for there may be facts an interpreter needs to know to make sense of those words. In technical terms, the interpreter needs not only semantics but pragmatics. It is therefore no surprise that courts are continually applying the mischief rule even without knowing it. Nevertheless, the rule has been widely misunderstood. It was celebrated by Henry Hart and Albert Sacks, who found in it the roots of purposivist interpretation, and Justice Scalia rejected it for that very reason. But the story is more complicated and more interesting.

The recent literature on the subject is surprisingly diffuse. Bill Eskridge has considered the mischief rule in a larger analysis of statutory interpretation at the American Founding. Peter Strauss has considered it in an argument that courts should interpret statutes in light of their "political history." John Manning has noted "the complex questions surrounding this traditional tool of construction," and warned of "uncritical application." More recently, this year, Anita Krishnakumar has noted that the Roberts Court is increasingly relying on this principle, in preference to the canon of constitutional avoidance. And Andy Koppelman has written that to exclude something from the coverage of a statute if it is outside the mischief is "the most legitimate" of the "subtractive moves" for an interpreter. Yet despite the widespread references to the mischief rule, the only sustained modern treatment is Daniel Frost's argument that it points to a useful middle way in constitutional interpretation.

What is the mischief rule and what does it do? It directs attention to the generating problem, which is public and external to the legislature, something that can be considered observable in the world. The mischief might be indicated in the statute itself or be established by judicial notice, evidence of public debate preceding enactment, or legislative history. Nevertheless, there is no necessary relationship between (a) considering the mischief and (b) consulting legislative history. In the years when English courts applied the "Hansard rule," refusing to consider debates in Parliament, they nevertheless continued to apply the mischief rule.


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  1. The Sound and the Fury, Part 3 – Too Sound, Too Furious

  2. Professor Manta, in an earlier post today, is apoplectic that there are people who see jus soli citizenship as something that might be changed (which actually would bring us into the global mainstream, where unrestricted jus soli birthright citizenship is rare outside the Western Hemisphere).

    So viewing the 14 th amendment with mischief glasses on, it is clear that the problem that the 14th was created solve was citizenship for former slaves(citizenship denied a decade earlier by the SCOTUS in dred Scott decision). The 14th was needed to essentially overturn dred scott so that we would not have millions of stateless persons thrust immediately back into de facto slavery.

    Is there any evidence that the 14th was imagined to forever grant citizenship to anyone who wandered across the border and give birth? Probably not. And the rule of mischief seems to place the burden of proof on those who wish to expand the 14th to mean something that was never dreamt of back then.

    1. “Expand” the 14th? Rather the opposite, that those who wish to shrink it after 150 years bear the burden of proof.

    2. It’s pretty clear from the debates in Congresss that that’s exactly what the framers of the 14th Amendment had in mind.

    3. This is a good example of my concerns about this rule. Gasman disagrees with the 14th Amendment. So he wants to pretend that it can’t possibly mean what it says, it should really mean the policy he wants, and he seeks to use the mischief rule to limit it to the policy he approves of and exclude the policy he wants.

      I think this is as good an example as any of how badly attempts to apply the rule can lead astray when people disagree on policy and the court’s pretend that their preferred policy is what the law is “really” about and what the legislature actually said is outside their policy-preferences based concept of “the mischief.”

      1. But Gasman is just wrong about the intent of the 14th. If you assume bad faith in their application suddenly a lot of rules become bad.

        1. But isn’t the “mischief” rule a method of inferring intent? This seems like a fairly straightforward application of the rule: Why should a prevision designed to secure citizenship for freedmen be construed to grand citizenship to the children of illegal immigrants?

          But it’s a bad rule.

          1. It’s inferring purpose, not intent.

            And the purpose, as discussed above, was not just about blacks.

            And those who posit otherwise are letting their anti-immigrant wishes author their reality.

    4. “Mischief” give you quite a bit of wiggle room. You could just as easily that the “mischief” was that some people born in the country weren’t considered citizens. Or you could argue that the mischief that the 13th amendment was designed to prevent chattel slavery of blacks, so it shouldn’t apply to the chattel slavery of Asians, for example.

  3. I think the rule has its place, especially as a rule of length in criminal statutes, as vague words can sometimes have application far beyond anything that may have been intended.

    A difficulty comes when there is disagreement about goals, either when the statute itself represents a compromise between conflicting goals, or when judges disagree with the law’s original policy. In these cases, the rule can become a tool not for effecting legislative intent but for eviscerating it.

  4. If you assume bad faith in their application suddenly a lot of rules become bad. Bandar QQ Online

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