The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This is installment five in a series of posts about a new paper, The Mischief Rule. One question many readers have is whether the mischief rule is just purposivism. Indeed, Scalia and Garner define the mischief rule as a British term for purposivism, but that is incorrect, both historically and analytically. Here I'll give a few paragraphs on this question from the introduction. But if you want more, there's a subpart of the paper on the distinction between the mischief rule and purposivism, and there's also a subpart on Scalia and the mischief rule (especially in the way he reads Oncale in his "Reading Law" book). As the paper shows in more detail, textualists can use the mischief rule with a good conscience. And textualists should, because the mischief can provide context and occasion for understanding the legislative decision embodied in the text (i.e., as pragmatics, and as suggesting a tacit domain quantifier–the "no beer in the fridge" example from the footnotes).
At any rate, here is a preliminary account of the differences:
Yet the mischief rule has largely dropped out of the discourse of American legal scholarship—why? The most likely answer is simply that the rule is thought to be equivalent to purposivism. But consider a simple theory of action, which is not meant to be philosophically robust but rather to illustrate the distinction between mischief and purpose. There are certain things that spur us to consider acting. Spurred on, we act. But we do so not like a coracle, buffeted by the waves, rudderless and unpaddled. Instead we have reasons for our actions. But the expression "such and such was my reason for acting" is ambiguous. It could refer to the initial cause, the spur to acting. Or it could refer to the aim (or ultimate aim) that I had for acting. Both are, in a sense, my "reason." Yet they can be assigned different locations in this sentence: "Because of a, the action b, so that c." That ambiguity in my "reason" is precisely why the difference between mischief and purpose is usually obscured. The mischief is the spur, the "because of." More technically, for law, the mischief is the problem that precedes the statute and the legal deficiency that allowed it; the mischief is what the statute responds to. The purpose imputed to the legislature is an aim going forward.
There will be instances of convergence between the mischief and the purpose, instances in which the purpose is no more than the removal of the mischief ("because of a, the statute b, so that not a"). Yet there will often be more than that mere convergence; the imputable purpose will often be an extrapolation from the evil to something more abstract. Hart and Sacks are themselves quite clear on this point. They add a crucial step: the interpreter starts with the mischief and then from it infers "the general purpose." That step is significant. It makes the mischief grist for the mill of purpose. That additional level of abstraction is indeed valuable if a judge sees her role as faithfully interpreting a statute in a way that fulfills the legislature's policy aims (a standard purposivist conception). But it would be an error if a judge sees her role as faithfully interpreting a statute so as to carry out the policy embodied in the statute itself (a standard textualist conception).
Because this Article attempts to give the mischief rule a discrete existence, it is of course true that I am sharpening the contrasts between the mischief and an array of adjacent and overlapping concepts, including purpose, the equity of the statute, and so on. What is at issue is not mere legal taxonomy, but rather a critical question about the role of context in legal interpretation. Statutory interpreters of all stripes say that context is important, but textualists, especially, will sometimes in practice limit the relevant context to laws (i.e., other provisions of the same statute, other statutes, and background principles of law). This Article argues for a broader understanding of context that includes the setting of the legal enactments, one aspect of which is the mischief.
Finally, even though I'm not usually including footnotes in this series of blog posts, here is one:
Put differently, it is true not only that statutory language is context-sensitive (i.e., dependent for its meaning on pragmatics as well as semantics, see Bach, supra note 6), but also that it is sometimes context-sensitive in a very specific way: to understand the words, the interpreter needs to understand the mischief.