The mischief and the statute 5

Is the mischief rule just purposivism?

|The Volokh Conspiracy |

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.


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  1. I still have a lot of problems reading stuff into a statute that the legislature did not see fit to put there. I would much rather see a stronger vagueness doctrine than an open-ended investigation into what legislators were thinking when they passed some law.

    1. Fundamentally, the mistake you are making is focusing solely on the mistakes of the Legislature rather than the larger picture of what the function of courts within the government is.

      The function of courts is to facilitate the government’s functioning. That doesn’t mean they are supposed to roll over- if the legislature violates a clear constitutional rule or passes a hopelessly vague law, of course the courts can invalidate it.

      But short of that, the idea is to help the government work. So if there’s an obvious scrivener’s error, you don’t send the thing back into Congress for a couple of years of deliberation and horsetrading- you correct the scrivener’s error and enforce the statute. Similar with the mischief rule- no legislature is clarevoyant. If you have a good idea of what they wanted, they said it in a reasonable way, but some case comes up that makes the whole thing look ridiculous, you aren’t required to say “duh, sucks to be Congress, guess these parties will just have to live with this terrible injustice”.

      Courts are not the opposing team from the legislature. They are on the same team- the team of making the government function smoothly. Intepretation doctrines that allow courts to make REASONABLE calls to make statutes function are part of that.

      1. Ultimately people following the law have to apply the same rules that the courts do. So if a “scrivener’s error” is obvious to everyone fine.

        But even if ignorance of the law is no excuse, ignorance of the mischief that inspired the passage of the law should be.

  2. I got the mischief
    I got the remedy
    I got the implied statutory remedy.

    1. Superb reference.

  3. I’ll admit to not having yet read the paper, just the blog posts, so I’m responding strictly to what I see here. If you read this, you may conclude I’m just restating what your argument is, but I’m doing it in a way that is intended to reframe it in classic philosophy.

    The discussion you make between mischief and purpose is strongly reminiscent of the Aristotelian distinction between efficient (≈ mischief) and final (≈ purpose) cause. In Aristotelian discourse, this is a fundamental distinction, and allows one to differentiate between a rock that hits me in the head (the efficient cause of my concussion) and the assailant who throws it (the final cause). It separates out the proximate instrument from the agent in this case.

    In this case, it is useful here to distinguish between the mischief that finally prompted law-makers to act and their purpose in acting. The efficient cause is often quite apparent in law (because it will be reflected in the things that the law states) but the final cause may not be at all apparent from the text.

    It seems here that textualists could be accused of ignoring both kinds of cause, and that purposivists might ignore the efficient cause in favor of their understanding of the final cause. This does leave a broad middle ground open for those who are interested in the efficient cause. To use your example of the railroad tracks and “animals,” one can profitably ask “what was the efficient cause for this law?” to exclude worms and stray voles without the unconstrained action that asking only about the final cause could enable.

    It seems that the classical distinction, which has been fundamental in Western philosophy, is similar enough to help bolster your argument. You could also go further and look at C.S. Pierce’s theories of interpretants, which creates some similar distinctions on the end of how you interpret things. That would be more of an undertaking though than a response to a blog post.

  4. Texas has 9 conservative, mostly textualist/originalist Supreme Court Justices. In 2014 we had a 4-3-4 plurality opinion on a statute that requires plaintiffs to file so-called certificate of merit affidavits in lawsuits against certain design professionals. The relatively minor issue was whether third-party plaintiffs suing design professionals, and had to do with a very complicated analysis of whether a plaintiff was not a third-party plaintiff. The plurality opinion determined that a plaintiff was not a third-party plaintiff for the statute. The concurrence, written by now-5th Circuit Justice Willett, reached the same conclusion, although for different textualist reasons. (The concurrence picked up a Justice who agreed with the holding but not the plurality’s reasoning, so that became the holding.) The dissent was authored by Chief Justice Hecht, and is probably one of the best bits of legal writing in Texas jurisprudence. He is generally an originalist and a textualist, but chastised the plurality and concurrence for being too formalist, holding the legislature to a higher standard than the courts would hold themselves, and suggested that the absurdly strict textualist approach risked the Court’s reputation as little more than a contest of “Pharisees at the Temple of Textualism over who is the most devout.” From his perspective, they should have interpreted plaintiff to address a particular sort of mischief, that applied equally to third-party actions as to original actions.

    This year the Texas legislature amended the statute to conform to the Chief Justice’s dissent. The case is Jaster v. Comet II Const., Inc., 438 S.W.3d 556 (Tex. 2014). It’s a great decision, and I plan on using it with my law students.

    1. I mention the case because it is right on this topic. The concurrence and dissent both cite Scalia and Garner. The plurality expressly rejects purposivism (consistent with Texas law) (“[I]t frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law”) and then quotes Scalia’s opinion in MCI Telecommunications (“[We] are abound not only by the ultimate purposes [the Legislature] has selected, but by the means it has deemed appropriate, and prescribed, for the pursuit of those purposes.”). I think it probably speaks to your article’s subject in about ten different ways.

  5. Mischief rule is a principle used for the interpretation of a statute. This principle is used by the courts to determine the intention of the legislators. This principle aims at finding out the mischief and defect in a statute and to implement a remedy for the same…

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