The Volokh Conspiracy

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The mischief and the statute 2

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


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."