The Volokh Conspiracy

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The mischief and the statute


The Supreme Court has had a number of major statutory interpretation cases in recent years. These include Yates (is a fish a "tangible object"?) and Bond (was a contaminated doorknob a use of "chemical weapons"?). This term, the big statutory interpretation case is Bostock, consolidated with Zarda. (The filings are collected at the SCOTUSBlog case page.)

I have just posted a new draft paper that discusses Yates, Bond, Zarda and other cases. It is called The Mischief Rule, and (in my view) it poses challenging questions for statutory interpretation, especially about the role of context in understanding the text. Here is the abstract:

The mischief rule tells an interpreter to read a statute in light of the "mischief" or "evil"—the problem that led to the statute. The mischief rule has been associated with Blackstone's appeal to a statute's "reason and spirit" and with Hart-and-Sacks-style purposivism; it was rejected by Justice Scalia. But the rule is widely misunderstood, both by those inclined to love it and those inclined to hate it. This Article reconsiders the mischief rule. It shows that the rule has two enduringly useful functions: guiding an interpreter to a "stopping point" for statutory language that can be given a broader or narrower scope, and helping the interpreter prevent "clever evasions" of the statute. The mischief rule raises fundamental questions about the relationship of text and context, about the construction of ambiguity, and about legal interpretation when we are no longer in "the age of statutes." In many of our present interpretive conflicts, the mischief rule offers useful guidance, for textualists and purposivists alike.