The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

The mischief and the statute 6

Context and the statute/Constitution difference


This is the latest in a series of posts about The Mischief Rule. The following extract focuses on some of the implications of reconsidering the mischief rule. Since some readers have wondered about the Constitution and the mischief rule, and about the connection with pragmatics, I'm including two footnotes here (renumbered as "*" and "**"). Enjoy!

Consider three implications of taking the mischief as part of context.

First, there is less pressure on the statutory language. Language never fully expresses intention, and the inadequacy of legal language has been remarked upon since the days of Aristotle. But that inadequacy is partially ameliorated by the mischief rule's stopping-point and clever-evasion functions. Both offer a certain kind of solace to the legislator. One offers some assurance that her decision today on will not be read as a decision tomorrow on y. (Sufficient for the statute is the evil thereof.) The other offers some assurance to the legislator that her statute will not be circumvented by clever tricks.

Second, there is less surprise and more notice. Of course the functions of the mischief rule allow, indeed require, judgment, characterization, and subjectivity on the part of the interpreter. Like other elements of context, the mischief rule does not reduce discretion; it does not exclude interpretive options, and it may even expand them. But if the interpreter considers the mischief as part of the context for the statute, the enacting legislature is less likely to be surprised by the effect given to its work. In CSX, Yates, and Zarda, for example, the application of the mischief rule would arguably make the reach of the statute less surprising—not just to the enacting Congress, but also to the reasonable reader at the time of enactment. Although the optimal amount of surprise for the enacting legislature and the reasonable contemporaneous reader is probably not zero, it is also not massive: the mischief rule keeps the subsequent surprises smaller than they otherwise would be.

Finally, thinking about the mischief as part of context highlights a pivotal step in legal interpretation: the construction of ambiguity or non-ambiguity. Once the interpreter has determined that a text is ambiguous, a host of canons and interpretive considerations come into play. Should the mischief rule be considered one of them? Or should it be part of the conscientious interpreter's "initial reading," which might determine whether the text is ambiguous?

An example of why this choice matters is Bond v. United States, in which the majority opinion of Chief Justice Roberts is pervaded by an argument that the statute, read in the context from which it arose, was "about" something. That knowledge of what the statute was about—its mischief—led the Court to treat it as ambiguous. In a separate opinion, Justice Scalia refused to read the text in light of the concerns that led to its enactment. To put his critique in a pointed form, we could say he thought the text was being put on a Procrustean bed, with the interpreter tightening or stretching the text to align with the mischief. But that is to treat the text as logically prior to its context, as if it should be (or even could be) read without a context. To the contrary, reading the text in its legal and temporal context is not an act of violence; it is a step toward understanding. Context helps the interpreter see that there is a choice about the scope of the statute, and it guides the choice.*

The mischief rule is a legal instantiation of a common-sense point about all interpretation. To understand statement x, the interpreter wants to know what preceded it. That is not just other statements, but also the situation in which the statement was made. To understand a line of dialogue, it is helpful to know the preceding line of dialogue. It is also helpful to know the situation in which the characters find themselves, to know whether this line of dialogue was spoken in response to seeing a live shark or a rubber duck. Although the mischief rule has distinctive qualities that are relevant for law, as discussed below in Parts II and III, the underlying intuition will recur as long as human beings are interpreting texts.** It is therefore no surprise that even as the concept of the mischief has receded from U.S. legal scholarship, the basic intuition remains pervasive in judicial interpretation, even though it is insufficiently developed and inadequately understood.


* This is a well-trod path in constitutional interpretation. In Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833), for example, Chief Justice Marshall did not find the text unambiguous and stop, saying, "What part of 'nor shall private property be taken' do you not understand?" Instead he relied on legal context (the "no state shall" pattern from Article I) and temporal context ("the history of the day" showing the concern with federal abuse of power), which together had the effect of both showing and resolving the textual ambiguity.

Nevertheless, there are reasons to distinguish the Constitution from statutory provisions. On the one hand, knowing the mischief may be even more necessary for a constitutional provision, given its more spare text (hence routine use of the mischief for constitutional provisions even by those who reject it for statutes). On the other hand, one might think that the mischief should have less weight in determining the meaning of a constitutional provision, because the Constitution is meant to last longer than a statute. See Zarda v. Altitude Express, Inc., 883 F.3d 100, 165 (2d Cir. 2018) (Lynch, J., dissenting). For discussion of constitutional provisions and their "paradigm cases," see Jed Rubenfeld, The Paradigm-Case Method, 115 Yale L. J. 1977 (2006). For a response to an earlier form of Rubenfeld's argument, see Michael W. McConnell, Textualism and the Dead Hand of the Past, 66 Geo. Wash. L. Rev.1127 (1998).

** The general point is that the meaning of some expressions is dependent on context. See generally Bach, supra note 6 (distinguishing semantics and pragmatics). More specifically, the meaning of an expression on a particular occasion may depend on tacit domain quantifiers. Whether such quantifiers should be classified as pragmatic is debated, e.g., Stanley, Jason & Zoltan G. Szabo, On quantifier domain restriction, 15 Mind & Language 219 (2000). Regardless, the intuition is easily grasped:

If I were to open the fridge in search of beer and say "there is no beer," what you would probably understand me to be saying is that there is no beer in the fridge. In other words, you would take me to be tacitly restricting the domain of my quantifier to things in the fridge.

Green, supra note 43, at 171 (quoting Daniel Z. Korman, Objects: Nothing out of the Ordinary42 (2015)). For discussion of these points in relation to "contextual meaning" and "reasonable meaning," see Richard H. Fallon, Jr., The Meaning of Legal "Meaning" and Its Implications for Theories of Legal Interpretation, 82 U. Chi. L. Rev.1235, 1246-1247, 1260-1262, 1303 (2015).