The Volokh Conspiracy

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

The Mischief Rule


If you're interested in statutory interpretation–including the relationship of text and context–you'll want to read The Mischief Rule. It has just gone to print, and you can find the final version here.

Although this article is for everyone, textualists and non-textualists alike, it is especially an argument directed at my fellow textualists–an argument that textualism should not be narrowed to an inquiry about words alone, as if the law is simply words on a page, words that can be interpreted without context. Relatedly, it is an argument that context is part of how we decide the meaning at step one–context is not something to invoke only after a statute has been found ambiguous.

The kind of crabbed textualism that rejects the mischief rule is a dangerous path. Although plenty of people will disagree with me, I think that kind of textualism ends in literalism. And a literalistic textualism will not last.