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.

Comments

[Dan Schiavetta]

A historic case of mischief: Loewe v. Lawlor, construing the Sherman Antitrust Act against labor unions.

[NToJ]

Professor Bray,

Texas also follows a version of the mischief rule:

"The cardinal rule in statutory interpretation and construction is to seek out the legislative intent from a general view of the enactment as a whole, and, once that intent has been ascertained, to construe the statute so as to give effect to the purpose of the Legislature. It is recognized that a statute is to be construed with reference to its manifest object, and if the language is susceptible of two constructions, one of which will carry out and the other defeat such manifest object, it should receive the former construction." Citizens Bank of Bryan v. First State Bank, Hearne, 580 S.W.2d 344, 348 (Tex. 1979).

A lot has happened to Texas jurisprudence since the 70s, and the state has moved much more towards a pure textualist approach, disavowing legislative intent unless it can be derived explicitly from the text. But the nine textualist Supreme Court Justices haven't always agreed on just how textualist they should go, leading to interesting spats in close cases. For an example that may be useful for teaching the Mischief Rule to your students or others, there's a plurality opinion from 2014 in which a 4-3-4 Court divided over whether a former version of a statute which required "the plaintiff" to file "with the complaint" a so-called certificate of merit affidavit in claims against design professionals. At issue is whether "the plaintiff" and "complaint" applied to third-party plaintiffs or cross-claimants. Since Texas doesn't use "complaint" at all (plaintiffs file petitions in state court, not complaints as they would in federal court), the issue was rather difficult to navigate. The 4 justice majority included current 5th Circuit Justice Willett, who also wrote a 3 justice concurrence (joined by one justice who did not join the plurality). Chief Justice Hecht wrote a very entertaining dissent, invoking Texas's manifest object rule, and accusing the other justices of a "Rabbinic fixation with individual words" that put the Court at risk of "being viewed as conducting a contest among the Pharisees in the Temple of Textualism over who is the most devout." Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 575 (Tex. 2014).

I've never thought there was a real tension between purposivism and textualism.

[Mark Leen]

Sounds like Washington State's rule regarding extrinsic evidence in interpretation of a contract. Extrinsic evidence can be relied on whether or not the words are ambiguous in order to understand what the words mean. Subjective intention, however, is not relevant.

[Alpheus W Drinkwater]

Downloaded it and looking forward to reading it. Thanks!