The Volokh Conspiracy

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

The Mischief Rule

|The Volokh Conspiracy |

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.