Mischief Before Ambiguity

Last week I was driving and saw a sign that said "Speed Limit 20 MPH When Children Present." I was driving between 30 and 35 mph, which was fine unless the lower speed limit was in play. But was it? I looked ahead on both sides of the street and saw no children. But there were children in my car! Were children "present"?

I think this illustrates two different approaches to the mischief rule. This is the classic rule of statutory interpretation that directs interpreters to consider the problem precedent to the statute--the "mischief" or "evil" toward which the statute was directed--as part of its context. I explore this rule in a recent paper called The Mischief Rule, and I argue that it should be embraced by textualists.

There is one key point on which readers of the article have divided. I argue that the mischief rule is not just an ambiguity-resolving device--that is, you don't just consider the mischief after you've read the statute and found it ambiguous--but instead you consider the mischief ab initio, both to help you see if there is an ambiguity and to resolve it (as in Bond). Some readers have found that a step too far (e.g., the excellent response by recent Notre Dame grad Timothy Bradley called Getting into Mischief: Reflections on Statutory Interpretation and the Mischief Rule).

But I think the speed limit sign nicely shows why the mischief helps us spot ambiguity, not just resolve it. On the face of the sign, there is no ambiguity. What part of present do you not understand, we might say? The children in the car are just as present as children outside the car, and nothing on the sign restricts the contours of presence to being outside the car. On the other hand, we all know what the mischief is: driving too fast when there are kids, especially when there are lots of kids around a school, increases the risk that the driver will hit one of the kids.

One could hypothesize that the mischief is "kids in the car might be hurt if there's an accident," but we all know that's not the mischief. And the sign shows that to us: if that were the mischief then the speed limit would be different if there are kids in the car (like the highways that have different speed limits for cars and trucks), not just in this one place but even after the driver kept going through it. But the signs are put around schools and perhaps other places where there are likely to be lots of little kids outside the car. We know the mischief. And once we know the mischief, it's clear that there are two ways to read the sign: "20 mph if kids are around outside the car" or "20 mph if kids are around inside or outside the car." And we know the former one fits the mischief.

It's taken longer to explain this in a blog post of course, but it was just a second or two to work through this in my mind--I saw the sign, I knew the mischief, I saw no kids outside the car, and I kept my foot on the gas pedal. Just another day in the life of someone reading texts with the mischief rule.

Comments

[Larvell Blanks]

It seems to me that your hypothetical is a textbook example of ambiguity. “Present” has no meaning other than “present in a particular place,” and the sign doesn’t tell us which place that is — in the street, in the car, etc. So you have to resolve the ambiguity.

[Michael P]

Can someone accused of violating a law appeal to ambiguity when neither the text nor the context make it clear what mischief is being addressed?

[Krychek_2]

Theoretically yes, although in practice courts will resort to any possible argument -- sometimes even a completely ridiculous one -- to show that there is no ambiguity.

[Mr. Bumble]

...of course. Guilty; pay the clerk.

[David Nieporent]

Yes.

[Ruqt]

An unseen child runs into the road chasing a ball; clearly "present" if unseen. 35 mph driver: Judge, I" saw the sign but not the child."
Judge, "Did the sign put you on notice that children were likely to be present?"
Professor Bray, what say you? Do you want to argue that the sign was not proper notice or the speed limit improperly signed?

[MatthewSlyfield]

"Judge, "Did the sign put you on notice that children were likely to be present?""

Because if that was the intent, why is the sign itself conditional? The governing authority could just as easily unconditionally lower the speed limit in areas where children are likely to be present.

[Ruqt]

Your Honor " The Governing Authority is responsible for the child's injury."

[Mr. Bumble]

Seems like you would need one of the signs which were posted for certain road work:

THIS ROAD LEGALLY CLOSED

FOLLOWED BY A DOZEN OR SO LINE OF SMALL PRINT THAT NO ONE COULD READ FROM A MOVING CAR.

[santamonica811]

Ha. Small world. I noticed this same sign, for the first time, literally yesterday, as I drove on side streets, past a school, to run an errand. What made me pay attention was that, at the moment I was passing the sign, (a) there were no kids around, as far as I could tell, but (b) there was a uniformed crossing guard at the intersection, who was intently watching me drive through the intersection. (35 mph limit normally; 20 mph when kids are present).

I think there's a decent argument that, even with no kids visible, the presence of the crossing guard should have put me on notice that, "Hey, it's a time of day when everyone expects children to be present, and cars should therefore be slowing down...and you can be ticketed if you don't do that."

[WuzYoungOnceToo]

I think there's a decent argument that, even with no kids visible, the presence of the crossing guard should have put me on notice that, "Hey, it's a time of day when everyone expects children to be present, and cars should therefore be slowing down...and you can be ticketed if you don't do that."

The only thing that's a decent argument for is the state being more interested in playing "gotcha!" games than in public safety. If drivers should, under penalty of law be driving at a lower speed at certain times of the day due to the likelihood of children being present then speed limit signs with different limits for different times of day would be the way to convey that. Instead, posting signage that relies on drivers exercising optional extra caution at their own discretion and penalizing them if they exercise the "wrong" option is beyond stupid.

[Michael P]

In the benighted South, it's common to have "speed limit 20 when flashing" signs at school zones. The flashing lights are turned on at the desired times (when children are arriving or leaving for the day) rather than leaving it up to argument.

[Zarniwoop]

I’ll assume you went to to school once upon a time. You do recall that school times can vary sometimes (half days and whatnot), right? Expecting a single sign to list the precise “different times of day” that cover all cases is not a plausible solution when compared to simple a “when children present” rule.

[WuzYoungOnceToo]

compared to simple a “when children present” rule

I must conclude that you're not paying attention. The whole point of this thread is that the rule is not that simple, for the reasons already covered multiple times. Given the variables you cite it becomes even less reasonable to expect drivers to know that they need to reduce their speed below a prescribed level outside of the usual school hours due to some scheduling exception even if children are not visible to said drivers, and to expect them to be cited for lacking that knowledge. In that case the only viable course is to simply make the speed limit the one prescribed "when children are present" at all times rather than expecting drivers to possess knowledge there's no reason to expect them to have.

[RC]

When I lived in Albuquerque, the slower speed limit signs by schools had flashing lights & said "Speed Limit 25 mph when flashing."

Much better & less ambiguous.

[Moderation4ever]

I wonder why they have these variable signs in the first place. Why not have a uniform rule of 20 mph when within 500 yards of a school? I don't think it that much of a problem to just slow down for that short period time in passing a school.

[Minadin]

Around here, we have signs that say:

SPEED LIMIT 20* WHEN FLASHING

And there's a yellow warning light, like you might find at a stop light, either above the sign, below the sign, or both. They are set to flash on a timer around elementary schools, Monday - Friday, during the school year, from about an hour before school opens, to a half hour after, and from about a half hour before school lets out, to about an hour after. This timer is not familiar with the holiday schedule or winter or spring breaks, but it's usually not on anyway.

* Sometimes it's 25 (If you're lucky).

[John F. Carr]

There are five levels of concern:

1. Speed limit.
2. Flashing lights at times apparently unrelated to school schedules.
3. Warning sign.
4. Flashing lights at times when children are very likely to be crossing the street.
5. Flashing lights and conspicuous crossing guards.

The first two are theater, distinguished by whether some long dead person was able to find a funding source to install a sign that the current generation refuses to maintain. Flashing signs do have some effect when they operate at believable times.

A study of Texas school zones showed drivers do not slow down for long. You get about 10 seconds before they hit the gas. If you post the school crossing speed limit 500 yards before school grounds the effect will have largely dissipated by the time cars get to the crosswalk.

[avb]

The sign is doubly ambiguous. It also doesn't say is 20 MPH is the upper or lower speed limit. In many places speed limit signs say "maximum speed" and that is needed when there is a minimum speed limit. In the rare case that you are driving a bus with a bomb on it, the minimum vs maximum is important too.

[John F. Carr]

While "children are present" has some ambiguity, the meaning of the number on the sign does not. You are expected to know that "SPEED LIMIT" on a sign means maximum speed in miles per hour. If in doubt, there is a document saying so incorporated by reference in your state DOT's regulations. There are different signs for minimum speed. And realistically, everybody does know this and contrarians will be laughed out of court after a guilty verdict.

Beyond that, in most cases a speed limit sign is a reminder of a law. The govermment has graciously chosen to remind you of the law even though you could be charged with constructive knowledge of every one of the thousands of statutes, regulations, and ordinances governing speed in your area.

[Mark Leen]

Sounds a bit like the divide between those jurisdictions that allow resort to objective extrinsic evidence to interpret an integrated contract when there is an ambiguity and those, like Washington State, that allow resort to objective extrinsic evidence to interpret an integrated contract when there is an ambiguity AND to show that there is an ambiguity.

[NM-Steve]

"...but we all know that's not the mischief."

That editorial "we" is unlikely to convince an opposing party. Lawyers tend to "know" what is in their client's best interest, and judges certainly know what's in theirs. Hence all the mischief over mischiefs... 😉

[beteille]

If there were no children "present," as in "existing or occurring now," wouldn't that be the plot of the movie, "Children of Men?"

[The Turtle Dove]

Perhaps too fine a point, but the mischief qua mischief isn't the presence of minor pedestrians, but the fact that people drive too quickly near minor pedestrians. You are the potential miscreant, according to the evil of the statute. So the question isn't whether Bobby and Sally playing hopscotch or doing useful part-time work as serving as lookouts for drug gangs are the children referred to in the statute, but whether your driving near the pedestrians approaches the evil of the statute. Which resolves the passenger question logically rather than by probability. (As the other dangers to B, S, and your passenger are categorically excluded.)

Mr. D.

[John F. Carr]

The mischief sought to be prevented by speed limit signs near schools is distressed parents complaining that there are no speed limit signs near schools.

[CFred]

Like the school zone speed limit signs that read “when school is in session”.
In NY “in session” has been determined to include after school functions, extra curricular activities, sporting events, school plays & concerts, days when school is not actually in session but students are likely to be on the grounds (sledding, playground, etc).

[John F. Carr]

There are a few laws that apply when children are in cars. Most of these are attempts to pile on charges rather than freestanding offenses. Variants of "obnoxious driving with a child in the car" which you can't commit without committing the underlying offense of obnoxious driving.