The mischief and the statute 3

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This is the third in a series of posts about The Mischief Rule. So what is the mischief rule? The next part of the introduction addresses that question. Again, for the footnotes, read the article:

This Article reconsiders and reevaluates the mischief rule. It argues that the mischief rule can help an interpreter give a better account of what the legislature has actually decided. The reason is inherent in how language works: bare words are not always enough, for there may be facts an interpreter needs to know to make sense of those words. In technical terms, the interpreter needs not only semantics but pragmatics. It is therefore no surprise that courts are continually applying the mischief rule even without knowing it. Nevertheless, the rule has been widely misunderstood. It was celebrated by Henry Hart and Albert Sacks, who found in it the roots of purposivist interpretation, and Justice Scalia rejected it for that very reason. But the story is more complicated and more interesting.

The recent literature on the subject is surprisingly diffuse. Bill Eskridge has considered the mischief rule in a larger analysis of statutory interpretation at the American Founding. Peter Strauss has considered it in an argument that courts should interpret statutes in light of their “political history.” John Manning has noted “the complex questions surrounding this traditional tool of construction,” and warned of “uncritical application.” More recently, this year, Anita Krishnakumar has noted that the Roberts Court is increasingly relying on this principle, in preference to the canon of constitutional avoidance. And Andy Koppelman has written that to exclude something from the coverage of a statute if it is outside the mischief is “the most legitimate” of the “subtractive moves” for an interpreter. Yet despite the widespread references to the mischief rule, the only sustained modern treatment is Daniel Frost’s argument that it points to a useful middle way in constitutional interpretation.

What is the mischief rule and what does it do? It directs attention to the generating problem, which is public and external to the legislature, something that can be considered observable in the world. The mischief might be indicated in the statute itself or be established by judicial notice, evidence of public debate preceding enactment, or legislative history. Nevertheless, there is no necessary relationship between (a) considering the mischief and (b) consulting legislative history. In the years when English courts applied the “Hansard rule,” refusing to consider debates in Parliament, they nevertheless continued to apply the mischief rule.

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