The mischief and the statute 4

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This post is the fourth in a series on The Mischief Rule. By this point, you’re probably wondering what exactly the mischief rule does, and you’re wanting some examples. So here are three–two are decisions of the Supreme Court from the last decade (CSX, Yates), and the other is a case in which the Supreme Court will hear argument next month (Zarda). If you’re wanting footnotes, read the article. And if you’re wondering whether the mischief rule is purposivism by another name, stay tuned–that question is up next. Here, then, is more from the introduction:

The mischief rule serves two functions. First, a stopping-point function: it offers a rationale for an interpreter’s choice about how broadly to read a term or provision in a legal text. Second, a clever-evasion function: it allows an interpreter to read a legal text a little more broadly to prevent a clever evasion that would perpetuate the mischief.

The stopping-point function is useful because any, or at least almost any, legal text is susceptible of being read with different degrees of breadth. The famous hypothetical statute of medieval Bologna prohibited shedding blood in the municipal palace. It could be read to prohibit all shedding of blood, including when a barber accidentally cut someone while shaving his face; or it could be read more narrowly as prohibiting violentshedding of blood. If the mischief were a recent spate of violence in the palace, the interpreter has a reason to choose the narrower interpretation. Conversely, if the mischief lay in a popular belief that the presence of any shed blood would make the palace, and thus the city, ritually unclean, the mischief rule would suggest a different scope; the case of the maladroit barber would be covered. This is the stopping-point function of the mischief rule: it gives the interpreter a reason to stop here instead of going further (or stopping short).

The mischief rule might lead an interpreter to choose a broader or narrower scope. But as time passes, and as a statute is pressed into service to answer questions never dreamed of at the time of its enacting, the mischief rule will tend to serve this stopping-point function by offering a narrower reading of the statute. In other words, it will encourage the court not to update the statute, and to leave to the legislature the task of passing a new bill to address a new situation. By contrast, the clever-evasions function is typically served by choosing a modestly broader scope.

Consider three recent examples of the stopping-point function. First, CSX Transportation, Inc. v. Alabama Department of Revenue is a dispute that made two trips to the U.S. Supreme Court. A federal statute prohibited discriminatory state taxes on interstate railroads, and the first three provisions of the statute explicitly indicated that the relevant comparison was to general commercial and industrial taxpayers. The fourth provision of the statute did not have that explicit comparator, and referred simply to “another tax that discriminates against a rail carrier.” Should the fourth provision be given a narrower interpretation—discrimination relative to general commercial and industrial taxpayers? Or should it be given a broader reading—discrimination relative to any taxpayers? In both cases, a majority of the justices chose the broader reading, and the authors of the majority opinions (Justices Kagan and Scalia) made standard textualist moves. In both cases, Justice Thomas dissented (joined by Justice Ginsburg), arguing among other things that it was important to adopt the narrower reading so the fourth provision would have “a reach consistent with the problem the statute addressed.”

Second, in Yates v. United States, the U.S. Supreme Court considered a provision in the Sarbanes-Oxley Act that makes it a federal crime to destroy, conceal, or falsify “any record, document, or tangible object.” The Court held that a fish—more specifically, an undersized grouper—did not count as a “tangible object” within the meaning of the statute. The plurality opinion of Justice Ginsburg repeatedly hints at the mischief to which this provision in the Sarbanes-Oxley Act was directed. Although Justice Ginsburg said only that she was “[m]indful of” the problem preceding the statute, the mischief rule justified the stopping point she chose.

Third, consider Zarda v. Altitude Express, Inc., one of the recent cases about whether Title VII’s prohibition on discrimination on the basis of “sex” includes within its reach discrimination on the basis of sexual orientation. The Second Circuit, sitting en banc, said yes, but Judge Lynch dissented, appealing to among other things the “political and social history” that was the context for Title VII. His dissent shows a strong grasp of the mischief rule.

The mischief rule offers the organizing and justificatory principle for what Justice Thomas in CSX, Justice Ginsburg in Yates, and Judge Lynch in Zarda all sensed was the right reading.

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