The Mischief Rule

ARTICLES

The Mischief Rule

SAMUEL L. BRAY*

The mischief rule tells an interpreter to read a statute in light of the

“mischief” or “evil”—the problem that prompted the statute. The mis-

chief rule has been associated with Blackstone’s appeal to a statute’s

“reason and spirit” and with Hart-and-Sacks-style purposivism. Justice

Scalia rejected the mischief rule. But the rule is widely misunderstood,

both by those inclined to love it and those inclined to hate it. This Article

reconsiders the mischief rule. It shows that the rule has two enduringly

useful functions: guiding an interpreter to a stopping point for statutory

language that can be given a broader or narrower scope, and helping

the interpreter prevent clever evasions of the statute. The mischief rule

raises fundamental questions about the relationship of text and context,

about the construction of ambiguity, and about legal interpretation when

we are no longer in “the age of statutes.” In many of our present inter-

pretive conf‌licts, the mischief rule offers useful guidance, for textualists

and purposivists alike.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 968

I. EPISODES IN THE RECEPTION OF THE MISCHIEF RULE . . . . . . . . . . . . . . . . . 976

A. HEYDON’S CASE .......................................... 977

B. BLACKSTONE’S CONVENTIONALITY . . . . . . . . . . . . . . . . . . . . . . . . . . 980

C. HART AND SACKS’ TRANSFORMATION . . . . . . . . . . . . . . . . . . . . . . . . 983

D. SCALIA’S REJECTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 984

II. FINDING THE MISCHIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 990

A. THE MISCHIEF AS A PROBLEM ANTECEDENT TO THE LAW . . . . . . . . . 992

* Professor, Notre Dame Law School. © 2021, Samuel L. Bray. For helpful comments and correspondence,

I am grateful to Sir John Baker, Amy Barrett, Will Baude, A.J. Bellia, Christian Burset, Jud Campbell, Nathan

Chapman, Ryan Doerf‌ler, Charles Donahue, James Dwyer, Frank Easterbrook, Bill Eskridge, Daniel Frost,

Rick Hills, Howell Jackson, Emily Kadens, Elizabeth Kamali, Andrew Koppelman, Anita Krishnakumar,

Marin Levy, John Manning, Jeff Pojanowski, Richard Re, Stephen Sachs, Adam Samaha, Peter Strauss, and

attendees of the faculty workshop at Harvard Law School and University of Richmond School of Law.

967

B. SOURCES FOR IDENTIFYING THE MISCHIEF . . . . . . . . . . . . . . . . . . . . . 994

C. DISTINGUISHING MISCHIEF AND PURPOSE. . . . . . . . . . . . . . . . . . . . . . 997

III. TWO FUNCTIONS OF THE MISCHIEF RULE . . . . . . . . . . . . . . . . . . . . . . . . . . 999

A. RATIONALIZING A STOPPING POINT. . . . . . . . . . . . . . . . . . . . . . . . . . . 999

B. THWARTING CLEVER EVASIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1005

IV. THE MISCHIEF RULE AND THE AGE OF STATUTES. . . . . . . . . . . . . . . . . . . . 1007

A. THE MISCHIEF RULE IN THE AGE OF STATUTES . . . . . . . . . . . . . . . . . 1007

B. THE MISCHIEF RULE AFTER THE AGE OF STATUTES . . . . . . . . . . . . . . 1009

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1013

INTRODUCTION

A Tennessee statute imposed duties on railroad engineers. If a railroad engi-

neer found an animal or obstruction on the tracks, the statute required “the alarm

whistle to be sounded, and brakes put down, and every possible means employed

to stop the train and prevent an accident.”

1

But what counted as an “animal” on

the tracks? Cows and horses, yes. But what else? Did all the trains in Tennessee

have to stop for squirrels?

The stop-the-train case poses diff‌icult questions for some interpretive theories,

especially textualism. The text does not identify a stopping point in what counts

as an animal. Nor is there a dictionary def‌inition that will include cows but

exclude squirrels. Is a textualist interpreter duty bound to say that trains really do

have to stop for squirrels?

There is a legal rule that allows the interpreter to escape this impasse. The mis-

chief rule instructs an interpreter to consider the problem to which the statute was

addressed, and also the way in which the statute is a remedy for that problem.

2

Put another way, the generating problem is taken as part of the context for reading

the statute. In the real stop-the-train case, the court found the mischief to be (at

least especially) the problem of train derailments; the court accordingly held that

three domesticated geese were not “animals” within the meaning of the statute.

3

In the court’s view, failing to consider the mischief would have meant that trains

had to stop even for “[s]nakes, frogs, and f‌ishing worms.”

4

This Article reconsiders and reevaluates the mischief rule. It argues that the mis-

chief rule can help an interpreter give a better account of what the legislature has

1. Nashville & K. R. Co. v. Davis, 78 S.W. 1050, 1050 (Tenn. 1902).

2. The canonical statement of the rule is in Heydon’s Case (1584) 76 Eng. Rep. 637; 3 Co. Rep. 7 a

(Exch.). For its discussion, see infra Section I.A.

3. Davis, 78 S.W. at 1050.

4. Id.

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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 also pragmatics.

5

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,

6

and for that very reason it was rejected by

Justice Scalia.

7

But the story is more complicated and more interesting.

The recent literature on legal interpretation includes many references to the

mischief rule, but this Article is the f‌irst thorough consideration of it as a principle

of statutory interpretation. Bill Eskridge considered the rule in a larger analysis of

statutory interpretation at the American Founding.

8

Peter Strauss discussed

the rule in his argument that an interpreter should look to a statute’s “political

history.”

9

John Manning noted “the complex questions surrounding this tradi-

tional tool of construction” and warned of “uncritical application.”

10

Anita

Krishnakumar found that the Roberts Court is increasingly relying on this

principle (including in Yates v. United States) in preference to the canon of

constitutional avoidance,

11

and she has encouraged interpreters to check their

conclusions about the text against “the background circumstances, often

referred to as the ‘mischief.’”

12

Stephanie Barclay noted conceptual aff‌inities

between the mischief rule and decisions that interpret statutes not to reach re-

ligious objectors.

13

Andrew Koppelman has written that to exclude something

from the coverage of a statute if it is outside the mischief is “the most famil-

iar” and “most legitimate” of the “subtractive moves” available to an inter-

preter.

14

And in a work on meta rules for interpretation, Richard Re considers

the choice that English courts have in deciding between the mischief rule and

other rules.

15

And yet this scholarship does not explore the mischief rule in

5. See generally Kent Bach, The Semantics-Pragmatics Distinction: What It Is and Why It Matters, in

PRAGMATIK: IMPLIKATUREN UND SPRECHAKTE 33 (Eckard Rolf ed., 1997). On tacit domain quantif‌iers,

see infra notes 200–03 and accompanying text.

6. See HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE

MAKING AND APPLICATION OF LAW 1144, 1415 (tent. ed. 1958).

7. See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL

TEXTS 433–34, 438 (2012).

8. See generally William N. Eskridge, Jr., All About Words: Early Understandings of the “Judicial

Power” in Statutory Interpretation, 1776–1806, 101 COLUM. L. REV. 990 (2001).

9. Peter L. Strauss, The Courts and the Congress: Should Judges Disdain Political History?, 98

COLUM. L. REV. 242, 256–61 (1998).

10. John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 733 n.253 (1997).

11. Anita S. Krishnakumar, Passive Avoidance, 71 STAN. L. REV. 513, 538, 573–77 (2019).

12. Anita S. Krishnakumar, Backdoor Purposivism, 69 DUKE L.J. 1275, 1347 (2020).

13. Stephanie H. Barclay, The Historical Origins of Judicial Religious Exemptions, 96 NOTRE DAME

L. REV. 55, 113–118 (2020).

14. Andrew Koppelman, Bostock, LGBT Discrimination, and the Subtractive Moves, 105 MINN. L.

REV. HEADNOTES 1, 21 (2020).

15. Richard M. Re, Interpretive Permissions 2–3 (Jan. 12, 2021) (unpublished manuscript) (on f‌ile

with author).

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