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09/17/2019

Samuel Bray: The Mischief Rule
Michael Ramsey

Samuel L. Bray (Notre Dame Law School) has posted The Mischief Rule (52 pages) on SSRN.  Here is the abstract:

The mischief rule tells an interpreter to read a statute in light of the “mischief” or “evil”—the problem that led to the statute. The mischief rule has been associated with Blackstone’s appeal to a statute’s “reason and spirit” and with Hart-and-Sacks-style purposivism; it was rejected by Justice Scalia. 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 interpretive conflicts, the mischief rule offers useful guidance, for textualists and purposivists alike.

Professor Bray has been blogging about the article at Volokh Conspiracy.  Here are his posts: 

Part 1:  The mischief and the statute

Part 2:  Does the statute mean that trains have to stop for squirrels?

Part 3:  The mischief, pragmatics, and legislative history

Part 4:  The mischief in CSX, Yates, and Zarda

Part 5:  Is the mischief rule just purposivism?

Part 6:  Context and the statute/Constitution difference

And at Legal Theory Blog, it is "Download of the Week"; Larry Solum says: "Highly recommended.  Download it while it's hot!"