The Mischief Rule

47 Pages Posted: 12 Sep 2019 Last revised: 11 Jun 2021

Date Written: June 11, 2021

Abstract

The mischief rule tells an interpreter to read a statute in light of the “mischief” or “evil”—the problem that prompted 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. 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 interpretive conflicts, the mischief rule offers useful guidance, for textualists and purposivists alike.

Keywords: statutory interpretation, equity, language

Suggested Citation

Bray, Samuel L., The Mischief Rule (June 11, 2021). 109 Georgetown Law Journal 967 (2021), Notre Dame Legal Studies Paper No. 19912, Available at SSRN: https://ssrn.com/abstract=3452037 or http://dx.doi.org/10.2139/ssrn.3452037

Samuel L. Bray (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

HOME PAGE: http://law.nd.edu/directory/samuel-bray/

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