Mischief Before Ambiguity
July 12, 2022 | Tags: REASON
Last week I was driving and saw a sign that said "Speed Limit 20 MPH When Children Present." I was driving between 30 and 35 mph, which was fine unless the lower speed limit was in play. But was it? I looked ahead on both sides of the street and saw no children. But there were children in my car! Were children "present"?
I think this illustrates two different approaches to the mischief rule. This is the classic rule of statutory interpretation that directs interpreters to consider the problem precedent to the statute--the "mischief" or "evil" toward which the statute was directed--as part of its context. I explore this rule in a recent paper called The Mischief Rule, and I argue that it should be embraced by textualists.
There is one key point on which readers of the article have divided. I argue that the mischief rule is not just an ambiguity-resolving device--that is, you don't just consider the mischief after you've read the statute and found it ambiguous--but instead you consider the mischief ab initio, both to help you see if there is an ambiguity and to resolve it (as in Bond). Some readers have found that a step too far (e.g., the excellent response by recent Notre Dame grad Timothy Bradley called Getting into Mischief: Reflections on Statutory Interpretation and the Mischief Rule).
But I think the speed limit sign nicely shows why the mischief helps us spot ambiguity, not just resolve it. On the face of the sign, there is no ambiguity. What part of present do you not understand, we might say? The children in the car are just as present as children outside the car, and nothing on the sign restricts the contours of presence to being outside the car. On the other hand, we all know what the mischief is: driving too fast when there are kids, especially when there are lots of kids around a school, increases the risk that the driver will hit one of the kids.
One could hypothesize that the mischief is "kids in the car might be hurt if there's an accident," but we all know that's not the mischief. And the sign shows that to us: if that were the mischief then the speed limit would be different if there are kids in the car (like the highways that have different speed limits for cars and trucks), not just in this one place but even after the driver kept going through it. But the signs are put around schools and perhaps other places where there are likely to be lots of little kids outside the car. We know the mischief. And once we know the mischief, it's clear that there are two ways to read the sign: "20 mph if kids are around outside the car" or "20 mph if kids are around inside or outside the car." And we know the former one fits the mischief.
It's taken longer to explain this in a blog post of course, but it was just a second or two to work through this in my mind--I saw the sign, I knew the mischief, I saw no kids outside the car, and I kept my foot on the gas pedal. Just another day in the life of someone reading texts with the mischief rule.