Mischief Before Ambiguity
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 ju
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