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109 Geo. L.J. Online 199 (2020-2021)
Getting into Mischief: Reflections on Statutory Interpretation and the Mischief Rule

handle is hein.journals/gljon109 and id is 199 raw text is: Getting into Mischief: Reflections on Statutory Interpretation and the Mischief Rule TIMOTHY J. BRADLEY* This Note responds to Professor Samuel L. Bray's article, The Mischief Rule, 109 GEo. L.J. 967 (2021). Professor Bray argues that textualists should embrace the mischief rule, which instructs an interpreter to con- sider the problem to which a statute was addressed and the way in which the statute is a remedy for that problem. He maintains that the mischief should be taken as part of the initial context for interpreting a statute and not just as a tool for resolving ambiguities. This Note identifies three diffi- culties with the mischief rule: the difficulty of separating mischieffrom pur- pose, the difficulty of identifying mischief in a principled and reliable way, and the difficulty of applying the mischief rule in a helpful way even if one can reliably identify it. It proceeds to consider the importance of context in statutory interpretation. Although the mischief rule may be an appropriate tool for resolving statutory ambiguities, this Note argues that it should not be deployed if the meaning of a law is reasonably clear when read in its semantic and structural contexts. INTRODUCTION Communication is complicated. Legal communication is no exception. James Madison, in the course of defending the Constitution proposed to the American people for ratification in 1787, noted that no language is so co- pious as to supply words and phrases for every complex idea, or so correct as not to include many, equivocally denoting different ideas.1 Thus, how- ever accurately objects may be discriminated in themselves, and however accurately the discrimination may be conceived, the definition of them may be rendered inaccurate, by the inaccuracy of the terms in which it is deliv- ered.2 The limits of language often thwart effective communication be- tween individuals. The problem is only exacerbated when collective bodies attempt to communicate about complex ideas-as when a legislature com- municates a change in the legal status quo to those who will be affected by it.I * Notre Dame Law School, J.D. 2020. © 2021, Timothy J. Bradley. I am grateful to Michael Bradley, Deion Kathawa, and Braden Murphy for insightful comments on this Note. Thanks also to my fellow participants in the statutory interpretation seminar at Notre Dame Law School, from which this Note grew, for helpful discussions. THE FEDERALIST No. 37, at 183 (James Madison) (George Carey & James McClellan eds., 2001). 2 Id. 3 See, e.g., John F. Manning, What Divides Textualists from Purposivists?, 106 COLUM. L. REV. 70, 71-72 (2006) [hereinafter What Divides] (Since legislators act under the