Richard Re tweeted yesterday, “If you are writing on the major questions doctrine, please engage with Bray on the mischief rule.” This isn’t the first time Re has tweeted about Bray’s piece, “The Mischief Rule.” I like following Re on Twitter and have a few MQD works in the pipelines, so I’ve spent the last few weeks reading and rereading Bray’s piece. And to sum it up, Bray’s work doesn’t disappoint. By reading Bray, you can get a better handle both on the mischief rule and on what the MQD aims to achieve in its platonic form. Bray’s work should not, however, leave you with the warm fuzzies for the MQD.
Bray and the Mischief Rule
Bray’s piece isn’t about the MQD at all. He’s setting out to write the definitive piece on the mischief rule that lays to bed many misconceptions about the rule. He starts out like so:
A Tennessee statute imposed duties on railroad engineers. If a railroad engineer found an animal or obstruction on the tracks, the statute required “the alarm whistle to be sounded, and brakes put down, and every possible means employed to stop the train and prevent an accident.” But what counted as an “animal” on the tracks? Cows and horses, yes. But what else? Did all the trains in Tennessee have to stop for squirrels?
The stop-the-train case poses difficult questions for some interpretive theories, especially textualism. The text does not identify a stopping point in what counts as an animal. Nor is there a dictionary definition that will include cows but exclude squirrels. Is a textualist interpreter duty bound to say that trains really do have to stop for squirrels? There is a legal rule that allows the interpreter to escape this impasse. The mischief rule instructs an interpreter to consider the problem to which the statute was addressed, and also the way in which the statute is a remedy for that problem.
Straightforward enough. The mischief rule, as its name implies, is designed to allow a kind of escape valve for interpreters to consider the problem a legislature was trying to solve. Bray lays out the upshots of the mischief rule seamlessly: it gives “a better account of what the legislature has actually decided” and it reflects the inherent limits of language. Nonetheless, the mischief rule is divisive. It’s been celebrated by some purposivists but was rejected by Justice Scalia.
Nonetheless, the mischief rule has a long track record and a deep pedigree. Bray says it accomplishes two important functions:
First, a stopping-point function; it offers a rationale for an interpreter’s choice about how broadly to read a term or provision in a legal text. Second, a clever-evasion function; it allows an interpreter to read a legal text a little more broadly to prevent a clever evasion that would perpetuate the mischief.
Sound familiar? More on that resemblance in a minute. Bray also argues that this isn’t purposivism. People have, in his telling, been mixing up important differences between the mischief and the purpose of a statute:
There are certain things that spur us to consider acting. Spurred on, we act. But we do not act like a coracle, buffeted by the waves, rudderless and unpadded. Instead, we have reasons for our actions. But the expression, such and such was my reason for acting” is ambiguous. It could refer to the initial cause, the spur to acting. Or it could refer to the aim (or ultimate aim) that I had for acting.
(Side note: I love this guy’s writing) While the mischief and purpose of a statute might both be about adding context to text in some sense, Bray sharply delineates between the two. The Article then is a defense of taking into account the context of the “setting of legal enactments” through the mischief rule.
The mischief rule and the MQD
After reading the article, here are my thoughts. First, it’s clear that the platonic ideal of MQD operates kind of like the mischief rule if you squint. The MQD offers a “stopping-point function” by “providing a rationale” for limiting our read of legal text. Afterall, the MQD posits that Congress speaks clearly when resolving major questions.
Second, I think the article complicates how we think and talk about the MQD. Scholars lately have been describing the MQD as purposive. In Daniel Deacon and Leah Litman’s new piece, for example, they argue that the MQD is akin to a the absurdity doctrine and is a kind of purposivism. It’s not entirely clear to me that they are drawing the right analogy. (Love the piece though, people ought to read it.) To me, the MQD aspires to be more like the mischief rule. As Bray suggests, the mischief rule provides context and tells us something about how legislature in general work: they operate against mischiefs out in the world. See Bray 992-993. “[L]egislatures exist to change the law to improve the social condition; problems out there in the world, so to speak, are the legislature’s concern.” Legislatures do not, however, operate “rudderless and unpadded.”
The MQD similarly operates off of a single descriptive claim about how Congress in general works: it resolves major questions with clear language. The entire point of the doctrine is to tell us how Congress operates in the long run, not unlike the mischief rule. So you can read the Bray piece as offering some support for textualists who want to use the MQD but are worried about whether it fits with their methodological priors. Someone could argue that the MQD just gives interpreters context–no big deal. Cf. Bray at 975–76 (“Although the mischief rule has distinctive qualities that are relevant for law, the underlying intuition that context matters will persist as long as human beings use and make sense of language.”).
Okay, but here’s where things go off the rails. The mischief rule’s descriptive claim—legislature go out and operate in the world against mischiefs—I think, it widely accepted. It’d be an odd turn for statutory interpretation if we started from a theory that legislatures are just enacting laws with chaotic randomness. But the MQD is a distortion of reality. It claims that Congress speaks clearly when addressing major questions. That’s just obviously wrong. It’s not just wrong sometimes, across the public law landscape Congress has addressed major questions with language that is anything but clear.
The problem here isn’t that the MQD is purposive, it’s that it’s a sham that shifts power from the political branches to the courts. In that sense, it makes a mockery of all that’s defensible about the doctrines like the mischief rule.
It’s also not clear that it operates in any way that’s comparable to Bray’s mischief rule. For Bray, the mischief rule is defensible in so far as it provides a rule for resolving statutory ambiguity. The mischief rule is a rule of construction. The MQD could have played out that way. But lately, it’s been morphed into a super-charged rule of interpretation. Practically, that means the MQD is applied earlier in the process of statutory interpretation and is not limited to instances of ambiguity. For those interested, the “morphing” of the MQD is discussed in the introduction here.
So a textualist might be okay, under Bray’s thinking, with using a tool that (1) adds context in instances of ambiguity and (2) is based on a true theory about how legislature operate in the world. That’s the mischief rule. But Bray’s thinking doesn’t really extent to the MQD which (1) is a super-charged rule of interpretation that (2) is entirely made up.
Closing thoughts
I confess to a little bit of exasperation around the MQD lately. I don’t think we’ve sufficiently identified the problem or its implications. For centuries, our tools of statutory interpretation have made claims about how legislatures operate. Sometimes, courts have fudged the details with fictions. Chevron, for example, captures a kernel of a truth that lawmakers sometimes mean to leave the details to federal agencies with ambiguous or open-ended text. It’s kind of hard to tell where Congress intended for agencies to pick up the ball, so Chevron adopted a fictitious presumption to set up a baseline. Chevron, like other fictions, rises and falls on how much it captures versus how much it obscures.
But such fictions are miles apart from broadly falsifiable claims like the one empowering the MQD. We really are engaging with a dangerous precedent if we allow courts to lie about a coordinate branch to increase its own power.
Allow me to demonstrate my concerns with a fictitious story. If tomorrow the Chief Justice of the Supreme Court wrote into the law the “Major Day Doctrine,” under which the Court presumes that Congress only means to delegate authority to federal agencies every other Tuesday, everyone in the bar, the academy, and the public would ridicule him. Afterall, this would be the Court enshrining a falsifiable statement about a coequal branch of government into law. If the Chief Justice’s supporters chimed in, “well fictions actually pervade the law—that’s not a good criticism,” then those supporters too would be ridiculed. They would be ridiculed because common sense commands that there is a difference between legal fictions—which rise and fall on whether they capture more than they obscure—and demonstrably false statements. Equally important, the critics of the Major Days Doctrine would be launching a complete critique of the doctrine. So complete in fact, that if someone were to write a law review article questioning the normative impact of the Major Days Doctrine, that someone would probably be met with puzzled glances. We can imagine reviewers intoning, “aren’t we kind of missing the point here?”
I think Bray’s piece about the mischief rule is great. It also really helps us better understand the MQD’s aspirations and its shortfalls. But let’s not spin our wheels to long so that we end up missing the point.