The Mischief Rule, an article on statutory interpretation that I published several years ago, begins this way:
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?
Note that there is no dictionary definition for animal that will mean “sizable animal,” or “animal of the sort you would need to stop a train for.” If you are willing to look at context, including the mischief, but only if you can first find some ambiguity, then you will be absolutely flummoxed by the stop-the-train statute. The solution, or so I argue in The Mischief Rule, is that interpreters should consider the mischief as an aspect of context not only after concluding that a statute is ambiguous, but also when deciding whether it is ambiguous in the first place.
I thought of these points when I ran across this passage in an essay by jazz critic Ted Gioia. He notes that Sony recently invested “in Michael Jackson’s song catalog at a valuation of $1.2 billion.” He then added: “no label would invest even a fraction of that amount in launching new artists.”
Now anyone reading that sentence knows exactly what Gioia means. He is not failing to get across his message. Nor is he an inept user of the English language. He isn’t making a mistake.
So what exactly does he mean by “a fraction”? No music label, he says, “would invest even a fraction of that amount in launching new artists.” But that, of course, is exactly what a music label would do: it would invest not $1.2 billion in a new artist, but rather a fraction of that.
So what does Gioia mean by “a fraction”? He does not simply mean a part of a whole. If Sony invested $1 billion in a new artist–a fraction to be sure, 5/6 of $1.2 billion to be exact–that would run counter to Gioia’s point. So he means by “a fraction” not just a part, but a small part.
But he also does not mean “any part.” If Sony invested $10,000 in a new artist, would that disprove Gioia’s point? Not at all. But $10,000 is quite literally a fraction of $1.2 billion.
So what does Gioia mean? He means by “a fraction” (1) a part of the whole (2) that is small and (3) yet non-trivial. It’s a small part of the whole that’s actually something, not so small that we could say–and every reader would understand–”that’s not even a fraction of what I wanted!” In other words, “a fraction” is being used as a concept that is bounded on both ends, a part that is neither a hair’s breadth smaller than the whole, but also not just a hair’s breadth. A fraction, a real fraction.
Yet even though (most) readers of Gioia’s sentence will understand immediately what he means, the sense in which he is using the word is not identified in dictionaries. At least not in the three I checked just now, including the Oxford English Dictionary. Dictionaries sometimes get the first and second aspects of Gioia’s usage, but not the third.
So, to draw the moral for legal interpreters: the semantic domain of a word is not coextensive with dictionary senses, and a word can be used in context in a way that makes sense to every reader and yet does not match any identifiable dictionary sense. Any good reader knows a slug is not an animal in the Tennessee statute, and any good reader knows that $10,000 is not even a fraction of $1.2 billion. Legal interpreters need to be more than good readers, but not less.
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