Practical Consequences in Statutory Interpretation
Modern textualism has long criticized the use of practical, or consequentialist, reasoning when construing statutes. And yet in practice, textualist jurists long have invoked practical consequences arguments to help justify their statutory constructions. Over the past several years, some scholars have noted this seeming disconnect, but few have attempted to study the Court’s—or textualist Justices’—use of practical consequences arguments in detail. Indeed, for too long now, statutory interpretation theory has lumped the universe of practical consequences arguments into one undifferentiated bucket, treating them all as essentially equivalent.
This paper provides the first in-depth empirical and doctrinal analysis of how the modern Supreme Court uses practical consequences arguments to determine statutory meaning, based on a study of 668 statutory cases decided during the Roberts Court’s first sixteen-and-a-half terms. The paper catalogues seven different forms of practical-consequence-based arguments that the Court regularly invokes. The paper also notes several problems with the Court’s current use of practical consequence arguments to construe statutes. For example, the Court currently invokes a hodge-podge of undefined practical concerns—and provides no structure or parameters indicating what kinds of practical consequences concerns are, or should be, relevant in determining statutory meaning. Moreover, the Court’s references to at least some forms of practical consequences—such as absurd, unjust, or adverse results, or results that would undermine a statute’s purpose—is in tension with modern textualism’s theoretical rejection of purpose, intent, and policy considerations.
In the end, the paper recommends that the Court (1) abandon the categorical rhetoric used by some Justices to paint all consequentialist reasoning as illegitimate (even while themselves engaging in such reasoning); (2) adopt clear canons or presumptions regularizing those forms of practical consequences it determines should be part of the interpretive inquiry—e.g., a “workability canon” supporting the rejection of interpretations that would prove difficult or unworkable to administer; and (3) limit the universe of acceptable practical consequences canons or presumptions to those forms of practical consequences considerations that are grounded in longstanding, well-established legal principles.
About the Public Law Workshop
Michigan’s Public Law Workshop provides an opportunity for faculty and students from across the University to enjoy weekly presentations by leading scholars producing current work on topics ranging from constitutional law and administrative law to international law, statutory interpretation and beyond. Professors Julian Mortenson and Daniel Deacon organize the workshop. If you would like to receive workshop announcements, please contact Alex Wroble ([email protected]) and ask to have your name added to the workshop’s email list.
