Practical Consequences in Statutory Interpretation, 139 Harv. L. Rev. __ (forthcoming)

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Abstract

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 all such arguments as essentially equivalent.

This Article 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 Article catalogues seven different forms of practical-consequence-based arguments that the Court regularly invokes.  The Article 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 statutory interpretation.  

In the end, the Article recommends that the Court (1) abandon the categorical rhetoric used by some Justices to paint all consequentialist reasoning as illegitimate; (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 considerations that are grounded in longstanding, well-established legal principles.

Keywords: legislation, statutory interpretation, supreme court, empirical, canons of construction