Consequential Analysis

• Author: Ruth Sullivan
• Pages: 212-222

212

CHAPTER 13

CONSEQUENTIAL

ANALYSIS

A. INTRODUCTION

In resolving problems in statutory interpretation, courts appropriately

take into account the consequences of applying legi slation to particular

facts. Consequences that are judged to be good are generally presumed

to be intended and are regarded as part of the legislative purpose. Con-

sequences that are judged to be absurd or otherwise unacceptable are

presumed not to have been intended. As much as possible, interpreta-

tions that lead to unacceptable consequences are avoided.

Two questions arise in the context of consequential analysis which

are diff‌icult to answer. First, when is a court entitled to label a particu-

lar consequence absurd or unacceptable? In other words, what sorts of

consequences are bad? And how bad do they have to be? Second, as-

suming consequences are ab surd or unacceptable, what is a permissible

response? How far may courts go in their efforts to avoid absurdity?

B. WHEN MAY CONSEQUENCES BE LABELLED

ABSURD?

In testing whether the conseq uences of a n interpretation are acceptable,

the courts work with norms of reasonableness, fairness, and plausibil-

ity derived from the culture to which they belong. This includes legal

culture, especially the norms of the common law, as well as the culture