Anita S. Krishnakumar
84 Geo. Wash. L. Rev. 1
Many of the Supreme Court’s statutory interpretation cases infer meaning from Congress’s failure to comment in the legislative record. Colorfully referred to as the “dog that did not bark” canon, after a Sherlock Holmes story involving a watchdog that failed to bark while a racehorse was being stolen, the interpretive presumption holds as follows: if a new law or statutory amendment would significantly change the existing legal landscape, Congress can be expected to comment on that change in the legislative record; thus, a lack of congressional comment regarding a significant change can be taken as evidence that Congress did not intend a change in the law. “Failure to comment” arguments typically arise when the Supreme Court considers the meaning of a statutory provision that has been amended and an interpretation of the statute is advanced that arguably would change the status quo. Surprisingly, this canine canon of construction has received little theoretical attention—and what little attention it has received has tended to be positive, assuming that the canon leads courts to follow congressional intent. But there are several practical and theoretical problems with the assumptions underlying the canon.
This Article first examines how courts employ the Sherlock Holmes canon in practice. It then evaluates the canon’s normative and theoretical implications in detail. Ultimately, it argues that the Sherlock Holmes canon is a “clear statement” rule in disguise, in that it allows judges to freeze certain legal rules in place and to shift the institutional burden to Congress to be exceptionally clear when it wishes to effect certain kinds of legal change. The Article concludes that this clear statement effect is problematic and that the canon should be invoked only in rare cases, when there is special reason for courts to expect or require Congress to comment on a change in the law.
