The Sherlock Holmes Canon by Anita S. Krishnakumar, The George Washington Law Review

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.

The Sherlock Holmes Canon – Introduction

There is a little-studied practice in the United States Supreme Court’s statutory interpretation cases of inferring meaning from Congress’s failure to comment, in the legislative record, on a substantial change effected by a law it is enacting. Colorfully referred to as the “dog that did not bark” canon after a Sherlock Holmes story in which a watchdog failed to bark while a racehorse was stolen, the interpretive presumption made by the Court in such cases is as follows: if a statutory interpretation 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 that interpretation. In the Sherlock Holmes story, Silver Blaze, the inference drawn from the dog’s silence was that nothing unusual had happened during the night; similarly, in the Court’s jurisprudence, the inference drawn from Congress’s silence is that nothing unusual has occurred with respect to the relevant legal rule. “Failure to comment” or “dog that did not bark” arguments typically arise when the Supreme Court considers the meaning of a statutory provision that has been amended and an interpretation is advanced that arguably would change the status quo.

This interpretive canon has been invoked with increasing frequency in recent years, rearing its head, for example, in Justice Ginsburg’s dissenting opinion this past Term in Burwell v. Hobby Lobby Stores, Inc. In Burwell, Justice Ginsburg criticized the majority for interpreting the Religious Freedom Restoration Act (“RFRA”) to extend religion-based exemptions to for-profit corporations, arguing that such a rule worked a significant change in First Amendment law and precedents. If Congress had intended “a change so huge,” she argued, it would have made a “clarion statement to that effect” in RFRA. Yet “[t]he text of RFRA makes no such statement and the legislative history does not so much as mention for-profit corporations.” A few Terms earlier, Justice Breyer’s majority opinion in Zuni Public School District No. 89 v. Department of Education invoked a more forceful version of the Sherlock Holmes canon, insisting that a statutory amendment did not repudiate the Department of Education’s longstanding interpretation of the relevant statute because, among other reasons:

No one at the time—no Member of Congress, no Department of Education official, no school district or State—expressed the view that this statutory language (which, after all, was supplied by the Secretary) was intended to require, or did require, the Secretary to change the Department’s system of calculation, a system that the Department and school districts across the Nation had followed for nearly 20 years . . . .

As these two recent Roberts Court cases highlight, inferences based on congressional failure to comment can be elaborate, explaining in detail why Congress should have been expected to comment – and why its failure to do so should be taken as significant; or they can be succinct, merely noting that the legislative record is silent and that Congress would not have imposed a substantial change without discussion. Failure to comment arguments date back at least to the 1940s, but have been employed much more frequently by the Roberts and Rehnquist Courts than by their predecessors. Yet despite its increasing popularity, the Sherlock Holmes canon has generated surprisingly little debate or theoretical attention from members of the Court or scholars. This lack of scrutiny is curious, particularly because, as Part III of this Article explains, the canon effectively creates a “clear statement” rule of unprecedented form – shifting the institutional burden to Congress to make statements about a statute’s scope, and to do so in the legislative history.

The purpose of this Article is to contribute to the doctrinal and theoretical understanding of the role that “failure to comment” arguments play in statutory interpretation. The Article proceeds in three parts. Part I presents a doctrinal framework for understanding judicial inferences based on Congress’s failure to comment. Three forms of dog that did not bark arguments emerge from the Court’s caselaw: (1) the “no mention” form, which merely notes that the legislative history does not mention a substantial change in the law; (2) the “silence-is-telling” form, which makes a detailed argument that if Congress had intended a substantial change in the law, someone would have commented on it in the legislative record; and (3) the “bankruptcy rule,” which establishes a presumption that Congress intends to preserve pre-Bankruptcy Code practice unless the legislative history indicates otherwise.

Sherlock Holmes Canon

The Sherlock Holmes Canon – Arthur Conan Doyle

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