Scalia And The Sherlock Holmes Canon: Canine Silence

Scalia And The Sherlock Holmes Canon: Canine Silence by Lawrence Cunningham, Concurring Opinions

Lawrence A. Cunningham, author of the best-seller, The Essays of Warren Buffett: Lessons for Corporate America, and an upcoming book, Berkshire Beyond Buffett: The Enduring Value of Values

While Justice Antonin Scalia‘s life is celebrated in a Catholic Mass of Christian Burial tomorrow in Washington by family and close friends, his legacy is being elaborated by the wider circle of former clerks, lawyers, and judges who knew him, including by many of my GW colleagues who clerked for him or other Justices.  Agree or disagree with the famously feisty jurist and scholar, his life and legacy are monumental.

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Coincidentally, a new article, “The Sherlock Holmes Canon,” brought to my attention on the very eve of Justice Scalia’s untimely passing, is very timely. In this article, being published in the GW Law Review, Professor Anita S. Krishnakumar of St. John’s University explores the late Justice’s interpretive theory, which he called “The Canon of Canine Silence.” The late Justice viewed it as a “phenomenon under which courts may refuse to believe Congress’s own words unless they can see the lips of others moving in unison.”

To steal a line from the redoubtable Larry Solum, download this while it is hot.  Following are some highlights of the piece the Editors of GW Law Review offered in their press release:

In the famous Sherlock Holmes story Silver Blaze, Mr. Holmes and Dr. Watson solve the case of a missing racehorse, based in part on the “curious incident of the dog in the night-time.” That is, Mr. Holmes infers that the thief must have been someone with whom the stables watchdog was familiar, because the dog did not bark as the horse was stolen. Mr. Holmes reasons: when an unfamiliar person enters the stables, the watchdog barks; the watchdog did not bark; thus, no unfamiliar person entered the stables.

Courts have applied Mr. Holmes’s “dog that did not bark” logic when construing the meaning of statutes. The interpretive presumption holds: if a new law or statutory amendment would significantly change the existing legal landscape (i.e., introduce something unfamiliar), 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.

… Professor Krishnakumar critically examines the “dog that did not bark” canon, evaluating its normative and theoretical implications. She finds:

  • In recent years, the Supreme Court has applied the canon with increasing frequency.

  • Yet there is little study of the Court’s practice of inferring meaning from Congress’s failure to comment.

  • In most cases, it is dubious to infer that Congress could not have intended to make a substantial change without notation in the legislative record.

  • The canon is actually a “clear statement” rule in disguise. It assumes a baseline state of the law, and requires that changes from that baseline be accompanied by explicit legislative acknowledgment.

  • Professor Krishnakumar concludes that although Justices view attentiveness to congressional silence as part of their duty as faithful agents , they often end up using the canon to guard against changes they find normatively problematic.

  • In the wake of, and leading up to, highly divisive Supreme Court decisions, The Sherlock Holmes Canon is fascinating to anyone with an interest in law, politics, or the intersection of the two. The next application of the canon could have a significant impact on all of us.To repeat: .

This piece is likely to stay hot, so download anytime.

The Sherlock Holmes Canon by Arthur Conan Doyle

Scalia And The Sherlock Holmes Canon: Canine Silence by Lawrence Cunningham, Concurring Opinions

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Larry is a professor of law at the George Washington University Law School. He joined the GW Law School faculty in 2007, having previously taught for 6 years at Boston College (where he served a 2-year term as Academic Dean) and for 8 years at Cardozo (where he served a 5-year term as Director of the Heyman Center on Corporate Governance). He also taught courses at many other schools in the US and abroad, including Central European University, Columbia University, Hebrew University, University of Navarra, and Vanderbilt University. Before entering academia, he practiced corporate law for 4 years at Cravath, Swaine & Moore. He earned his BA from University of Delaware and his JD magna cum laude from Cardozo. Larry writes extensively in corporate and securities law, with a special emphasis on law and accounting and investor perspectives. He teaches courses in those fields as well as Contracts. He has published a dozen books and 50 law review articles. His recent books include: Contracts in the Real World: Stories of Popular Contracts and Why They Matter (Cambridge University Press 2012), The AIG Story (Wiley 2013), The Essays of Warren Buffett: Lessons for Corporate America (Carolina Academic Press 2013), and Berkshire Hathaway’s Value of Values (Columbia University Press 2014). Areas of Interest: Accounting, Auditing, Contracts, Corporate Law, Finance, Investing, Legal Education, Securities Regulation