Substantive Canons

Reconsidering Substantive Canons
Anita S. Krishnakumar
Professor of Law, St. John’s University School of Law

I owe deep thanks for valuable insights and conversations to Aaron-Andrew Bruhl, William N. Eskridge, Abbe R. Gluck, Rebecca M. Kysar, Margaret H. Lemos, Katherine Shaw, Lawrence Solan, Nelson Tebbe, and Adam Zimmerman. I am especially indebted to my husband, Ron Tucker, for his patience with this project. Special thanks to Dean Michael A. Simons and St. John’s University School of Law for generous research assistance and to participants at workshops and colloquia at Yale Law School and the Benjamin N. Cardozo School of Law for their comments on earlier drafts of this Article. Christina Corcoran, Sade Forte, Ilya Mordukhaev, Jennifer Roseman, Samuel Sroka, Rita Wang, Kim Friedman, Lissa Yang, Peter Ryan, Vince Nibali, Christine Sammarco, and Thomas Combs provided terrific research assistance. Thanks also to the editors at The University of Chicago Law Review for their excellent work. All errors are my own.

There is a popular belief among statutory interpretation scholars that substantive canons of statutory construction—that is, policy-based background norms or presumptions such as the rule of lenity and the canon of constitutional avoidance—act as an “escape valve” that helps textualist judges eschew, or “mitigate,” the rigors of textualism.