What should we do about Americanjudges’ inability to agree on a single method for interpreting statutes? Judge Brett Kavanaugh of the D.C. Circuit and Chief JudgeRobert Katzmann of the SecondCircuit have been having a conversation about this issue in the pages of the Harvard Law Review.

It started with Katzmann’s book, Judging Statutes, in which Katzmann argues for greater use of legislative history. In a 2016 Book Review in the Harvard Law Review, Kavanaugh responded by arguing that instead of following Katzamnn’s lead, judges should develop some clear “rules of the road” for statutory interpretation. Katzmann then responded in the Harvard Law Review Forum, calling Kavanaugh’s piece a “substantial conversation-starter” and calling on others to join the discussion. That is what this paper does.

Is Kavanaugh right that his proposed rules of the road would help judges to “say what the law is, not what the law should be” in statutory interpretation cases? The Supreme Court of Canada has long experience with an interpretive approach very similar to what Kavanugh proposes. This paper examines whether the use of this approach has produced in Canada the outcomes that Judge Kavanaugh believes it will in the United States. The Canadian caselaw shows that the use of Kavanaugh’s proposed method can conceal the “judge-as-legislator” problem,but does not eliminate it. Does this doom his proposal? I suggest that what the Canadian experience tells us is that while clear and agreed-on rules for statutory interpretation are a necessary condition for a system in which judges act more like umpires and less like legislators, they are not sufficient. The final part of this paper suggests three ways in which Kavanugh’s proposal could be complemented.