Academic

Sinclair on Llewellyn on Statutory Interpretation & Construction

By Lawrence Solum

Michael Sinclair (New York Law School) has posted 'Only a Sith Thinks Like that': Llewellyn's 'Dueling Canons,' Pairs Thirteen to Sixteen (New York Law School Law Review, Forthcoming) on SSRN.  Here is the abstract:

This is the third installment in a series of articles examining the famous twenty eight pairs of "dueling canons" left to us in 1950 by Karl N. Llewellyn ("Remarks on the Theory of Appellate Decision and the rules or Canons of about how Statutes are to be Construed," 3 VANDERBILT L.REV. 395 (1950). In the first two installments, examining Pairs 1 through 12, Llewellyn's "fiendish deconstruction" of these twenty-four canons proved quite innocuous. This installment covers pairs 13 to 16. Once again, looking at the reasons underlying the canons in each pair and the appropriate context for their use completely dissolves the superficial contrariety, Llewellyn's oppositions appearing artificial and contrived. And once again one is often forced to query whether Llewellyn's choice of dueling thrust and parry should properly be called "canons." In this installment I have finally been forced to come to grips with the distressing problem of the provenance of the actual language Llewellyn chose for many of his formulations: they are too often reduced or paraphrased versions of Black's captions, without appropriate quotation marks, ellipses, or pin-cites.

Highly recommended!

Full post as published by Legal Theory Blog on February 12, 2009 (boomark / email).