'Only a Sith Thinks Like that': Llewellyn's 'Dueling Canons,' Eight to Twelve
69 Pages Posted: 17 May 2006
In this, the second installment in a series of articles planned to examine each of the twenty eight pairs of "dueling canons" having opposite effect left to us in 1950 by Karl N. Llewellyn (Karl N. Llewellyn, "Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed", 3 VANDERBILT L.REV. 395 (1950)), I examine pairs 8 through 12. I start with Pair 12, Llewellyn's formulation of the Plain Meaning Rule; it is not so much a canon of construction as a condition on construction: unless one or both of its conditions applies, no interpretive questions arise. It should have been first on Llewellyn's list. Pairs 8 through 11 form a natural group. They are about interpretive controls or aids that are enacted or promulgated with the statute in question. Pair 8 is about statements of purpose; Pair 9 is about interpretation clauses, including both definitions and interpretive instructions; and Pair 10 is about interpretive instructions. Pair 11 treats titles, preambles and section captions together.
As in the first installment, Pairs 1 through 7, Llewellyn's "fiendish deconstruction" of these ten canons proves thoroughly innocuous. The reasons underlying the canons in the first set of pairs and the appropriate context for their use completely dissolved the superficial contrariety. In this second episode the problems evident in the first installment recur. Some duelists can hardly be called canons, having little regularity of occurrence or generality of reason. Pairs 9 and 10 are thoroughly mixed up and duplicative. Pair 11, in contrast, includes three separate and distinct topics, and, if there is anything canonical to be found in them, should have been correspondingly split in three. Through pair 12, then, Llewellyn's list of dueling canons does not live up to its reputation.
Keywords: statute, statutory interpretation, statutory construction, Llewellyn
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