'Only a Sith Thinks Like that': Llewellyn's 'Dueling Canons', Twenty-Five to Twenty-Eight

45 Pages Posted: 24 Sep 2010

Date Written: September 24, 2010

Abstract

This is the sixth and concluding 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). After more than half a century, Llewellyn’s assault on the legitimacy of canons remains an imposing landmark in statutory interpretation scholarship.

The first five installments of this study, covering pairs 1 through 24, showed that Llewellyn’s thesis that for every canon of construction there was another to opposite effect did not stand up to examination. This study of pairs 25 through 28 shows the pattern to be uniform for Llewellyn’s entire list. Llewellyn’s practice of taking a familiar principle of interpretation and splitting off its “unless” clause, then calling both parts canons and therefore contradictory, again features clearly in Pair 27. Only a determination to deny legislative intention in favor of interpretive formulae can save the contrariety of these pairs. And his strategy, familiar from pairs number 1, 4, 6, 9, 12, 13, 15, 16, 17, 18, 22, 23, and 24 of creating a parry from a variation on “. . . unless the legislature intended otherwise” appears again in pairs ## 25 and 27.

As this is the concluding episode in this series, there is a final, general conclusion. Llewellyn’s celebrated list proved not at all deconstructive, let alone devastatingly so. Only Pair 5 came close to a genuine contradiction, and that seemed to be because the thrust had been created for the purpose of opposing the parry. A surprise of the study was how obviously un-canonical were so many of the thrusts and parries. For example Pair #11 incorporates three separate subjects, titles, preambles, and section captions: what canon covers three subjects, all with different underlying considerations (such as state constitutions’ entrenching the interpretive power of titles)? And a disappointing surprise was Llewellyn’s concocting many too many of the list members from section headings in treatises, too often without proper citation, and always without quotation marks.

The conclusion ends with an explanation of the first part of the title, “Only a Sith Thinks Like That,” which seems to have clicked few synapses as a synonym for ‘Manichean.’ It implied an argument that one should have thought apparent in 1950.

Keywords: legislation, statutes, jurisprudence, interpretation, construction

Suggested Citation

Sinclair, Michael and Schlusselberg, Adam, 'Only a Sith Thinks Like that': Llewellyn's 'Dueling Canons', Twenty-Five to Twenty-Eight (September 24, 2010). NYLS Legal Studies Research Paper No. 10/11 #3, Available at SSRN: https://ssrn.com/abstract=1682164

Michael Sinclair

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States
212-431-2153 (Phone)
212-431-1830 (Fax)

Adam Schlusselberg (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States

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