'Only a Sith Thinks Like That': Llewellyn's 'Dueling Canons,' Seventeen to Twenty

Abstract

This is the fourth 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 three installments of this study, covering pairs 1 through 16, showed that Llewellyn’s thesis that to every canon of construction there was another to opposite effect did not stand up to examination. This study of pairs 17 through 20 continues the pattern. Both Thrust #17 and thrust #18 are very weak presumptive principles, easily countermanded by other principles such as that the legislature should be presumed to have acted consistently (Parry #17), constitutionally (Ashwander), rationally, or to some purpose (Parry #18). Only a determination to deny legislative intention in favor of interpretive formulae can save the contrariety of these pairs. Pair #19 is a complete failure of comparability and contrariety. Thrust #20 is the great (and much maligned) paradigm of canons, expressio unius est exclusio alterius. But it too is merely a presumption, in opposition to Llewellyn’s chosen Parry #20 only if given an unreasonably wooden and universal authority.