Late-Stage Textualism

Are “canons of construction” embarrassing? For a long time, the answer was “yes.” Exposed as “contradictory” by Karl Llewellyn, a generation of legal thinkers understood interpretive canons to be so malleable in their application as to operate mostly as pretext. Rather than bring predictability to statutory decisions, the availability of more than one interpretive canon in nearly any appellate case meant that a canon’s invocation worked mostly to obscure the choice (conscious or not) by judges between legally permissible outcomes. Interpretive canons were thus tools of legalmystification, providing the appearance of law towhat were, ultimately, acts of discretion.