February 13, 2009
Llewellyn Deconstructed by Professor Sinclair.
The abstract to Professor Sinclair's third installment (will there be a prequel?) to his analysis of Llewellyn's famous canons is on ssrn. 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.
The article, 'Only a Sith Thinks Like that': Llewellyn's 'Dueling Canons,' Pairs Thirteen to Sixteen, may be accessed here.
The prior two installments -- Llewellyn's Dueling Canons, One to Seven: A Critique -- and the first, 'Only a Sith Thinks Like That': Llewellyn's 'Dueling Canons,' Eight to Twelve, are also on ssrn.
Once again thanks to Ted McCLure at Phoenix Law for pointing me to them.
February 13, 2009 | Permalink
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