The Canons of Statutory Construction and Judicial Preferences

A regrettable side-effect of Karl Llewellyn's interesting critique of the canons of statutory construction was that intellectual debate about the canons was derailed for almost a quarter of a century. In his critique, Professor Llewellyn purported to show that the canons of statutory construction were useless as rules for guiding decisions. His claim, that every canon could be countered by an equal and opposite counter- canon, transformed the canons from exalted neutral principles into "conclusory explanations appended after the fact to justify results reached on other grounds." This Article's first goal is to demonstrate that Karl Llewellyn's critique was largely beside the point. It simply doesn't matter whether or not the canons of statutory construction effectively constrain judges.

Even if the canons do provide meaningful information about the meaning of statutes, a court in every case faces a prior decision about whether to invoke the canons in resolving the dispute.' If the judge elects not to invoke the canons, the decision will be made on other grounds. The most obvious use for our theory is in predicting when a judge will use a canon to decide a particular case, and when she will decline to invoke a canon, and choose instead to decide the case on some other grounds. A second use for our theory is in explaining the recent revival of intellectual interest in techniques of statutory interpretation in general and in the canons of statutory interpretation in particular.