Karl N. Llewellyn

My association with Karl Llewellyn goes back many years to early days at Yale. I first knew him when, as student editor of the Yale Law Journal, he carried that publication almost singlehandedly through World War I, while I, as graduate treasurer, tried, not too successfully, to maintain its solvency. We came into close accord in 1919 when I joined the Yale faculty, of which he was already a member. Then and later when he returned from a brief period of practice in New York City and until he left for Columbia in 1925 we were in daily collaboration or friendly rivalry as the most junior members of a lively and ambitious group. Perhaps my sharpest remembrance of that era is of his always forceful and pungent form of expression, both oral and written. I can recall a considerable envy of that facility--indeed one which I always retained. To be fertile in original ideas while at the same time to possess a unique skill in forceful expression is a rare combination. Karl had this in unusual measure

Llewellyn: Jurisprudence: Realism in Theory and Practice

A Review of Jurisprudence: Realism in Theory and Practice By Karl N. Llewellyn

Llewellyn: The Common Law Tradition- Deciding Appeals

A Review of The Common Law Tradition- Deciding Appeals. By Karl N. Llewellyn

Only a Sith Thinks Like That: Llewellyn\u27s Dueling Canons, Eight to Twelve

In this, the second installment in a series of articles planned to examine each of the twenty eight pairs of dueling canons having opposite effect left to us in 1950 by Karl N. Llewellyn (Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed , 3 VANDERBILT L.REV. 395 (1950)), I examine pairs 8 through 12. I start with Pair 12, Llewellyn\u27s formulation of the Plain Meaning Rule; it is not so much a canon of construction as a condition on construction: unless one or both of its conditions applies, no interpretive questions arise. It should have been first on Llewellyn\u27s list. Pairs 8 through 11 form a natural group. They are about interpretive controls or aids that are enacted or promulgated with the statute in question. Pair 8 is about statements of purpose; Pair 9 is about interpretation clauses, including both definitions and interpretive instructions; and Pair 10 is about interpretive instructions. Pair 11 treats titles, preambles and section captions together. As in the first installment, Pairs 1 through 7, Llewellyn\u27s fiendish deconstruction of these ten canons proves thoroughly innocuous. The reasons underlying the canons in the first set of pairs and the appropriate context for their use completely dissolved the superficial contrariety. In this second episode the problems evident in the first installment recur. Some duelists can hardly be called canons, having little regularity of occurrence or generality of reason. Pairs 9 and 10 are thoroughly mixed up and duplicative. Pair 11, in contrast, includes three separate and distinct topics, and, if there is anything canonical to be found in them, should have been correspondingly split in three. Through pair 12, then, Llewellyn\u27s list of dueling canons does not live up to its reputation

Only a Sith Thinks Like That: Llewellyn\u27s Dueling Canons, Thirteen to Sixteen

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\u27s 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\u27s oppositions appearing artificial and contrived. And once again one is often forced to query whether Llewellyn\u27s 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\u27s captions, without appropriate quotation marks, ellipses, or pin-cites

Atmospherics: Abortion Law and Philosophy

In 1934, Karl N. Llewellyn published a lively essay trumpeting the dawn of legal realism, “On Philosophy in American Law.” The charm of his defective little piece is its style and audacity. A philosopher might be seduced into reading Llewellyn’s essay by its title; but one soon learns that by “philosophy” Llewellyn only meant “atmosphere”. His concerns were the “general approaches” taken by practitioners, who may not even be aware of having general approaches. Llewellyn paired an anemic concept of philosophy with a pumped-up conception of law. Llewellyn’s “law” included anything that reflects the “ways of the law guild at large”-- judges, legislators, regulators, and enforcers. Llewellyn argued that the legal philosophies implicit in American legal practice had been natural law, positivism and realism, each adopted in response to felt needs of a time. We must reckon with many other implicit “philosophies” to understand the workings of the law guild, not the least of which has been racism. Others, maternalism and paternalism, my foci here, persist in American law, despite women’s progress toward equality. Both maternalism and paternalism were strikingly present in a recent decision of the U.S. Supreme Court, Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban Act

Atmospherics: Abortion Law and Philosophy

In 1934, Karl N. Llewellyn published a lively essay trumpeting the dawn of legal realism, “On Philosophy in American Law.” The charm of his defective little piece is its style and audacity. A philosopher might be seduced into reading Llewellyn’s essay by its title; but one soon learns that by “philosophy” Llewellyn only meant “atmosphere”. His concerns were the “general approaches” taken by practitioners, who may not even be aware of having general approaches. Llewellyn paired an anemic concept of philosophy with a pumped-up conception of law. Llewellyn’s “law” included anything that reflects the “ways of the law guild at large”-- judges, legislators, regulators, and enforcers. Llewellyn argued that the legal philosophies implicit in American legal practice had been natural law, positivism and realism, each adopted in response to felt needs of a time. We must reckon with many other implicit “philosophies” to understand the workings of the law guild, not the least of which has been racism. Others, maternalism and paternalism, my foci here, persist in American law, despite women’s progress toward equality. Both maternalism and paternalism were strikingly present in a recent decision of the U.S. Supreme Court, Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban Act