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3 Vand. L. Rev. 395 (1949-1950)
Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed

handle is hein.journals/vanlr3 and id is 411 raw text is: REMARKS ON        THE THEORY OF APPELLATE DECISION                 AND
THE RULES OR CANONS ABOUT HOW STATUTES
ARE TO BE CONSTRUED
KARL N. LLEWELLYN *
One does not progress far into legal life without learning that there is
no single right and accurate way of reading one case, or of reading a bunch
of cases. For
(1) Impeccable and correct doctrine makes clear that a case holds
with authority only so much of what the opinion says as is absolutely neces-
sary to sustain the judgment. Anything else is unnecessary and distinguish-
able and noncontrolling for the future. Indeed, if the judgment rests on two,
three or four rulings, any of them can be rightly and righteously knocked out,
for the future, as being thus unnecessary. Moreover, any distinction on the
facts is rightly and righteously a reason for distinguishing and therefore dis-
regarding the prior alleged holding. But
(2) Doctrine equally impeccable and correct makes clear that a case
holds with authority the rule on which the court there chose to rest the
judgment; more, that that rule covers, with full authority, cases which are
plainly distinguishable on their facts and their issue, whenever the reason for
the rule extends to cover them. Indeed, it is unnecessary for a rule or prin-
ciple to have led to the decision in the prior case, or even to have been
phrased therein, in order to be seen as controlling in the new case: (a) We
there said.. . (b) That case necessarily decided...
These divergent and indeed conflicting correct ways of handling or
reading a single prior case as one determines what it authoritatively holds,
have their counterparts in regard to the authority of a series or body of
cases. Thus
(1) It is correct to see that That rule is too well settled in this
jurisdiction to be disturbed; and so to apply it to a wholly novel circum-
stance. But
(2) It is no less correct to see that The rule has never been extended
to a case like the present; and so to refuse to apply it: We here limit the
rule. Again,
(3) It is no less correct to look over the prior applications of the
rule and rework them into a wholly new formulation of the true rule or
* Betts Professor of Jurisprudence, Columbia University School of Law; author,
numerous books and law review articles; draftsman, various uniform commercial acts;
chief reporter, Uniform Commercial Code. The Thrust and Parry is in good part the
work of Charles Driscoll.

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