The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last fall, the Honorable Amy Coney Barrett delivered the 2019 Sumner Canary Memorial Lecture at the Case Western Reserve University School of Law: "Assorted Canards of Contemporary Legal Analysis: Redux." The lecture has now been published in the Case Western Reserve Law Review.
Here is how Judge Barrett's lecture begins:
It would be an honor for me to speak to you at any time, but I'm particularly honored to be doing so now, on the thirtieth anniversary of the Sumner Canary Lecture delivered by Justice Antonin Scalia, my former boss and mentor. His lecture, titled Assorted Canards of Contemporary Legal Analysis, described his "most hated legal canards"—baseless but frequently repeated statements that lawyers are "condemned to read, again and again, in the reported cases." He took aim, for example, at the hoary canon that "remedial statutes are to be broadly construed." He asked, "How are we to know what is a remedial statute?" "Are not all statutes intended to remedy some social problem?" "And why should we construe any statute broadly?" Statutes should be construed neither broadly nor narrowly, but at the level of generality at which they are written. And he bemoaned the well-worn phrase, "A foolish consistency is the hobgoblin of little minds." Why is consistency in the law a bad thing?
Tonight, in the spirit of Justice Scalia's Canary Lecture, I'm going to share my own list of canards.
A PDF of the lecture may be downloaded here.
Video of Judge Barrett's lecture is available here.