I’ve been out of the country, with intermittent internet acess, while the controversy over Judge Posner’s review of review of Scalia & Garner’s book Reading Law has been brewing, and it’s only just now that I’ve seen Bryan Garner’s response to the review.
I haven’t looked at the cases Posner discusses in his review, so I’m not going to comment on whose reading of those cases is correct. But I do want to point out an inaccuracy in Garner’s response.
Garner says that all the canons of interpretation that are discussed in the book “are well established and have been frequently applied[.]” But as I think I’ve shown in my earlier post Three Syntactic Canons, that’s not correct. Both the Series-Qualifier Canon and the Nearest-Reasonable-Referent Canon break new ground in fairly significant ways. (See the earlier post for the details.) And I’ll add here that the “rule” from which I think the Series-Qualifer Canon derives is one that courts have not cited very often.
Furthermore, as my earlier post points out, the Series-Qualifier Canon is inconsistent with what is said about the rule of the last antecedent in the 7th edition of Black’s Law Dictionary, which was the first edition to be edited by Garner. (I don’t have easy access to the later editions he edited, so I don’t know whether the entry was changed.)
I know from correspondence with Garner that he’s read my posts about Reading Law, and he hasn’t suggested to me that anything I’ve said is wrong. Of course, that doesn’t necessarily mean that he agrees with me; he may just have decided to keep any disagreement to himself. But still.
In any case, it seems to me that in his understandable zeal to defend his work, Garner has gone further than the facts warrant.