On Garner on Posner on Scalia & Garner

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 has been 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.

4 responses to “On Garner on Posner on Scalia & Garner

  1. You should check out Posner’s response to Garner’s response, at the New Republic, entitled “How Nuanced Is Justice Scalia’s Judicial Philosophy? An Exchange.” It’s quite good.

  2. The Garner statement you quote comes in the context of explaining how he and Scalia allegedly misuse cases—six cases in particular. I think a reasonable interpretation of his comment is that they are not using these cases to establish the authoritativeness of particular canon, but only to show them being used in action. So, the quote could be read as “All the canons discussed [in the cases Posner criticizes] are well established and have been frequently applied; the examples are there merely to show how each particular canon works.”

    Perhaps he is not trying to make any statement about canons for which cases are not cited. As you point out in an earlier post, not all the canons are supported by case law examples, and Garner & Scalia openly admit that they are attempting to be normative and prescriptive with their canons. So it would be strange if Garner meant to imply that all the canons were authoritative and well-established.

    Anyhow, very interesting series of posts.

  3. Bart: I don’t think your interpretation of Garner’s statement will fly, for several reasons.

    First, it seems to me that Garner’s response to Posner is intended as a defense of the book as a whole, not just of the discussion of the book’s treatment of the cases Posner addressed. Garner says that he and Scalia expected that their book “would be inimical—if not seriously threatening” to nontextualists and that it “would inevitably be attacked[.]” So Scalia and Garner “took precautions” to make sure that what they said was accurate. Garner’s reply described those precautions, and it was in the context of that description that Garner said that the canons they included “are well established and have been frequently applied[.]”

    Second, Scalia and Garner hold the book out as an effort to educate modern lawyers and judges with a body of knowledge that has fallen into obscurity:

    “Anglo-American law has always been rich in interpretive conventions. yet since the mid-20th century, there has been a breakdown in the transmission of this heritage to successive generations of lawyers and lawmakers — indeed, a positive disparagement of the conventions by teachers responsible for their transmission….We seek to restore sound interpretive conventions.” (xxvii-xxviii [paragraph breaks omitted].)

    And later on they say, “We believe that our effort is the first modern attempt…to collect and arrange only the valid canons (perhaps a third of the possible candidates) and to show how and wyy they apply to proper legal interpretation.” (9.)

    Third, the assumption that Scalia and Garner are restating existing principles rather than making up new ones — finding the law rather than making it — is central to the claim that their method promotes predictability and avoids the freewheeling subjectivity of nontextualist methods.

  4. Your first two points are well taken. There does seem to be some inconsistency in the book about whether they are trying to “restore” lost arts or just being “unapologetically normative.” Perhaps they are trying to have it both ways, at least rhetorically. Still, I think the fairest reading is that most (but not all) of the canons have at least sometimes been applied in actual cases—just as most of them have sometimes been ignored. (In the book, they say that the canons are taken “mostly” from cases, implying that at least some come from elsewhere. Kindle Location 485.)

    I don’t think your third point is right. Even if Scalia and Garner had fabricated each of the canons, they would promote predictability and reduce subjectivity in judicial interpretation insofar as people agreed to use them. If Scalia & Garner had come up with a great new way to solve some interpretative problem, the newness of their solution would be no impediment to its greatness as long as they could persuade people that is great. For the canons themselves are not “law” that needs to be discovered—they are instead proposed rules rules for how to discover the law in text.

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