Category Archives: Philosophy pholks

Prescriptivist Statutory Interpretation? (Part 2 of Scalia and Garner on Statutory Interpretation)

[Part 1 here.]

For most people who consult Scalia and Garner’s new book on statutory interpretation (I say “consult” because few people are going to read it straight through), Bryan Garner’s name on the cover will lend additional credibility to the book’s discussion of grammar and linguistic meaning. After all, he’s the Guru of Writing and Language. But to what extent is his background and expertise actually relevant to the process of interpreting a text whose meaning is disputed? My answer to that question is, less than you might think.

Let me start by focusing here on the relevance of Garner’s grammar-related work to the kinds of grammatical issues that come up in interpreting statutes; I’ll save for a later post my examination of his work as a lexicographer and how that relates to resolving disputes over word meaning.

Most of Garner’s work is devoted to giving advice about how to write, and most of it deals with topics such as these, which are irrelevant to statutory interpretation:

“Plain meaning in context”: The video(s)

Videos of the symposium I wrote about in the previous post are available here, and having watched parts of it, I don’t feel as bad about missing it.

While Richard Epstein’s keynote address was interesting, it didn’t seem to me to have much to do with what the symposium was supposed to be about, and I’m at a loss to see more than the most tangential connection between what Epstein said and how his talk was described in advance. I didn’t hear any argument “that the underlying linguistic problems should drive the analysis” or that trying “to tailor rules of interpretation to institutional settings” would “detract [from] understanding how and why language works.” I don’t go to a lot of law-school symposia—I’m just a simple country lawyer—so maybe it was naive of me to expect that the program that was actually presented would reasonably approximate what was described in advance.

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“Plain Meaning in Context: Can law survive its own language?”

That (i.e., the title of this post) was the title of an interesting-looking symposium that was held at the NYU Law School last month. I wish I’d known about it in advance; I would have gone. Papers from the symposium will be published in The Journal of Law and Liberty, in an issue due out in late summer.

For me, the most interesting parts of the symposium are the keynote address (by Richard Epstein) and the first panel (featuring Larry Solan, Peter Tiersma, and Scott Soames.)

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