The Green Bag’s Micro-Symposium on Scalia and Garner’s Reading Law, Part II

by Chris Walker — Monday, Dec. 15, 2014@chris_j_walker

As I mentioned last week, the Green Bag just published a micro-symposium on Justice Antonin Scalia and Professor Bryan Garner‘s treatise Reading Law: The Interpretation of Legal Texts. I blogged about the first half of the symposium last week here. And I blogged about Reading Law‘s usefulness in the classroom and in administrative law practice here — the subject of my co-authored contribution (with my research assistant Andrew Mikac). To illustrate the usefulness of the book in practice and in the classroom, Thomson/West (the publisher) gave me permission to post the table of contents, which you can download for free here. Another contributor, Brian Clarke, has a great post about the micro-symposium over at the Faculty Lounge.

The second half of the micro-symposium, which was published in the Journal of Law, is now live. You can download the entire micro-symposium from SSRN here. Here are some highlights from the second set of four essays:

“Ineffective Intent: Denying a Political Victory Through Legislative Interpretation,” by William Trachman:

How then, should courts treat section 1311 [of the Affordable Care Act (“ACA”)], assuming that its omission really is an error? Scalia and Garner note that statutes, like contracts, should be “construed, if possible, to work rather than fail.” Scalia & Garner, at 63. Yet in this context, Scalia and Garner’s approach would give to Democrats the unique benefit of having won the 2010 special election in Massachusetts. In other words, courts may be giving supporters of the ACA the benefit of fixing a statute that, in March 2010, could not actually have been fixed legislatively. To use the example provided by Scalia and Garner, a statute that forces a winning party to pay the attorney’s fees of the losing party is absurd, until one realizes that political circumstances made it such that amending that provision was practically impossible.

In all fairness, Scalia and Garner write that the doctrine of absurdity – by which courts may repair flawed statutes – is not meant to “revise purposeful dispositions that, in light of other provisions of the applicable code, make little if any sense.” Id. at 239. But in the context of the ACA, the absurdity itself may not have been purposeful, but rather only the decision to press forward with passage of a statute in an untraditional and hurried manner. For that reason, regardless of ineffectiveness or absurdity, Scalia and Garner should be reluctant to allow courts to fix Congress’s mistake.

“Faux Canons,” by Jordan T. Smith (footnotes omitted):

If, as the authors claim, Reading Law was meant “to collect and arrange only the valid canons” and to omit faux canons that are “not genuinely followed,” then it would have been a more accurate statement of existing law to classify nearest-reasonable-referent cases as a subset of, or qualification to, the last-antecedent canon. The authors are undoubtedly skilled enough to explain canonical nuances, and to advocate for differentiation in the future, without needlessly proliferating the number of anointed canons. However, by propping up the nearest-reasonable-referent canon on its own, the authors wrongly suggest that it is already recognized and generally accepted.
“Grinding the Canons,” by Eric J. Segall:
Having struck out with Scalia’s and Garner’s 57 (really 70) canons, and worried that citing Posner could disqualify me (Canon No.49, the Rule of Lenity, probably doesn’t apply here), I decided to rest my case with the wonderful and ahead-of-his-time Llewellyn who said that the use of any canon of interpretation to decide a case must “be sold . . . by means other than the use of the canon.” That bit of wisdom seemed to me to be the sharpest tool in the shed.
“The Hirsch Report,” by Steven A. Hirsch (footnotes omitted) [For more information on the Hirch Report, see  Professor Garner’s May 8, 2014 blog post.]:
I have investigated Judge Posner’s charge that your book, Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012) (Reading Law), deliberately “misread[s] . . . case after case” to bolster its argument for “textual originalism.”  . . .
With respect to each of Posner’s 12 specific examples, I try to answer two questions: (1) Has Posner accurately summarized your treatment of the authority in question? and, if he has, (2) is his criticism of your treatment of that authority both (a) accurate (i.e., is his description of the reasoning of the case correct, or more nearly correct than yours?) and (b) supportive of his argument (i.e., does the difference between his reading of the case and yours support his thesis that Reading Law deliberately misreads cases to bolster the case for “textual originalism”)
I conclude below that in 8 of Posner’s 12 examples, Posner’s criticisms are unwarranted. In 2 of the 12 examples (#10 and #11), and perhaps in a third (#6), there is arguably some substance to Posner’s criticism thatReading Law omits a relevant aspect of the case’s reasoning – although not in any glaring way that implicates your intellectual integrity as he gratuitously suggests. With respect to the remaining example (#7), I agree with Posner that Reading Law, while describing the case accurately, endorses a poorly reasoned decision; but, once again, that kind of disagreement is not a valid ground for attacking the authors’ integrity.
On the whole, I am struck by the needlessly ad hominem nature of Posner’s analysis.
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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the Michigan Law Review, Minnesota Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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