Yesterday I blogged about the first half of the Green Bag‘s micro-symposium on Scalia and Garner’s treatise Reading Law: The Interpretation of Legal Texts. That post is here, and the micro-symposium can be downloaded here. My terrific research assistant Andrew Mikac and I contributed a 1,000-word essay to the symposium, focusing on the usefulness of Reading Law in my first-year legislation course. I’ll use this post to discuss our short essay.
Over the past two years I have used Reading Law as a teaching supplement, so Andrew and I decided to survey last year’s class to see what they thought about the treatise. Many of their observations apply with similar force in the real world of statutory interpretation, including agency statutory interpretion. Our essay is such a quick read, so I won’t repeat it here. But I did want to build on one recurring positive theme and one recurring negative theme from the student reviews — both of which bear on the treatise’s practical use.
First, the positive. Reading Law is simply the best treatise out there on the canons of interpretation. It’s so well written and clearly organized, which should be no surprise with Justice Scalia and Professor Garner as its authors. In fact, a recurring comment from students in class and during the survey was that the table of contents alone makes the book worth buying. What makes the table of contents so helpful is that it organizes the interpretive tools by category and then includes a brief definition along with the interpretive tool’s name. Here’s an example, from the section on semantic canons.
Thomson/West (the publisher) has graciously permitted me to post the full table of contents on the blog, and you can download it here.
The table of contents is a great reference for spotting issues and providing a quick definition, but you really need to have the whole book (which is probably why the publisher is letting me post the table of contents here). As my students quickly discover, the chapters on each canon are terrific and necessary to properly apply the canons. In those chapters, the canons are succinctly discussed, analyzed, and applied in particular cases. It’s an invaluable reference for students of interpretation as well as real-world interpreters.
Now, the negative. As one student commented in the survey, Scalia’s “very clear opinions about legislative history” mean full reliance on textualism is “not a good real-world strategy” because it downplays the prevalence of more purposivist methods. Reading Law rejects legislative history as an interpretive tool and thus provides no guidance on how to use it. If Justice Scalia were the sole judge of interpretation, real-world interpreters probably would be okay just using Reading Law as their guide. But the reality is that, among judges, Justice Scalia’s view on legislative history is the minority one.
For agency interpreters, the lack of guidance on legislative history is particularly problematic. The findings of my empirical study on agency statutory interpretation highlight the problem. Of the more than twenty interpretive tools included in the study, legislative history was among the top six most used in agency statutory interpretation. Roughly three in four (76%) rule drafters surveyed reported that they use legislative history when interpreting statutes.
Of course, I’m not suggesting that the next edition of Reading Law include a section on how to use legislative history in statutory interpretation. I wouldn’t expect Justice Scalia to offer guidance on the use of interpretive tools he deems illegitimate. Instead, users of the treatise must look elsewhere for that guidance (as well as take into account when using the treatise that even the canons he does discuss are framed from the perspective of a textualist and not a purposivist).
Notwithstanding this limitation, Reading Law — especially at a list price of less than $50 — should be on the bookshelf of every administrative law practitioner, if not on the bookshelf of every lawyer.