Earlier this year the Green Bag — one of my favorite law journals — did a call for papers on Justice Antonin Scalia and Professor Bryan Garner’s treatise Reading Law: The Interpretation of Legal Texts. Scalia and Garner’s Reading Law has been the subject of much praise and criticism since it was published in 2012, with the headline debate taking place between Justice Scalia and Judge Posner. Josh Blackman chronicles that debate over at his blog here.
Today the Green Bag published the first half of its micro-symposium, which you can access here. The second half should be published later this week. My research assistant Andrew Mikac and I contributed to the micro-symposium, and I’ll blog more about our contribution tomorrow and, in particular, about how to use Reading Law in the leg-reg course as well as in the practice of administrative law. In this post, I introduce the micro-symposium and highlight a snippet from the first four contributions published today. I’ll do a follow-up post highlighting the second set of contributions once they are published in the Journal of Law later this week.
Here’s the introductory note from the Editors (footnotes omitted):
Recently, we issued a call for short (1,000 words) essays on Reading Law: The Interpretation of Legal Texts, by Antonin Scalia and Bryan Garner. We sought “[a]ny theoretical, empirical, or practical commentary that will help readers better understand the book.” The result is this micro-symposium.Our call drew dozens of micro-essays, some thought-provoking, some chuckle-prompting, and some both. Blessed with an abundance of good work but cursed by a shortage of space, we were compelled to select a small set – representative and excellent – of those essays to publish here. Fortunately, our sibling publication, the Journal of Law, could spare a few pages for the presentation of more (but still not all) of the worthy submissions . . . . We regret that we cannot do full justice to the outpouring of first-rate commentary we received. May you enjoy reading the following excellent representatives as much as we did.
And here are some highlights from the first four essays:
“The Textualist Technician,” by Karen Petroski:In their second edition, [Scalia and Garner] would do well to put their authority behind the position that the textualist technician needs practical wisdom as well as skill, and to stress that this virtue is valuable in its own right. Otherwise, the ability they take for granted, which is not just a technical skill but something much deeper, wider, and less amenable to summary or soundbite, will continue to become more rare.
The real problem for Scalia & Garner is not this approach’s lack of a historical pedigree. It is that using a dictionary to resolve disputes over the meaning of a word is unjustifiable if one is actually interested in rigorous linguistic analysis. To be sure, Scalia & Garner admonish readers about the quality of various dictionaries, for which they provide a bibliography of authoritative lexicons. But resorting to dictionaries at all is a terribly un-rigorous way of resolving the disputed meaning of any word, past or present.
Justice Scalia and Prof. Garner clearly understand the power of words and demand linguistic precision by the drafters of legal texts. If the canons in Reading Law apply to legal texts created by legislative geese, they should apply equally to legal texts created by judicial ganders.
In sum, these largely positive [law student] reviews reinforce our personal view on Reading Law’s usefulness in the classroom and this professor’s decision to use it again next year. But student feedback was not without dissent. One student perhaps captured this qualified review: “I fundamentally disagree with everything Scalia says but the book does have its uses.” For those uses, that student would have paid $20.