Green Bag Micro-Symposium on Scalia & Garner's "Reading Law"

The always informative, entertaining, and just plain awesome Green Bag has published its most recent micro-symposium, this one focused on Reading Law by Justice Antonin Scalia and Prof. Bryan Garner (SMU).  [Prior micro-symposia have focused on Orin Kerr's A Theory of Law and Suzanna Sherry's Why We Need More Judicial Activism].  

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.

I was fortunate enough to have my essay -- Good for Legislative Geese But Not Judicial Ganders? -- selected for inclusion.  The gist of my essay (to the extent it is not obvious from my pithy title), is that Justice Scalia and Prof. Garner limit the "legal texts" to which their interpretive canons apply to statutes, regulations, and constitutions.  This crabbed definition of "legal texts" obviously omits the single largest body of "legal texts" in American law, namely judicial opinions.  My essay goes on to discuss the ... shall we say ... loose interpretation of judicial opinions by Justice Scalia and his textualist colleagues on the Court. 

As cases in point, I discuss a trio of resent cases on factual causation -- Gross v. FBL Financial Services (2009), Univ. of Texas SW Med. Center v. Nassar (2013), and Burrage v. US (2014) -- the troublingly imprecise and inconsistent word choice employed by the Court in describing this critical legal doctrine (in Gross and Nassar), and Justice Scalia's own efforts to "correct" those inconsistencies in Burrage through the use of a heretofore unrecognized canon of judicial opinion interpretation, which I have dubbed the “Use-Brackets-To-Change-Words-And-Fundamentally-Alter-The-Meaning-Of-The-Sentence Canon.”

All of essays are [if I do say so myself] interesting and insightful.  SO CHECK THEM OUT!!!

And the Green Bag is always a lot of fun.  Now I just need to win a James Iredell Bobblehead ...    

Here are some highlights from the other three essays (via Prof. Chris Walker (OSU) at the blog of the Yale Journal on Regulation): 

 "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.

 

"A Note on 'A Note on the Use of Dictionaries,'" by Michel Paradis: 

 

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.

 

"Reading Law in the Classroom," by Christopher J. Walker and Andrew T. Mikac: 

 

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.