Scalia and Garner on legal interpretation
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Antonin Scalia and Bryan Garner have recently (June 19) published Reading Law: The Interpretation of Legal Texts, a 608-page work in which, according to the publisher's blurb, "all the most important principles of constitutional, statutory, and contractual interpretation are systematically explained".
I haven't read it yet, but I'll point you in the direction of some discussion by those who have. There's a short blog post by Alex Carp at The New Yorker's News Desk, "Writing with Anonin Scalia, Grammar Nerd", 7/16/2012, which focuses on the origin and development of the collaboration. There's a piece by Adam Liptak in the New York Times, "Hints in New Scalia Book of Views on Health Law", 6/15/2012, which scans a pre-publication review copy of the book for readings of the pre-decision tea leaves in the then-forthcoming NFIB v. Sebelius (ACA) case. There's a piece by Tony Mauro in the National Law Journal, "In second book, Scalia, Garner warn judicial decisions leading to 'descent into social rancor'", 6/15/2012, which zeroes in on the book's contention that
"The descent into social rancor over judicial decisions is largely traceable to nontextual means of interpretation, which erode society's confidence in a rule of law that evidently has no agreed-on meaning," the authors state. "Our legal system must regain a mooring that it has lost: a generally agreed-on approach to the interpretation of legal texts."
There's a short review by Richard Brust in the ABA Journal, "Scalia and Garner Release 567-Page Tome on Textualism", 6/19/2012.
And in yesterday's New York Times, Stanley Fish has a long Op-Ed piece, "Intention and the Canons of Legal Interpretation", which starts by suggesting that John Roberts' vote in the NFIB v. Sebelius case may be explained by Canon #38 in the Scalia-Garner taxonomy ("A statute should be interpreted in a way that avoids placing its constitutionality in doubt"), and ends by noting graciously that "the falsity […] of the authors' polemical thesis does not detract at all […] from the pleasure and illumination Scalia and Garner provide". In between, Fish re-engages the textualist/intentionalist debate — we previously discussed Fish's arguments against Scalia's view on this topic in "The meaning of meaning: Fish v. Scalia", 1/4/2011.
But for a systematic exploration of the problems of legal interpretation, and what Scalia and Garner actually have to say about it, I recommend an on-going series of blog posts by Neal Goldfarb at LAWn Linguistics. There are four posts in the series so far: "Scalia and Garner on statutory interpretation: Introduction", 6/25/2012; "Prescriptivist Statutory Interpretation?", 7/6/2012; "Syntactic Ambiguity", 7/8/2012; "Three Syntactic Canons", 7/13/2012.
David Walker said,
July 17, 2012 @ 1:40 pm
Well, how many pages? Inquiring minds want to know! 608 or 567?
[(myl) Amazon page says 608:
Maybe the last page of text before the index is numbered 567, or something…]
sh said,
July 18, 2012 @ 7:58 am
WorldCat: xxx, 567 p.
Jason said,
July 18, 2012 @ 2:36 pm
Without wishing to wade into a briar patch, Scalia's avowed theory of statutory interpretation is "Textualist." Wikipedia summarizes textualism as follows:
Textualism is a formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or substantive questions of the justice and rectitude of the law.
Yet I will point out that the Scalia-led dissent in National Federation of Businesses et al vs Sibelius (the Affordable Care Act decision) does indeed appeal in several places to the intent, or at the very least the intentionality, of Congress, and other extra-textualist evidence, to establish that Congress was imposing a penalty, not a tax, with the individual mandate, most notably:
I maintain once again that Scalia cannot keep his story straight vis a vis his theory of statutory interpretation, and that the concerns which drive his decisions are rather different than his alleged commitment to textualism. And I say that as someone who agrees with the dissent in that decision. So I'm not in a rush to read Scalia's magnum opus when even he apparently doesn't believe in it.
[(myl) I've posted several times about opinions in which Justice Scalia reasons "about the meaning of legal texts in terms of the intentions of those who framed them" — or at least, in terms of the communication-intentions of any reasonable hypothetical writer or speaker — e.g. "A result that no sensible person could have intended", 12/8/2005.]
Belial said,
July 19, 2012 @ 12:36 pm
I'm holding the book in my hand – the last page of the index is numbered 567; preceding page 1 there are xxx pages of contents, foreword, etc.; and following the index there is a colophon page and 10 blank pages. So both interpretations of the page count are reconcilable, having resort only to the text of the book.
KathrynM said,
July 21, 2012 @ 8:17 am
Also in possession of a copy (and working my way through it–it's interesting, although not always persuasive, and I find the tendency to cite as authoritative both dissents by Justice Scalia and pronouncements from /Garner's Modern American Usage/ is in questionable taste). The 567 numbered pages Belial notes include 414 pages of actual text (including Afterword), followed by 153 of appendixes and indexes.