Tuesday, July 17, 2012

Review of Scalia Book on Statutory Interpretation (7/17/12)

Antonin Scalia & Bryan A. Garner have a new book called Reading Law: The Interpretation of Legal Texts (Westlaw 2012).  The Westlaw URL for the book is here.  The book is principally about constitutional and statutory interpretation a process which is at the heart of the Tax Procedure course and many of the courses in law school.  In the opening chapter or the course book for Tax Procedure, I discuss some of the issues for statutory interpretation.

Stanley Fish, an online commentator for the Opinionator at the New York Times  reviews the book in a blog titled "Intention and the Canons of Legal Interpretation," here.  Fish starts with a timely discussion of Justice Roberts' decision sustaining the individual mandate in the recent NFIB v. Sibelius case, citing the Constitutional Doubt Canon #38 from the book --  “A statute should be interpreted in a way that avoids placing its constitutionality in doubt.”

Fish offers a very favorable review of the book, although noting that the book did not require the polemical thesis about textualism that Justice Scalia just cannot avoid.  Fish then nitipicks a bit and concludes:
Nothing I have said here should be read as a retreat from my judgment that “Reading Law” is a wonderful book. The falsity (as I take it to be) of the authors’ polemical thesis does not detract at all from the considerable accomplishment of laying bare the inner workings of legal interpretation. And since that thesis — that interpretation begins and ends with the text — is so often belied by the examples offered in support of it, we can safely put it aside and be grateful for the pleasure and illumination Scalia and Garner provide.
I have just added some further discussion about the book on Federal Tax Crimes Blog, IRS Data-Mining Program re Offshore Accounts; with a Diversion to the Real Golden Rule (9/1/12), here.  Since that discussion is buried in the main topic of that blog entry, I cut and past the relevant portions here.
Since I mention Judge Posner and Justice Scalia, I can't help but mention their recent tiff.  The opening round was fired by Justice Scalia and his writing pal, Bryan Garner.  The book they co-authored is Reading Law: The Interpretation of Legal Texts (Westlaw 2012).  The Westlaw URL for the book is here and the Amazon URL is here.   
Judge Posner fired the next round in Richard Posner, The Incoherence of Antonin Scalia (The New Republic 8/24/12), here.  For those interested, I recommend reviewing Judge Posner's article and don't think I am up to the task of even summarizing it.  That is not a negative comment.  Judge Posner has something to say; I find that generally he is worth listening to.
The has now rebuttal appeared in the form of someone perhaps serving as a surrogate for Judge Posner.  Ed Whelan, Richard A. Posner’s Badly Confused Attack on Scalia/Garner (National Review Online 8/31/02), here.  I also will not attempt a summary of it.  It is worth reading. 
Although there are sharp edges in the back and forth, I imagine that Judge Posner and Justice Scalia can not only survive he punches but welcome them in the intellectual fray thus joined. 

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