Response to Richard A. Posner

By: Bryan A. Garner, 5 September 2012 Hardly was I surprised that Judge Richard A. Posner did not warmly embrace Reading Law, the book on textualism I coauthored with Justice Antonin Scalia. But I was unduly sanguine in thinking that my friendship with Judge Posner (such as it is—we’ve shared several meals since the 1990s and have always had convivial conversations) would ensure at least a fair reading of our book on “fair reading.” The tendentious hostility of Posner’s review in The New Republic, containing allegations of pervasive misrepresentations in the new Scalia‑Garner book, did come as a surprise—a most disappointing one. A response is in order. Judge Posner is cited six times in the main text of Reading Law—three of those being negative but restrained. (Three times we cite his work positively.) Despite the telling points made against his earlier positions—such as the idea that canons of construction are disingenuous “fig leaves” used to justify uncandid decisions actually made on other grounds—Posner, in his 5,000-word book review, nowhere acknowledges these criticisms, much less tries to answer them. He instead smears the book with accusations of sloppy research and poor case explanations. In a series of blog posts for National Review Online, Edward Whelan has done a masterly job of demonstrating why the six examples that Judge Posner assails—examples of Scalia’s and my research and case explanations—are entirely correct. My coauthor and I knew that a book on textualism would be inimical—if not seriously threatening—to those who promote nontextual means of deciding cases in which a governing legal text is at issue. It would inevitably be attacked. We therefore took precautions. Please bear with me as I say a word about them. Justice Scalia and I wrote the first drafts of the case explanations ourselves, and we tried to be unimpeachably accurate in them. Beginning more than a year before publication, I had four lawyer‑colleagues at LawProse—with 55 years of professional experience among them—verify the accuracy of every statement made about every case in the book. Meanwhile, both Justice Scalia and I reread many cases where either of us doubted what had been said about them. Most of Judge Posner’s criticisms of our research were founded on the assertion that the cases cited used, in their rationales, more than the single canon being illustrated. That would be a telling criticism if the purpose of the cases had been to show the authoritativeness of the canon. But that was not the purpose. In choosing cases, we wanted examples that (1) contained lively problems that could be readily explained without bogging down readers, and (2) involved discrete textual points. We were looking for interesting issues that would illustrate good textualism—through our explanations. All the canons discussed are well established and have been frequently applied; the examples are there merely to show how each particular canon works. That a given court considered other factors besides the canon is quite irrelevant to our purpose. Indeed, it would be very hard to find examples in which a single canon was the sole basis for the decision.           Reading Law is a normative, prescriptive book, as we’re at some pains to emphasize on page 9: “Our approach is unapologetically normative, prescribing what, in our view, courts ought to do with operative language.” So in citing examples, we were much more interested in the textual problems posed than in the solutions that courts provided. Instead, we explained our solutions, often noting points of agreement and disagreement with the courts that actually decided the cases. What I’ve said so far is enough to explain why Judge Posner went seriously off the rails in his review. But it’s worth setting straight some of his particular misstatements. Perhaps the biggest is this non sequitur: “Heller [the gun‑control case] is the best‑known and the most heavily criticized of Justice Scalia’s opinions. Reading Law is Scalia’s response to the criticism.” What? I spent three‑and‑a‑half years immersing myself in the literature of statutory interpretation, scouring hundreds of books and a thousand‑plus articles to write a full‑length treatise, merely to help my coauthor respond to criticism about one case? What a breathtakingly and self‑evidently farcical statement. Why write such a tome if its “real” purpose covers less than three pages? (There are two citations to Heller in the introduction and two pages totaling two paragraphs of discussion about Heller in the context of examining legal history.) No, that wasn’t the book’s purpose. What motivated Justice Scalia and me to write this ambitious book was our desire to bring clarity to what has become the most muddled aspect of judicial decision‑making: interpretation. It had nothing to do with justifying Heller or any other particular case. But Judge Posner’s criticism of that decision is worth looking at. Judge Posner points to a supposed contradiction: that the book condemns the use of legislative history, yet “Scalia is doing legislative history when he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller.” Judge Posner knows very well that “legislative history” does not embrace what the Heller opinion used—the history of the times when the legislation (or constitutional provision) was adopted, including the understandings reflected in contemporaneous legislation and scholarly commentary. “Legislative history” means the floor debates, committee hearings, and committee reports of the legislature or convention that adopted or proposed the text in question. It was not the Court’s opinion in Heller but Justice Stevens’s dissent that used (and, we think, misread) the Second Amendment’s drafting history. Lawyers know the distinction, but Posner’s depiction of a contradiction where there is none, in a magazine directed to nonlawyers, preys on the unknowledgeable. Judge Posner’s critiques repeatedly miss the mark. Take, for example, his opening criticism, which deals with the book’s treatment of a sign that reads “no person may bring a vehicle into the park.” The book considers whether that prohibition would apply to, among other things, an ambulance. Judge Posner would have the reader believe that “[f]or Scalia and Garner, the answer is yes,” simply because “[a]fter all, an ambulance is a vehicle—any dictionary will tell you that.” That is a gross distortion of our analysis, which explicitly rejects an uncritical acceptance of definitions from just “any dictionary.” Our analysis declines to apply the available dictionary definitions of “vehicle”— “means of conveyance with wheels,” “receptacle in which something is placed in order to be moved,” and “self-propelled conveyance that runs on tires”—because these would literally cover “remote-controlled model cars, baby carriages, tricycles, or perhaps even bicycles.” The book rejects that meaning since, as we explain, it is common usage that we are looking for, and not all colloquial meanings are to be found in dictionaries. Adding insult to distortion, Judge Posner claims that we “later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout the book.” To the contrary, we do not retreat. And nuance is not equivocation. The assertion that we “retreat” is consistent with a pattern of distortion exhibited throughout his review. My coauthor and I consistently maintain that ambulances are covered by the prohibition but also explain that “[s]ome of the imperfections [in a statute] can be cured or mitigated by doctrines and devices other than the mauling of text . . . . For example, it may well be that the undeniable exclusion of ambulances by the text of the ordinance is countermanded by an ordinance or court‑made rule exempting emergency vehicles from traffic rules.” Posner ignores that and pounces on a statement made 273 pages later as a retreat: “The driver who violates a criminal law against high‑speed driving while taking a seriously injured person to the emergency room could be excused by the common‑law defense of necessity.” This is not a retreat: it’s an illustration of a mitigating doctrine. Posner himself distorts his claim by first referring to the ambulance in the third paragraph of his review, unsupported by evidence, then presents his off‑point “evidence”  only four paragraphs from the end of the essay—thirty paragraphs later. Consider another of Posner’s supposed gotchas (all of which suggest an overhasty and determinedly unsympathetic reading). Here’s what Posner says:
Yet in further obeisance to the dictionary Scalia and Garner commend a court for having ordered the acquittal of a person who had fired a gun inside a building and been charged with the crime of shooting “from any location into any occupied structure.” They say that the court correctly decided the case (Commonwealth v. McCoy) on the basis of the dictionary definition of “into.” They misread the court’s opinion. The opinion calls the entire expression “from any location into any occupied structure” ambiguous: while “into” implies that the shooter was outside, “from any location” implies that he could be anywhere, and therefore inside. The court went on to decide the case on other grounds.
But here are the facts. The opinion did not call the entire expression “from any location into any occupied structure” ambiguous. The court said: “[O]ur examination of the plain meaning of the two phrases [from any location and into] reveals a latent ambiguity in the statute; one phrase must be interpreted as modifying or limiting the other, and thus principles of construction are implicated.” Commonwealth v. McCoy, 962 A.2d 1160, 1167 (Penn. 2009). In determining the meaning of the phrases, the court said: “To the ordinary, intelligent citizen looking to the conduct proscribed by [the statute], the plain meaning of the word ‘into’ suggests that the shooter must be located outside the structure; otherwise, he cannot discharge his weapon into an occupied structure” and “reading the statute so that ‘into’ qualifies the term ‘from any location’ yields logical results that do not require adding additional terms to the statute. Under this construction, to be deemed criminal, the statute requires that the defendant discharge the firearm from any location outside the structure, and that the projectile move into the structure. Thus, ‘into’ modifies the meaning of ‘from any location’ to include only any location from which the shooter can physically shoot ‘into’ the occupied structure, including other structures, moving vehicles and any other location outside of the occupied structure.” Id. at 1168 (emphasis added). So Posner’s statement that the shooter “could be anywhere, and therefore inside” is patently incorrect. The court did not, as Judge Posner asserts, decide the case on other grounds. Perhaps he was mistakenly looking at the dissenting opinion. A little fact‑checking would have prevented this and other blunders in Judge Posner’s review. Most of the reviewers thus far—the book was released only 10 weeks ago—have acknowledged the service we’ve provided in illustrating the 57 valid canons of construction. In the New York Times (7-16-2012), Stanley Fish—whose work we cite negatively four times, by the way—praised Reading Law “for making complicated and sometimes arcane points of doctrine seem accessible and even plain.” That was indeed our goal. Edward Whelan has demanded that Judge Posner run a prominent retraction and apology. That would be gratifying, since reputations can be marred by such a high‑profile literary rampage. But I’m not holding my breath.

B.A.G. President, LawProse Inc. 14180 Dallas Pkwy., Suite 280 Dallas, TX 75254

Distinguished Research Professor of Law Southern Methodist University

Twitter: @BryanAGarner

12 thoughts on “Response to Richard A. Posner”

  1. A little fact-checking reveals that Posner was not only correct in his explanation of Commonwealth v. McCoy, but strikingly succinct. It also reveals that it was you who blundered—or intentionally lied in order to save face. When you quote from the opinion, you omit the three paragraphs just prior to the one from which you quote. (So obviously they do not come from the dissent.) These key paragraphs provide the basis for Posner’s summary of the court’s analysis, as can be easily shown.

    In the first, the court considers “into” and concludes based on a dictionary definition that “the plain meaning of the term ‘into’ requires that the original location is outside of the destination.” More important, in the second omitted paragraph, the court considers “from any location,” and concludes that “if considered without relation to the word ‘into,’ the plain meaning of the phrase ‘from any location’ encompasses ‘every’ location the shooter could be occupying, including, necessarily, the interior of the occupied building.” In other words, as Posner states it: “‘from any location’ implies that he could be anywhere, and therefore inside.” So Posner was not, as you say, “patently incorrect.” He was practically quoting the opinion.

    In the third and last of the paragraphs that you omit (actually, you quote from the second half of this paragraph, so you must have known what it said but decided to conceal it from the reader), the court concludes that “given the plain, common sense meaning of both statutory phrases—’from any location’ and ‘into’—it would be difficult to give full logical effect to both. One must yield to the other in some measure. We do not think either party’s argument is so weak or implausible that the statute can be called unambiguous in this context.”

    In other words, as Posner succinctly put it: “The opinion calls the entire expression ‘from any location into any occupied structure’ ambiguous: while ‘into’ implies that the shooter was outside, ‘from any location’ implies that he could be anywhere, and therefore inside.”

    The court goes on to discuss other rationales for supporting its construction of the expression “from any location into any occupied structure,” including the importance of giving “effect to all of the statute’s phrases,” avoiding an “absurd result,” internal statutory consistency (the title of the section of the statute from which the expression is taken does not include a “location qualifier”), and finally “the statutory mandate that penal statutes ‘shall be strictly construed.'” The court explicitly states that this last consideration—which you completely ignore—is important. It means that ambiguities must be interpreted in the light most favorable to the accused, which is what the court ultimately does. It interprets the ambiguous expression “from any location into any occupied structure” so as to limit its scope and, as the court says, “give fair notice of what conduct the statute prohibits.”

    Yet you maintain that the court decided the case on the basis of the dictionary definition of “into”?! Please. That’s dishonest. You’ve been criticized by Posner before—such as when he rejected your oft-stated recommendation that case citations be relegated to footnotes. So you should have known that he wouldn’t let you and Scalia deceive the public, just because he’s shared a few meals with you. (By the way, did you eat sandwiches?)

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  3. Scalia is a warm and engaging individual, at least he was as a professor in the late 70’s; Posner is distant, and coldly analytical, but by far the brighter man.
    It is refreshing to see Posner body slam Scalia’s nonsense, which, like “original intent” a generation ago, was simply an excuse for extremists to attack civil rights.
    Easterbrook was handsome, with a lovely baritone voice, but he was new when i was a student, and my strongest memory of him is seeing him play the new game “Pac Man”, which had just come out.
    All three men were professors at the University of Chicago back in the late 70’s.
    I would hate to have the awesome power of Posner’s intellect turned on me; however, it cheers me to see it turned on the hard-nosed opponent of civil rights that Scalia has become.

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  5. I’m very glad you took the time to draft a response. Having read several of Judge Posner’s books and admired many of his opinions, I assumed he accurately depicted Reading Law and the cases cited therein. Your response makes me question Judge Posner’s motives. I hope Judge Posner takes the time to respond to your post. The New Republic should also give you an opportunity to publish a full response.

  6. A feud between a SC and an appellate judge (genuine or fabricated) is a publicity boon. 10x more potent than a fulsome blurb on the dust jacket.

    I’m certain it will increase your sales.

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