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Scalia and Garner on Reading Law

At NLJ, Tony Mauro reviews Reading Law: The Interpretation of Legal Texts, the second book by Justice Scalia and Bryan Garner.

Overall, the 567-page book is an extended plea for judges to hew to the text of statutes and the Constitution in making their decisions and to ignore extraneous factors such as legislative history, the workability of the statute, and the presumed purpose of legislation - though it says that the tongue-twisting "purposivist" approach is sometimes relevant. "We look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation" about the drafters' intentions and the law's anticipated consequences.
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In the preface, Scalia and Garner address that point. "If pure textualism were actually a technique for achieving ideological ends, your authors would be counted extraordinarily inept at it." Describing himself as a "confessed law-and-order social conservative," Scalia said textualism has led him to seemingly liberal positions on criminal sentencing, confronting witnesses, punitive damages and the constitutionality of bans on burning the American flag. For his part, Garner said he is pro-choice and supports same-sex marriage, but "finds nothing in the text of the Constitution that mandates these policies."
Nonetheless Scalia, referring to himself in the third person as "your judicial author," said he "knows there are some, and fears that there may be many opinions, that he has joined or written over the past 30 years that contradict what is written here - whether because of the demands of stare decisis or because wisdom has come late." He added that he could not swear that he would not do the same in the future, in part because "a judge must remain open to persuasion by counsel." But, Scalia concluded, "the prospect of 'gotchas' for past and future inconsistencies holds no fear."

For an example of belated wisdom, compare Hitchcock v. Dugger, 481 U.S. 393 (1987) (opinion of the Court by Scalia, J.) with Walton v. Arizona, 497 U.S. 639 (1990) (Scalia, J., concurring).

Why does Scalia refer to himself in the third person?  That is the old way, but many modern writing authorities caution against the awkward avoidance of the first person.  See B. Garner, Garner's Dictionary of Legal Usage 363 (3d ed. 2011). 

This writer never refers to himself in the third person.  Well, hardly ever.

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