September 11, 2012

Bryan Garner defends the book he wrote with Justice Scalia against the attack by Judge Posner...

... and Posner responds to the attack. Posner's response begins:
Bryan Garner’s letter repeats criticisms by the National Review blogger Ed Whelan, a former Scalia law clerk who is the head of the Ethics and Public Policy Center, an extreme conservative think tank preoccupied with homosexuality (which Whelan believes is destroying the American family), abortion, embryonic stem cell research, and other affronts to conservative theology.
Why is that a good way to begin the response? Garner's essay ends:
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.
It's a dispute about the methodology of legal interpretation, but it's devolved into something that seems oddly personalized.

Garner also makes the argument: Stanley Fish liked our book:
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.
As if Posner would stand down because Fish offered the blandest of praise.
Fish did praise it — in a review in which he also said that the book’s “thesis that textualism is the one mode of legal interpretation that avoids subjectivity and the intrusion into the judicial realm of naked political preferences” is wrong.
***

Here's the book — "Reading Law: The Interpretation of Legal Texts." Who is it for? Even the Kindle edition costs $40. I won't pay that much for a book that seems to be re-explaining a very familiar theory, even if it has lots of examples to make things super-clear. I tend to suspect that the clarity is achieved at the expense of honesty about what is really happening in the cases. Note that Fish said the book made complicated matters "seem accessible and even plain." "Seem" is the operative word.

18 comments:

CWJ said...

Posner's opening is simply setting the stage so that all right thinking people know whom to boo.

Actually, I almost stopped reading your post at this point, because of this quote. I thought what's the point. It's like a bar fight. I'm not interested in what started it. Don't have an interest in breaking it up, and don't want to be anywhere near it in case I get hurt.

Saint Croix said...

Why is that a good way to begin the response?

It's an ad hominem attack, which will get Posner despised in scholarly circles.

So it's a political appeal. He's writing for a political audience, trying to showcase how liberal he is.

BarryD said...

It's the "If you drive a Volkswagen, you're just like Hitler!" logical fallacy.

BarryD said...

"which will get Posner despised in scholarly circles"

"Will" does not mean "really ought to".

whoresoftheinternet said...

Arranging deck chairs on the Titanic.

Arguing for priority in the line for the electric chair.

John Roberts, traitor to this nation, has already completed Obama's shredding of the last bits of the document formerly known as the U.S. Constitution.

Everything here is like the backbiting and snark that went on following the takeover of Rome by Augustus.

Saint Croix said...

"Will" does not mean "really ought to".

Notice how it jumped out at Althouse? Lawyers are trained to attack the argument, not the person making the argument. For somebody with Posner's reputation to open with an ad hominem is embarrassing.

And he's so mad he's attacking people who liked the book!

And of course Posner is more than a legal scholar. Posner is a judge on the court of appeals. He is supposed to be dispassionate and able to follow the law fairly.

Who believes that now?

Posner's jurisprudence is based on attacking textualism. Everything he writes is designed to undercut our ability to read and follow law. But now he's undercutting his own authority as an impartial judge!

He might as well be Tushnet now.

Saint Croix said...

Mark Tushnet is famous for arguing that all cases should be decided by how they advance the cause of socialism.

Of course, last time I checked Posner wasn't a socialist. But you're clearly signing on to Posnerism. It's the World According to Posner.

Hope you like whatever he likes!

David said...

How pissed is Posner that he will never be on the Supreme Court? Seems to me that might be the underlying irritant.

Revenant said...

Posner would make a good Supreme Court justice. Unfortunately he's not partisan enough to ever be nominated as one.

elkh1 said...

Posner, a closet gay? Was that the hold the Dems had on him?

ricpic said...

The actual argument between Garner and Posner, as set forth in TNR article, is much less crude than Posner's opening fusillade against "extreme conservatives," and frankly I think Posner has the better of it. For example: Garner admits that a park sign stating "No vehicle is permitted in the park" amounts to a legal exclusion of ambulances entering the park, but only if a judge follows the dictionary definition of vehicle, which would also exclude baby carriages and bicycles. Well, yeah. Which is Posner's response. If the rule is "No vehicle is permitted in the park" and there are no written exceptions to that rule a judge can't define an ambulance as something other than the dictionary definition of a vehicle to get around it.

Thomas said...

Fish didn't offer the blandest of praise. He said "The argument is carried by analyses of innumerable cases, each of which is used to elaborate and illustrate a particular canon. The economy with which the cases are presented and explicated is remarkable. The reader is at once entertained –humorous asides abound — and initiated into the rigorous yet often wacky world of the law. The authors follow Horace’s injunction to both teach and delight. In short, this is a wonderful book."

paul a'barge said...

Posner has turned out to be a huge pussy.

t-man said...

What little respect I had left for Posner (and I used to have a lot), is now completely gone after that single paragraph.

Richard Dolan said...

Posner is so old fashioned and out of date. There was a time when criticism (literary, anyway) was an exercise in biography. But everyone else has moved past that. Posner seems to think that, in answering Garner, the place to begin is with Whelan's biography. His bad (even if, as seems unlikely, he got the biography right). Posner wants to deconstruct Whelan rather than the author's text.

Even if biography were still the focus of criticism, its purpose would be to help understand the the themes and argument of the author under discussion. The authors are Scalia and Garner. Whelan's got nothing to do with it (other than giving his reasons for thinking Posner's initial critique was lousy). Biography, even if it weren't focused on the wrong fellow, was never intended as a substitute for engaging them.

There was a time when officials and writers of Posner's stature wouild eschew such cheap retorts. Progress, it seems, is not always a good thing. But that was part of Garner's point, and one of his reasons for sticking to text. Not surprising that Posner will have none of it.

tim maguire said...

I've always found Posner over-rated as an intellectual. He weighs in early and often on a wide variety of subjects with the near-inevitable result that his opinions are shallow and often careless.

I don't understand how he gets the level of respect he enjoys.

Methadras said...

Leftards can't help themselves. They are negative people with negative aspirations for everyone else but themselves.

Simon said...

tim maguire said...
"I've always found Posner over-rated as an intellectual. He weighs in early and often on a wide variety of subjects with the near-inevitable result that his opinions are shallow and often careless."

Indeed. Everyone who studies law has that impressing first encounter with Posner, that sense that this guy's really impressive. After a few years, the spell wears off. He seems forceful and compelling at first blush, with an easy, conversational writing style that's very enjoyable, but after a while, you start noticing cracks—what looks breezy at first starts to look glib, and what looks self-confident at first starts to look cocksure. I enjoy Posner's writing (particularly his fiction, such as that under discussion), but I'm often left with the uneasy feeling that things are more or less certain than they would have me believe, or that things are being left out about which I want to know. There are other judges in this circuit who do the conversational writing style better (Easterbrook), and who write much better, period (Sykes).

After a long glide into disenchantment, I shook the dust off my feet with regard to Posner a couple of years back when he wrote a blog post about a subject that I happened to know quite well, and he made some fundamental blunders that completely undercut his analysis. That really knocked his credibility with me, because it made me suspicious that his analysis of other issues, about which I know less or nothing, might be revealed as equally shaky if I knew more about the subject. Falsus in uno, falsus in omnibus.

A compelling orchid, but with a short season.