I'm having a real problem with this blog post.
As you've probably heard, Justice Scalia and Bryan Garner have a new book out, Reading Law: The Interpretation of Legal Texts. Inveterate Garnerphile that I am, I grabbed a copy as soon as it was available and dove in.
And . . . meh.
It's been weeks (or maybe even a month by now) since I read the book, and I've been meaning to do a review.
But I just can't make myself do it. Because . . . meh.
The book's just not that good.
It kills me to write that. I love the earlier Scalia/Garner effort, Making Your Case. I have three copies of it on my bookshelf right now, because I hand one out to every new associate who joins our firm.
I defer to no one in my regard for Garner. Alongside those copies of Making Your Case, I've also got at least Modern American Usage, Modern Legal Usage, The Winning Brief, The Redbook, The Winning Oral Argument, and Black's Law Dictionary--maybe more; my eyes are bad. And Justice Scalia is maybe the best legal writer, ever.
But their latest work falls flat.
I don't know why, exactly. I get the need for an accessible book on how to interpret legal documents. My law school provided little enough of that instruction, and from what I can tell from the briefs I read these days, it wasn't alone. I recently saw a brief in a noncompete case that didn't even quote--never mind try to parse--the challenged language from the contract. I've also seen briefs in statutory interpretation cases that basically ignore the language of the statute, and not for any readily discernible tactical reason.
So I accept the idea behind Reading Law. I guess I just don't enjoy the execution.
For starters, I didn't feel like the book was speaking to me. Large chunks of it had less to do with the work of interpreting law and more to do with Justice Scalia settling old scores with justices, judges, academics, commentators, the media, the guy who cut him off on the Parkway, his Cub Scout leader--and if I recall correctly--Dahlia Lithwick.
Also--and maybe this is just me--when I apply the authors' interpretive tools, I am not always inexorably led to their result. The textualist approach just strikes me as more manipulable than Scalia and Garner are willing to concede. So you can work your way through some of their examples, but never get the promised payoff. Given the subject matter, that can makes for a tedious read at times.
Finally, the structure of the book is just weird. It's like a book on statutory interpretation sandwiched between two law review articles I would never, ever willingly read--one about why the textualists have been right all along (like, since the Middle Ages), and the other about how to use dictionaries. If I had to guess, I would say that Justice Scalia was largely the driving force behind the former, and that Garner was responsible for the latter.
That's not to say that the book is all bad. Much of the meat of the book, which analyzes individual canons of interpretation in some detail, is quite good--especially if (like me) you have trouble remembering exactly what ejusdem generis means.
But overall, Reading Law is nowhere close to making my list of must-reads for new lawyers.