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Review of “Reading Law: The Interpretation of Legal Texts”

No matter one’s opinion of the jurisprudence United States Supreme Court Justice Antonin Scalia, his recent book,“Reading Law: The Interpretation of Legal Texts” (co-authored with Black’s Law Dictionary editor Bryan Garner) is remarkably useful for any attorney who drafts or interprets legal texts.  While I am not a big fan of Scalia, I found myself surprisingly in agreement with many of the views this book expresses.

Given the amount of time attorneys spend drafting and interpreting legal documents one might expect textual interpretation to be a large component of legal education.  It isn’t.  One of the ironies of legal education is that law school does not have a required course in textual interpretation. This book describes and explains fifty-seven distinct canons of interpretation and discusses thirteen additional canons that the authors reject.  Each elucidated canon includes a bit of legal history, an explanation of the jurisprudential issues the canon addresses, and descriptions of its application in prior cases.  One seeking further support for the canon can locate it within the copious footnotes and bibliography.  This is a staggering work of legal scholarship: I cannot believe it humanly possible to read every work this book cites.

The book has two main goals.  The first is to show methods of statutory or contract interpretation that lead to uniform and predictable outcomes.  Those who do not practice law perhaps cannot appreciate how difficult this task is and how frustrating it can be when a judge rejects a seemingly obvious meaning of a statute or contract based on a misguided interpretation.  These canons are designed to greatly limit judicial discretion, which the authors would argue–again I believe correctly–is often used for anti-democratic purposes and allows the judicial branch to usurp legislative authority.

While this goal is laudable, it is also impossible.  There are few cases in which some of these 57 canons cannot be used to support opposing positions.  It then becomes a matter of deciding which canon(s) to favor in deciding the case–and favoring some canons over others is a matter of judicial discretion at a higher level of abstraction.  Still, it is extremely useful to understand and employ these canons as it does lead to a more rigorous and less discretionary analysis of a given text’s meaning.  I can see myself picking up this book every time I need to analyze or argue differing interpretations of a legal text.

One of the rejected canons is that legislative history is a legitimate method of interpreting statutes.  While Scalia is often described as an originalist, he would more accurately describe himself as a textualist: looking to the text to determine the meaning of that text.  I agree with his view that looking to legislative history to determine a statute’s meaning is poor jurisprudence.  Anyone who follows the legislative process understands that the stated reason(s) a legislator supports a bill may bear no relationship to the actual reason(s).  Further, whose legislative history should a court look to?  A committee report may reflect the views of only a few members of the committee and does not necessarily reflect the views of the majority of the assembly.  A floor speech–at best–only reflects that individual legislator’s view.  And how does the “legislative” intent of an executive who signs the bill to turn it into law come into play?

When I attended law school (1988-91) legislative intent was often discussed as a method of statutory interpretation.  Evidently this was occurring near the end of a period in which the Supreme Court routinely looked to such history to interpret statutes.  As this book notes at pages 373-74, in the 1981-82 term the Supreme Court cited legislative history in 100% of statutory cases.  By the 1998-98 term this was down to 75% and by the 1992-93 term it was further down to 18%, which is approximately where it remains.

There is an apparent contradiction between the common description of Scalia’s approach to constitutional interpretation as “original intent” and his view that legislative intent is an improper method of textual interpretation.  However he would argue [correctly I concede] that his approach isn’t “original intent” but “original meaning” what the authors label the “fixed meaning” canon.  With one exception, I applaud this approach.  This book argues that looking to the dictionaries that would have been used by legislators at the time the statute was enacted is the proper method of determining the meaning of words within the statute.  This approach prevents the meaning of statutes from changing over time as the meaning of words change over time.

Fixed meaning doesn’t limit the application of the statute to new or novel situations.  Thus an old statute banning “dangerous weapons” is not limited in application to weapons that existed at the time of the enactment.

For statutes–which can be amended or repealed as easily as they can be enacted–this approach is reasonable.  If a subsequent legislature wants to amend a statute they should amend the statute rather than having the judicial branch amend the statute through interpretation.  For the constitution, in which language was often deliberately broad and vague and which cannot be as easily amended as it was adopted, this approach seems more crabbed.  I assume the founders used terms like “due process of law” or “necessary and proper” because they expected these terms to be adaptable to conditions they could not anticipate.  Ditto for the 14th Amendment’s terms such as “equal protection.”

The second goal of this book is to justify Scalia’s approach to constitutional interpretation.  For example, the authors’ “Conjunctive/Disjunctive Canon” is used to explain his narrow approach to the 8th Amendment’s ban on “cruel and unusual punishments.”  The authors view the use of “and” rather than “or” to mean that a punishment must be both cruel and unusual to violate the 8th amendment.

I would have appreciated an explaination of how this canon would differentiate the Constitution’s “privileges and immunities” clause from the 14th Amendment’s “privileges or immunities” provision [perhaps it’s that the Constitutional provision is expressed a positive while the 14th Amendment is expressed as a negative].  While not an explicit goal of this book, the authors often note how strict compliance with these canons of textual interpretation encourages legislators to be more exacting in their drafting.  Think of how much controversy could have been avoided if the 8th Amendment either banned punishments that were “both cruel and unusual” or banned punishments that were “either cruel or unusual.” I find the 8th Amendment’s language vague but believers in the “Conjunctive/Disjunctive Canon” do not.

Finally, as someone who often likens the practice of family law to playing Monopoly with a bunch of folks who deign to read the rules, I must applaud the following language at page 348:

The soundest, most defensible position is one that requires discipline and self-abnegation.  If judges think no further ahead than achieving justice in the dispute now at hand, the law becomes subject to personal preferences and hence shrouded in doubt.  It is the age-old wisdom among mature, experienced legal thinkers that procedure matters most: how things should be done, as opposed to what should be done.  As for judges the “how” is fidelity to law.  But it is a hard lesson to learn, and harder to follow.

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