Thursday, September 11, 2014

Passive Aggressive: Scalia and Garner on Interpretation

Andrew Koppelman

Antonin Scalia’s and Bryan Garner's coauthored treatise on legal interpretation, Reading Law: The Interpretation of Legal Texts, is also a melodrama, with sharply drawn good guys and bad guys. The hero is the Faithful and Impartial Judge, the servant of Democracy. The argument is weak and inconsistent with Scalia’s actual practice as a judge. The book nonetheless nicely accomplishes what it is trying to do. Scalia is one of the authors, to be sure, but he is also the protagonist of a narrative. The author’s preeminent concern is seeing to it that you perceive the protagonist as the author intends: as the champion of judicial restraint, against all those liberal oligarchs. If you buy the story of Virtuous Scalia, that empowers Judicial Activist Scalia. 

I elaborate in a review of the book in the literary journal Boundary 2, available here.

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