August 12, 2012

Review Corner

First, the elephant in the room. Scalia and Garner's Reading Law: The Interpretation of Legal Texts was $40 -- on Kindle! "Does the Eighth Amendment no longer hold, Nino?" If anybody wants I have an old, first-gen Kindle I could put it on and lend. Ow!

I cannot pass on any book by a sitting Supreme Court Justice at any price, and I cannot complain about this one; it was informative and entertaining. Like David Deutsch, Nassim Taleb, or Thomas Pynchon, it is great to get an invitation into a mind of that caliber.

Scalia's acerbic wit is on display throughout.

In a curious and lengthy passage, Judge Richard A. Posner has likened a judge who follows the unintelligibility canon to a platoon commander who, on receiving a garbled message, does nothing and presumably allows his troops to be slaughtered.
The analogy limps.

One more word than "Jesus wept." But Ow!

More importantly, he promotes his judicial philosophy of originalism versus both the purposivist, living Constitution crowd and strict textualists. The book is presented as 70 common law cannons which are frequently used in judging cases. Each gets a description and most get an example case or two and the authors' opinion of whether it was applied wisely in the particular instance.

One could hardly imagine a more sweeping negation of the possibility of laws that accurately represent the judgment of the people, laws whose content is predictable, and judges who subjugate their personal views to the rule of law. "A government of men, not of laws" summarizes this cynical view, which invites judges to do whatever they like, since they cannot do otherwise--the doctrine of predestination applied to judicial decisions.

It's jurisprudential philosophy -- but in a very technical wrapper. Actual cases, many outside of or predating the United States, and difficult cases provide an appreciation for complexity that your typical pundit-class commenter may not completely grasp.
Contrary to the praise heaped on the Shakespearean character Portia for holding that Shylock could take his pound of flesh but not spill a drop of blood ("O upright judge! . . . O learned judge!"), it was a terrible opinion. She should have invoked the principle that contracts to maim are void as contrary to public policy. Her supposedly brilliant rationale ignored the well-acknowledged predicate-act canon.

Most importantly, I enjoy the authors' respect for Constitutional principles, most notably separation of powers and the job of legislative bodies in drafting the text. Scalia may be the béte noir of the left, but he is extremely respectful of other Justices, judges, and circuits. He has no compunction in attacking their opinions, but reading this book (or Bryers's or Stevens's or O'Connor's) one is struck by a higher level of respect and congeniality than we artisans ascribe to the Court.

A great read and a deeper look than I was expecting. Four stars.

Review Corner SCOTUS Posted by John Kranz at August 12, 2012 10:23 AM
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