Bench Memos

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Posner’s Bewildered Reply to Garner


See here for the collection of my series of posts on Posner’s review.

Now that I’ve addressed Richard Posner’s diversionary ad hominem attack on me, let’s look at the merits—or, more precisely, the stunning lack of merit—of Posner’s response (beginning on this page) to Bryan Garner’s critique of his review of the book that Garner co-authored with Scalia:

Posner states that Garner “repeats criticisms” that I have made, and he uses that observation to ignore the criticisms that I have made. In fact, Garner credits me for having “done a masterly job of demonstrating why the six examples that Judge Posner assails … are entirely correct.” Far from repeating what I have to say on Posner’s attention-grabbing—and, it turns out, incompetent—claim that Scalia and Garner have misrepresented the cases they cite, Garner is embracing, and incorporating by reference, my Part 2 and Part 3 critiques. It is, I would submit, telling that Posner fails to take on my critiques while giving his readers the false impression that he is doing so.

Any competent reader of Scalia and Garner’s book would recognize that they cite cases for the specific purpose of illustrating particular canons—not, as Posner contends, as “exemplars … of textual originalism” in general. It’s bad enough that Posner somehow failed to recognize that elementary point when he published his review. It’s even worse that he won’t even accept Garner’s simple explanation that that’s what he and Scalia are doing.

More amazingly, Posner tries to prove that Garner’s explanation is “untrue” by recycling Posner’s woeful confusion about the rooster case. As I explained in my Part 2 post:

Posner says that when he read Scalia and Garner’s statement that the Kansas supreme court “perversely held that roosters are not ‘animals’” (and that cockfighting therefore did not violate a law against cruelty to animals), he “found it hard to believe,” so he “looked up the case” and “discovered that the court had not held that roosters are not animals.”  “In fact,” he writes, “the court said that ‘biologically speaking a fowl is an animal,’ but that it was not in the class of animals protected by the statute.”

Posner’s quarrel is baffling. When Scalia and Garner state that the court held that roosters are not “animals” (“so that,” as they immediately continue, “cockfighting was not outlawed by a statute making it illegal to ‘subject[] any animal to cruel mistreatment’” (p. 72)), the intelligent legal reader would understand that, by putting the word animals in quotes, they are referring to the statutory term. No intelligent legal reader would understand them to have alleged that the court was asserting that roosters are not, as a biological matter, animals. Their statement of the court’s holding is sound, as the reader will discover for himself by reading the ruling.

Posner completely ignores what I have written—the very account that Garner has embraced—and repeats his incompetent error.

Posner then purports to provide another example of a case that Scalia and Garner supposedly misrepresent and, with bravado, says that he “will be glad to furnish others on demand.” But Posner’s newest example, like all his others, rests on his false claim that Scalia and Garner are using the case for purposes other than to illustrate a specific canon. His offer to furnish other such examples brings to mind the inmate in the insane asylum who will gladly offer endless evidence, of quality comparable to Posner’s, that he is indeed Napoleon.

Indeed, to put the matter somewhat delicately, Posner’s review, his response to Garner, and his ad hominem ducking of my critique would seem to demonstrate that Posner is, on the matter of Scalia and Garner’s book, beyond the reach of reason.


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