Wednesday, September 19, 2012
From the Huffington Post:
Over the last couple of weeks, Justice Antonin Scalia and Judge Richard Posner have been engaged in an unusual public feud over the role that legal rules play in judicial decision making. In The New Republic, Judge Posner wrote an exceptionally harsh review of Scalia's new book Reading Law: The Interpretation of Legal Texts, written with Bryan Garner. Scalia's book presents over 50 canons or legal rules that he and Garner suggest can and do help judges decide hard legal issues. In a lengthy response, Posner demonstrates that Scalia's rules cannot decide cases, that the sources and cases the authors cite don't stand for the propositions for which they are asserted, and that, of course, at the end of the day, what decides cases are the judges' personal and political values, preferences, and balancing of the equities of the parties' positions, not pre-existing legal rules.
The rest of the article discloses how nasty the confrontation has become.