Tuesday, September 25, 2012

The Scalia-Posner Controversy Heats Up

Recently, we reported on Judge Richard Posner’s highly critical review of “Reading the Law: The Interpretation of Legal Texts” by Justice Antonin Scalia and Bryan Garner. More recently, Justice Scalia gave an interview in response in which he accused Judge Posner of lying. Here are excerpts from a report on that interview appearing in the Chicago Tribune:

U.S. Supreme Court Justice Antonin Scalia on Monday escalated a war of words with a prominent appeals court judge, saying the judge lied in a recent criticism of Scalia's judicial philosophy.

Scalia, 76, the longest-serving justice and a leading conservative on the court, said Judge Richard Posner, of the Chicago-based 7th U.S. Circuit Court of Appeals, lied in a review in August of a book co-authored by Scalia.

In the review, Posner accused Scalia of deviating from his own strict, text-based approach to interpreting law when he struck down a District of Columbia handgun ban in 2008 by considering the legislative history behind the law.

"To say that I used legislative history is simply, to put it bluntly, a lie," Scalia said in an interview with Reuters Editor-in-Chief Stephen Adler.

The 567-page book sets out the legal philosophy, called "textual originalism," which says judges should adhere strictly to the text of laws and give them the meaning understood by the people who adopted them. Laws do not change in meaning over time, they contend.

The book has sparked a heated debate in legal circles after Posner accused the authors of making flawed arguments based on sloppy research. Posner said numerous cases that the authors held up as models of text-based decisions were influenced by other factors, including judges' personal views.

Scalia fanned that debate on Monday, saying Posner was only able to make such an assertion because he was writing in a non-legal publication, The New Republic. "You can get away with it in The New Republic, I suppose, but not to a legal audience."

Judge Posner displayed judicial temperament in declining to comment on the interview.

(ljs)

http://lawprofessors.typepad.com/legal_skills/2012/09/the-scalia-posner-controversy-heats-up.html

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