September 1, 2012
Posner catches Scalia in deceptions unbefitting a 1L
Readers of this blog will likely enjoy reading Richard Posner's review of Justice Scalia and Bryan Garner's latest book. Most of our 1Ls in legal writing class quickly learn to avoid the gaffe's Posner points out. But hey, we legal writing professors aren't the ones earning the big bucks. Au contraire.
hat tip: Steve Jamar
September 1, 2012 | Permalink
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Since you've linked to Posner's piece, only fair that you link to Ed Whelan's (so far, 4-part response), which, if accurate, relegates Posner to 1L. http://www.nationalreview.com/bench-memos/316091/richard-posner-s-badly-confused-attack-scaliagarner-part-4-ed-whelan. Since I haven't read the Scalia/Garner book, I can't vouch for either Posner or Scalia/Garner in this instance.
Posted by: Gregory Taggart | Sep 6, 2012 10:49:03 AM
Some good discussion of the first of Whelan's responses over at reddit: http://www.reddit.com/r/law/comments/zb73x/a_response_to_posners_critique_of_scalias_book/ .
My reaction was summed up by the comment from theglassishalf,
"It's pretty easy to reply to a critique of Originalism that says that it's inconsistent by ignoring the inconsistent parts. That's what this essay does.
Posner is not "confused," rather, Posner points out the inconsistencies in Scalia's work. This essay merely takes the counterparts to half the inconsistencies and repeats them back as if they answer Posner's points, without actually engaging with Posner's argument.
In other words, Posner is saying that Scalia's theories can be used to prove "A" and also prove "Not A." This essay responds to that critizism by saying that "you say A, but here Scalia proves it's Not A." Then, later, far enough later that the reader won't notice, this essay says "Posner says "Not A," but here Scalia proves that it's "A."
Posner is right. Shameless plug: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1928049"
Posted by: Mike Brown | Sep 9, 2012 9:39:57 AM