Justice Scalia (with Brian Garner) has a new book out that is drawing attention as he presents it around the country: Reading Law: The Interpretation of Legal Texts. Its most enduring lesson may not be his proposal for reading texts, but his unequivocal denunciation of common law methods and of law schools for continuing to teach them in the 21st century. He sees law schools, as Walter Olson does, as “Schools for Misrule.”
Scalia writes: “American legal education has long been devoted to the training of common-law lawyers, and hence common-law judges. What aspiring lawyers learn in the first, formative year of law school is how to discern the best (most socially useful) answer to a legal problem, and how to distinguish the prior cases that stand in the way of that solution. Besides giving students the wrong impression about what makes an excellent judge in a modern, democratic, text-based legal system, this training fails to inculcate the skills of textual interpretation.”
What we need are good rules applied according to their terms. We don’t need every case to be a contest in which we debate which rules are appropriate. Scalia is right: the rule of law is a law of rules.
Read more: James R. Maxeiner, Scalia & Garner’s Reading Law: A Civil Law for the Age of Statutes? (August 18, 2012), available at SSRN: http://ssrn.com/abstract=2132581; James R. Maxeiner, Thinking Like a Lawyer Abroad: Putting Justice into Legal Reasoning, Washington University Global Studies Law Review, vol. 11., no. 1 page 55 (2012), available at http://law.wustl.edu/WUGSLR/Issues/Volume11_1/Maxeiner.pdf , Walter Olson, Schools for Misrule: Legal Academia and an Overlawyered America (2011) http://www.amazon.com/Schools-Misrule-Academia-Overlawyered-America/dp/1594032335 .
3 Comments
Most of the “rules” described by the book are undisputed, and are routinely taught in law schools and used by courts. The problem of interpretative rules is more an issue right at the top, often with Scalia himself; he has a preferred outcome, and so he bends or disregards these supposedly sacrosanct “rules” to create that outcome. Most of his signature cases involve him disregarding one rule or another for a preferred outcome.
The only weakness in the textualist argument is its contention that any adjustments required for changed circumstances should be accomplished by changing the text itself through the democratic process of formal amendment rather than by the non-democratic fiat of judicial interpretation. The problem is that the amendment process is moribund, the product of too stringent thresholds to get an amendment through Congress and the complete ineffectiveness of the second amendment method of a state-called constitutional convention. To cure this one weakness we must revive the amendment process. One effective way to do this would be to eliminate the requirement that the states must use the unworkable mechanism of a convention to initiate constitutional amendments. This will permit constitutional change to occur though the orderly democratic process of amendment rather than by the obscure dictates of an unelected elitist judiciary. See http://www.amendmentamendment.com
Scalia’s book is superbly done; I recommend it highly.