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Reading Law or Reading Ourselves: How to Think About Posner v. Scalia

By Ross Guberman

“Hatchet job.” “Prey on the unknowledgeable.” “Extreme conservative.” “Riddled with inaccuracies.” “Seriously off the rails.” “Lying.” “Incompetent.” “Tendentious.” “Disingenuous.” “Beyond the reach of reason.”

No, these charges are not outtakes from Obama’s and Romney’s campaign ads. The real source: the defenders and critics of Reading Law: The Interpretation of Legal Texts, Justice Scalia and Bryan Garner’s new book on construing disputed language.1

How has such a lofty topic generated so much heat? The humble story of a sandwich, of all things, can help explain how the dispute over this book has become so passionate, if not downright ugly.

Of Sandwiches and Men

Panera Bread had a lease to operate one of its sandwich shops in a Massachusetts shopping center. Under the agreement, the shopping center was not allowed to lease to any other establishment that received more than 10 percent of sales from sandwiches.

Along came Qdoba, a Tex-Mex fast-food chain hawking tacos, burritos, and quesadillas. Qdoba wanted to lease space in the same shopping center, and thus a profound legal question arose: Is a taco or a burrito a “sandwich”?

Although the lease never defined “sandwich,” the shopping center was confident enough that a taco didn’t qualify that it decided to lease the space. But then Panera Bread, no doubt irked about having to compete for hungry customers, tried to enjoin the shopping center from doing so.

What did the trial court do, and what should it have done? With no definition in the contract to aid it, how should a court decide whether a burrito is a “sandwich”? Should it use common sense? Consult a dictionary? Seek evidence of what the parties intended? Consider the broader purposes of the lease? Or worry about how its construction of “sandwich” might affect future contract negotiations?

Your answers to these questions are a window into how you envision the role of the courts.

Canon Fodder

Those same questions drive Scalia and Garner’s entire 567-page tome. Ambitious in scope and exhaustive in detail, the book has three broad goals: First, to show how courts interpret disputed terms in contracts, statutes, and the Constitution. Second, to argue about how courts should interpret language in those documents: by applying what’s known as “original-meaning textualism”— the notion that a word or phrase means what a reasonable reader at the time would have thought it meant. And third, to shoot down 13 purported fallacies, or “falsities,” advanced by textualism’s critics, who would prefer that judges consider not just how a dictionary defines “sandwich” but also the lease’s intent, purposes, and consequences.

The book’s triumph is that it catalogues 57 canons of textual construction, some better known than others, and then uses helpful examples and vivid writing to display those canons in action. The tone is confident, even cocksure: The authors lobby preemptive strikes against anyone who would accuse their originalist-textualist approach of being crabbed, unrealistic, or worse.

Madness to the Method?

Scalia and Garner contend that their book is prescriptive (about what courts should do), but the fusty word “canon” and the many discussions of decided cases suggests a descriptive approach (what courts do do). In their zeal to give examples from decided cases, the authors might have blurred the line in the eyes of many readers, and not just Judge Posner, who attacked the book in The New Republic. The title of his review: “The Incoherence of Antonin Scalia.”2

Part of that “incoherence,” Posner suggests, is that in cases like the sandwich dispute, courts rely on more than just a dictionary definition—in other words, they rely on more than just “original-meaning textualism” to decide what a challenged term like “sandwiches” means. Scalia and Garner correctly point out that the Massachusetts trial court3 relied on a Merriam-Webster dictionary definition of sandwich: “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.” Even though that definition excludes many thick-breaded and open-faced sandwiches, the court found that a burrito didn’t make the cut: “The injunction was properly denied on grounds that no reasonable speaker of English would call a taco, a burrito, or a quesadilla a ‘sandwich,’” note Scalia and Garner.

Neither Posner nor Scalia and Garner mention that although the court gave the dictionary a publication date of 2002, the definition of “sandwich” it used dates from the dictionary’s original publication in 1961. Webster’s updates its unabridged dictionary only by adding addenda of words that have come into use since the previous edition. So what the court cited as a contemporary definition was actually a half-century old.4

In any event, Posner points out that the court relied on much more than just that dictionary definition—and accuses the authors of hiding this inconvenient truth: “Scalia and Garner stop there,” says Posner, “as if that dictionary reference were the court’s entire decision, thus confirming the use of the dictionary as a guide to the meaning of legal documents. But the court had not stopped with the dictionary.” In a book claiming that smart courts are textualist courts, Posner suggests, this error-by-omission is a big deal: It reveals the Garner-Scalia approach to be simply unworkable.

Posner is right on the facts: Besides the dictionary definition, the court cited everything from expert affidavits on the meaning of “sandwich” to evidence about what the parties intended “sandwiches” to include, evidence of the parties’ negotiations, “common sense,” and even the most “anti-textualist” evidence imaginable: the other Mexican-style restaurants surrounding the shopping center when the lease was negotiated. Posner nearly charges the authors with scholarly malpractice here, accusing them of engaging in sloppy research, results-oriented analysis, or both.

In a sharp online response in The New Republic,5 coauthor Bryan Garner, the highly regarded editor of Black’s Law Dictionary, counters that he and Scalia discuss cases like the sandwich dispute to illustrate the proper use of canons, not to describe all the evidence that the court reviewed: “Most of Judge Posner’s criticisms of our research were founded on the assertion that the cases cited used, in their rationales, more than the single canon being illustrated.”

But that’s not exactly what Judge Posner is criticizing. In the Panera-Qdoba battle, for instance, the court didn’t just heap a bunch of neat canons and textualist tools onto the word “sandwich.” Instead, it did precisely the opposite of what the authors advise: It considered such extrinsic evidence as “common sense,” expert testimony, and the presumed intent of the parties.

So you can see why Posner accuses the authors of misrepresenting case law and thus hiding the flaws in their approach. But you can also understand the authors’ rejoinder about the real purpose of their endeavor: to prescribe best practices, not to describe the way things are now.

Of Politics and Text

That said, Posner’s gripes go well beyond methodology. With disputes over language, Posner says, courts shouldn’t limit themselves to dictionary definitions and “original meaning” in the first place. The sandwich case gives Posner fodder here. The dictionary definition of “sandwich” that the court used is narrow, even anachronistic in its 1950s wording: not all sandwiches have two slices of bread, not all sandwich bread is thin, and not all sandwich fillers are thin. “Dictionaries are mazes in which judges are soon lost,” says Posner. “A dictionary-centered textualism is hopeless.”

Posner thus urges his fellow jurists to think more broadly—and pragmatically: “[J]udges who consult dictionaries also consider the range of commonsensical but non-textual clues to meaning that come naturally to readers trying to solve an interpretive puzzle.”

Original-meaning textualists like Garner and Scalia suggest that if you’re faced with an “interpretive puzzle” and want to ferret out some objective truth, a contemporary dictionary is all you need. For Posner, though, this breed of textualism is deceptively slanted, particularly when it comes to statutes: by forbidding courts from applying common sense to situations that no drafter could foresee, self-proclaimed “textualists” have a cramped view of legislation, making them hostile to governmental action—and thus aligned with the political Right. “Text as such may be politically neutral,” says Posner, “but textualism is conservative.”

Posner doesn’t distinguish between textualism applied to the Equal Protection Clause and, say, textualism applied to an indemnification provision in a commercial agreement. But it is no coincidence that the defenders of textualism tend to be political conservatives (to underscore this point, Posner even accuses Scalia and Garner’s most fervent online defender, the National Review’s Ed Whelan, of running “an extreme conservative think tank” that pushes “conservative theology”—a charge that Whelan, who calls Posner’s critique “slipshod and untrustworthy,”6 denies).

This link between textualism and politics is weakest with contract language. (Are there really liberal and conservative approaches to construing “sandwich”?)

Is the link stronger with statutory construction? The answer depends on whether you buy Posner’s notion that limiting the meaning of text to what it meant when it was drafted is just another way of limiting the size and scope of government. “Textualism hobbles legislation,” Posner explains, “and thereby tilts toward ‘small government’ and away from ‘big government,’ which in modern America is a conservative preference.”

With constitutional language, though, textualism’s conservative thumb-on-the-scales is harder to deny: By construing “militia” or “cruel and unusual punishment” to mean only what the words meant to your typical eighteenth-century citizen, judges are making a political choice, not a neutral one—a choice that is by nature backward-looking or conservative and not forward-looking or progressive.

It is perhaps for that reason that both authors can bristle with defensiveness about how their textualist approach applies to hot-button political issues. Justice Scalia, for example, cites his decision striking down a flag-burning statute, among others, as proof that textualism need not always prompt a conservative result. In Posner’s view, though, those decisions are the exceptions that prove the rule: The 57 “canons of construction” in the book, Posner notes, provide “all the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.”

Garner, for his part, stresses that although he is a “social liberal” who favors gun control, abortion rights, and the right to same-sex marriage, he endorses decisions by Justice Scalia and others who find no such rights in the Constitution.

Reading Law, or Reading Ourselves?

Scalia and Posner are titans of the bench, and like most celebrity judges, they each have many fans and foes. It’s no surprise, then, that so much of the online commentary about this book has focused on egos, agendas, and personalities. (During his book tour for Reading Law, Scalia suggested that Posner is “lying.”7) Yet as much as all this gossip makes for good reading, it obscures deeper issues about the role of judges in a democratic society.

Chief Justice Roberts famously said during his confirmation hearings that the job of a judge is to call balls and strikes and not to pitch or bat. What appears to bother Judge Posner and his allies is that textualist judges like Scalia who claim to be just calling balls and strikes are at bat far more than they admit—or even realize. That’s why the Posnerites contend that the textualist dream is mostly a fantasy.

Do we construe “sandwiches” in a lease according to what a dictionary tells us the word means, to what the entire lease suggests the parties meant, or to why Panera Bread would have wanted exclusivity in the first place? Does your answer change if you are asked whether we should subject “cruel and unusual punishment” to eighteenth-century standards or to those of our own time?

Practice Pointers

These questions are lofty and important. But does the book impart any lessons about day-to-day practice? Here’s one global conclusion from the many cases in the book: Even with words as concrete and seemingly unambiguous as “sandwich,” err on the side of defining each term if you’d rather not roll the dice in court. After all, did Panera ever imagine that it would be stuck with a definition of “sandwich” from the Eisenhower Era? Did Qdoba ever think that the fate of “sandwich” would rest in part on expert affidavits? That said, defining terms can invite problems of its own.

More generally, then, perhaps some language choices are too concrete. Should Panera Bread have thought about its real goal—exclusivity—and either defined “sandwich” broadly enough to ward off competition or, better yet, targeted the fast-casual industry rather than a specific food product? Had it done so, the shopping center lawyers might have objected to being forced to turn down such a wide range of establishments.

So what if all else fails, and you find yourself in a dispute about what a word or phrase means after the fact? Which arguments will resonate, and with what judges? What paper trail—or parol evidence trail—should you develop along the way?

One theme implicit in Posner’s work, including his book How Judges Think, is that judges themselves don’t always know why they decide cases the way they do. With America’s political and legal culture so enamored of “applying the law, and not making it,” judges have every incentive to claim, even to themselves, that they are just middlemen transmitting a neutral set of rules.

Reality might be messier. One of the great ironies in the sandwich case, for example, is that the court actually found the word “sandwich” to be unambiguous—and then proceeded to consider many sources other than the text of the lease itself in its quest to find the “plain meaning” of “sandwich.” The lesson here is that if you need to argue about what an undefined term means, you’ll want to craft your analysis around dictionaries—but just for safety’s sake, you should also hit on any extrinsic sources that might favor your reading as well.

The Massachusetts sandwich case alone suggests many possible avenues:

  • Drafting history of the challenged provision
  • Select dictionary definitions of the challenged term
  • “Common sense”
  • Evidence of the intent of the parties based on negotiations8
  • Evidence of the intent of the parties based on tangible proof
  • Industry expert testimony
  • Academic/ governmental expert testimony
  • Case law construing the challenged term in other contexts
  • Purpose of the provision
  • Purpose of the agreement (or statute)

By helping courts resolve the “interpretive puzzle” through these different lenses, you can appeal to both the Posner and Scalia wings of the bench. Even more important, you may also appeal to judges who think they belong to one camp, but who are subliminally swayed by arguments aimed at the other.

About the Author

The President of Legal Writing Pro and an adjunct professor at George Washington University Law School, Ross Guberman is the author of the critically acclaimed Point Made: How to Write Like the Nation’s Top Advocates (Oxford 2011). A graduate of Yale, the Sorbonne, and The University of Chicago Law School, he has conducted more than 1,000 workshops for law firms, federal judges, and governmental agencies. Ross can be reached at ross@legalwritingpro.com.


 

1. Antonin Scalia, and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (St. Paul, MN: Thomson/West, 2012).

2. Richard A. Posner, “The Incoherence of Antonin Scalia,” The New Republic, August 24, 2012.

3. White City Shopping Center, LP v. PR Restaurants, LLC, No. 06-196313, 2006 WL 3292641 (Mass. Super. Ct. Oct. 31, 2006).

4. Merriam-Webster’s Ongoing Commitment

5. Bryan A. Garner, and Richard A. Posner, “How Nuanced Is Justice Scalia’s Judicial Philosophy? An Exchange,” The New Republic, September 10, 2012.

6. Ed Whelan, “Richard A. Posner’s Badly Confused Attack on Scalia/Garner—Part 1,” National Review, August 31, 2012.

7. Richard Posner, “Richard Posner Responds to Antonin Scalia’s Accusation of Lying, The New Republic, September 20, 2012.

8. See United Rentals Inc. v. Ram Holdings, Inc., 937 A.2d 810 (Del. Ch. 2007); In re IBP, Inc. S’holders Litig., 789 A.2d 14, 65 (Del. Ch. 2001).

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