Scalia & Garner v. Posner, Round VI: Garner Replies to Posner, Kinda

August 31st, 2012

Following up on yesterday’s Round V, with Posner striking a blow against Scalia and Garner, now we have another volley.

This exchange between Ted Frank and Bryan Garner on Twitter suggests that Garner was blindsided by Posner’s review. Also, Garner’s response is non-responsive.

Let’s see if Justice Scalia gets in the mix.

Update: Ed Whelan chimes in with a lengthy defense of Scalia (his former boss) and Garner. This part towards the end deals with Posner’s allegation that the authors omitted evidence:

In his leading item in support of his contention that “omitting contrary evidence” is “Scalia and Garner’s favorite rhetorical device”—the “is a taco a sandwich?” case that I’ve discussed—Posner falsely contends that Scalia and Garner present a court’s “dictionary reference” as though it “were the court’s entire decision.” But Scalia and Garner use the case only to illustrate their “Interpretation Principle”—namely, that “Every application of a text to particular circumstances entails interpretation.” They say only that the court “sensibly relied on a reputable dictionary,” not that it exclusively did so. Indeed, they specifically note that the term “sandwiches” was not “a defined term in the lease”—a point that Posner repeats while giving the impression that Scalia and Garner hid it.

As my own post on the case shows, I agree with Posner that the dictionary definition of “sandwich” that the court cited was in some respects a poor one. But that flaw has zilch to do with the very limited use that Scalia and Garner were making of the case.

There were several other cases that Posner claimed were cited incorrectly.