Posner v. Garner (& Scalia), Rounds XXI, XXII, and XXIII.

May 13th, 2014

What you thought this feud was over? No, it was simply lying dormant. All was quiet on the textualist front until Garner re-entered the fold. In response to Posner’s claim that Scalia and Garner made a number of serious mistakes in their book, Bryan retained a lawyer to investigate the claims.

In the wake of my friend Judge Richard A. Posner’s review of the Scalia–Garner book Reading Law—a review that accused Justice Scalia and me of manifold distortions and errors despite our extensive fact-checking—I retained a respected San Francisco lawyer, Steven A. Hirsch, to investigate and assess these allegations.

The purpose was to have an independent examination of the extent to which there was any merit in what Judge Posner had said. I arranged this project without Justice Scalia’s knowledge in the belief that our second edition would benefit from Hirsch’s guidance about any changes that might prove necessary or desirable.

Hirsch received a very modest honorarium of $500, which he later informed me he turned over to his firm to offset expenses. I chose Hirsch because he had been among the most critical reviewers of our book manuscript, and I knew him to be honest, thorough, and fair.

I asked him to be dispassionate and impartial and to report his findings unflinchingly. You can judge for yourself whether he met that standard. Click here to see the Hirsch report.

Here are the conclusions of the “Hirsch report.”

I conclude below that in 8 of Posner’s 12 examples, Posner’s criticisms are unwarranted. In 2 of the 12 examples (#10 and #11), and perhaps in a third (#6), there is arguably some substance to Posner’s criticism that Reading Law omits a relevant aspect of the case’s reasoning—although not in any glaring way that implicates your intellectual integrity as he gratuitously suggests. With respect to the remaining example (#7), I agree with Posner that Reading Law, while describing the case accurately, endorses a poorly reasoned decision; but, once again, that kind of disagreement is not a valid ground for attacking the authors’ integrity.

On the whole, I am struck by the needlessly ad hominem nature of Posner’s analysis.

Tony Mauro highlights the claims in the “Hirsch report.”

Steven Hirsch, a partner at Keker & Van Nest, determined that eight of 12 criticisms by Posner were “unwarranted,” but the remaining four had varying degrees of merit—including one critique with which Hirsch agreed. But none of Posner’s criticisms were “a valid ground for attacking the authors’ integrity,” Hirsch wrote, adding that “I am struck by the needlessly ad hominem nature of Posner’s analysis.”


In one criticism that Hirsch scrutinizes, Posner chided Scalia and Garner for mischaracterizing a Massachusetts court ruling that interpreted the word “sandwich” to exclude burritos, tacos and quesadillas in a dispute over what kinds of stores were contractually forbidden in a shopping center. “A dictionary-centered textualism is hopeless,” Posner said. Hirsch said Posner’s criticisms of how Scalia and Garner described the case “fall flat.”

But Hirsch said Posner was on firmer ground criticizing Scalia and Garner for citing a 1990 Minnesota case as a good example of textualism. The ruling interpreted a law that barred owners from refusing to rent apartments to applicants because of “marital status.” Hirsch wrote, “I agree with Posner that the endorsement was not warranted.”

In most of the other instances Hirsch wrote about, he said Posner unfairly criticized the Scalia-Garner book for not including additional information about the cases cited—information that was not necessary to the assertions the book was making.

As you may expect, Judge Posner did not take this lightly. He fired right back at Garner. Tony Mauro, once again, has the scoop:

“Please convey my congratulations to Bryan Garner on inventing a new form of arbitration,” Posner wrote in an email Saturday to Legal Times. “Two parties have a dispute; one appoints an arbitrator to resolve the dispute; the other disputant is not consulted.”

Posner, who sits on the U.S. Court of Appeals for the Seventh Circuit, continued: “How beautifully that simplifies arbitration! No need for the parties to agree on an arbitrator, or for the American Arbitration Association to list possible arbitrators and the disputants cross out the ones they don’t like.”

And, on cue, Garner returned volley.

Asked about Posner’s remarks on Sunday, Garner replied, “Isn’t it interesting that Judge Posner has never tried to defend the few passages of his that Reading Law criticizes—and shows to be preposterous?

Garner said Posner “doesn’t try to answer Hirsch’s unanswerable criticisms. Please remember: 8-3-1 scoring by Hirsch (eight in favor of Scalia-Garner) isn’t a score of arguments against each other on points of dispute. The eight points are frivolous positions that Judge Posner himself raised as accusations.

The report, Garner said, “speaks for itself.”

“Judge Posner has a history of making rash allegations against scholars, including Richard Epstein and Ronald Dworkin,” Garner wrote in his email. “I agree with Hirsch that Judge Posner is in many ways admirable. His early work makes him a national treasure. I have long considered Judge Posner a friend. Let readers of the Hirsch Report make up their own minds.”

Though this is one episode, I will count this as three separate rounds in this ongoing skirmish. Rounds XXI, XXII, and XXIII are in the books.