One of the main areas of contention is whether Posner is right that Scalia and Garner misrepresent the cases they use to illustrate their interpretative canons. Posner points to six cases that he says they misrepresent; Scalia partisan Ed Whelan takes on all six examples. As I mentioned before, it is impossible without real study to make a reasoned decision about who has the better of it.
But I got a strange urge to do that real study here, thinking it would be a satisfying intellectual exercise to determine for myself who's being sloppy or worse here. I decided to look into one of the cases that Posner says Scalia misrepresents, and then doubles down on in his response to Garner's riposte—Commonwealth v. McCoy.
Here's what Posner says about the case in his original review:
Scalia and Garner commend a court for having ordered the acquittal of a person who had fired a gun inside a building and been charged with the crime of shooting “from any location into any occupied structure.” They say that the court correctly decided the case (Commonwealth v. McCoy) on the basis of the dictionary definition of “into.” They misread the court’s opinion. The opinion calls the entire expression “from any location into any occupied structure” ambiguous: while “into” implies that the shooter was outside, “from any location” implies that he could be anywhere, and therefore inside. The court went on to decide the case on other grounds.I won't bore you with Whelan and Garner's response, or Posner's response to their response, because from this one excerpt of Posner's review—the only one I even began to investigate—I was able to determine to my satisfaction that it is Posner who is being too sloppy to take seriously. So I called the whole thing off.
Here's why. I decided I would start by reading this McCoy case. All I had was the case title (Commonwealth v. McCoy) and a quoted portion of the statute at issue ("from any location into any occupied structure"). So I typed "Commonwealth v. McCoy 'from any location into any occupied structure'" into Google Scholar. Here's what I got:
You may notice that Google, ever helpful, had a suggestion: "Did you mean: Commonwealth v. McCoy 'from any location into an occupied structure"?
Why, yes—it turns out that is what I meant. Because it turns out that Posner misquoted the case (and the statute) in question, twice, in the span of a single paragraph.
Posner is accusing Scalia and Garner of misrepresenting and misreading cases. That means he damn well better get his own case citations right. In the only citation I looked up, he failed.
That's enough for me to conclude that Posner did not use any particular care in cite-checking the Scalia-Garner book or in crafting his review. Ultimately, it's enough for me to conclude that, indeed, his review is a tendentious hatchet job.
(Note: It's possible that Posner simply repeated a misquote that Scalia and Garner made in their book. Possible, but false. I went ahead and bought the Kindle book. Scalia and Garner quote the case, and quote it correctly. Posner introduced the error.)