Will Bryan Garner take the bait?

United States District Court Judge Richard Kopf recently posted on his blog a list of ten legal writing hints for lawyers to use when appearing before him. Hint number 9 caught my eye. It says,

Burn anything that Bryan Garner has written.  He really knows his stuff, but Strunk and White’s The Elements of Style said it all.  Besides, Garner, Scalia, and Posner pissed me off when they got into a juvenile cat fight over a book about rules.  Not to put too fine a point on it, but I am the only one who is permitted to act like a spoiled brat.

We covered the spat Judge Kopf mentions to the point it grew tiresome (see here, here, here, here, here, and here).

Inconceivable Agreement

Bryan Garner has a bone to pick with his local paper, the Dallas Morning News, regarding its coverage of an event that he and Justice Scalia hosted at SMU:

I really must protest the paltry and even silly treatment of the Scalia–Garner event in the January 29 edition (believe it or not, on page 8B of the Metro section). 

Let’s forget for the moment that it was a full house of over 1,700 at SMU’s McFarlin Auditorium and that Justice Scalia (I was merely fortunate to be onstage) received a standing ovation. And let’s forget the fact that never before in history has a Supreme Court justice coauthored one or more books with anyone, much less a Dallasite—and that this is the first coverage the paper has given our second book, which appeared last June. Not even our joint appearance on Piers Morgan received mention in my hometown newspaper. All that is probably my fault: I don’t have a publicist and never trumpet such matters.

What is especially disappointing is that Tasha Tsiaperas seriously misreported the gist of the joint presentation at SMU. She quotes me as saying, “I will tell you that my political beliefs are different from those of Justice Scalia” and reports that “Garner supports gay marriage and favors stricter gun control laws.” But she fails to follow up with the only reason that mentioning these issues or the authors’ political differences is relevant: Justice Scalia and I worked through 700 cases while writing our 600-page book and have not found a single case on which we disagree about legal interpretation. The point is that judicial textualism leads to consistent results, regardless of political bent. 

I found this emboldened portion of Garner's letter to be literally unbelievable. They really went 700 for 700, without a single disagreement?

Too bad they can't get married.

The cost of incivility

While it depends somewhat on the case, normally I try to keep briefs I write free of invective or pejoratives.  Mostly, that is because I figure that calling something "an outrage" (to use one phrase that lawyers seem to love) is ridiculous in a civil case.  The Holocaust was an outrage. Darfur an outrage.  Failure to perform the terms of a contract is not, and never will be, an outrage.  The failure to turn over some piece of discoverable information is wrong and should not be countenanced by a court.  But, it is not an outrage.

Posner v. Scalia & Garner: Scalia Speaks

Justice Scalia says that Judge Posner told a lie about Justice Scalia.  Now you know.  This story has more sequels than Die Hard.

Another Posner-Garner Fact Check

Continuing my quest to discover the truth in even the most trivial of matters....

Garner defends the accuracy of his case explanations by describing the cite-checking process they used:

Justice Scalia and I wrote the first drafts of the case explanations ourselves, and we tried to be unimpeachably accurate in them. Beginning more than a year before publication, I had four lawyer‑colleagues at LawProse—with 55 years of professional experience among them—verify the accuracy of every statement made about every case in the book.

Posner responds with disbelief:

I have trouble believing Garner when he says that four lawyers at his company verified the accuracy of every statement made about every case in the book. The book’s Acknowledgements page thanks 96 (!) persons for helping with the book, and there is no reference to four lawyer-colleagues who slaved to make sure that every statement was accurate. 

Since I have the book now, I decided to turn to the acknowledgements page. It includes this:

At Law Prose, Inc. in Dallas, we had the benefit not only of a fine law library but also of several accomplished legal researchers: Tiger Jackson, Jeff Newman, Becky R. McDaniel, Heather C. Haines, Timothy D. Martin, and Eliot Turner.

This group presumably includes Garner's cite-checking lawyer-colleagues. Very odd.

Incidentally, I count 101 "persons" (including one corporate person, William S. Hein & Co.) thanked on the acknowledgments page—not 96, as Posner states. Is it just a coincidence that 101 minus 96 is five, and that Posner seems to have missed the five legal researchers at Law Prose? (*See update for my mistaken lawyer math.) Or is Posner actually looking at a different version of the Acknowledgements that left them out? That is the only scenario in which Posner's accusation that Garner is lying is defensible. But that scenario seems very unlikely, particularly since the paragraph thanking the Law Prose researchers goes on to thank several other Law Prose "staffers."

UPDATE: An astute reader informed me that I left out Timothy D. Martin from the list of Law Prose legal researchers, so there are actually six of them, not five. As a result, the "multiple Acknowledgments" theory doesn't hold water.

More Posner v. Scalia (and Garner)!

On its website, the New Republic has published Bryan Garner's response to Judge Posner's review of his and Justice Scalia's book and a further response from Judge Posner (Posner's response starts a bit down the page at the link).

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:

Nothing. Hmm.

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.)

Notorious B.A.G. responds to J.Dick-Po

Noted legal lexi-con man Bryan A. Garner (a.k.a. Notorious B.A.G), fresh off his niche hit "Reading Law, feat. MC Scalia," has entered the fray to defend the collaboration against fellow Central Time Zone wordsmith Judge Richard Posner (J.Dick-Po). Quoth B.A.G.:

Yo, check it, for real. The trendatious atrocity of J.Dick-Po's review in The New Republic, containing elocutions of perverse adiposities to the new B.A.G.‑A-Scales book, came as a stupefing surprise—a most disappointing one. 

Read the whole thing.

Bryan Garner is not rude.

The ABA's website has the transcript of an interview that Bryan Garner did with Justice Kagan. I was pleased to learn that—like all good Americans—Justice Kagan majored in history in college and that she continues to read a lot of American history. Sean Wilentz, Richard Hofstadter, and Edmund S. Morgan are among her favorites. I have not read anything by Mr. Hofstadter but Mr. Morgan is a fantastic historian as is Mr. Wilentz. 

Reader(s)™ might recall that Mr. Torvik and I recently discussed Mr. Garner's claim that Justice Scalia is the "Most Principled Justice."  Mr. Garner made this claim in the course of marketing a book that he wrote with Justice Scalia.  To recap, I think that the whole idea of a Most Principled Justice is ridiculous, Mr. Torvik disagrees and also thinks that the choice of Justice Scalia as Most Principled Justice is not a "ridiculous choice." 

Bryan Garner and Justice Scalia are getting the band back together

Continuing their interesting collaboration, legal writing guru Bryan Garner and United States Supreme Court justice Antonin Scalia have a new book coming out. It is entitled, "Reading Law: The Interpretation of Legal Texts," and it appears to be addressed to judicial readers. Their previous collaboration, "Making Your Case," was aimed at litigators.

Tony Mauro of the National Law Journal has the scoop, including this tidbit:

Scalia himself has been accused of saying he is bound by the text of a statute or constitutional provision – and then ruling according to his personal preferences anyway. "That is a false charge," Garner said Thursday, adding that Scalia is probably "the most consistent and principled" justice in terms of following the text wherever it leads him. 

In the preface, Scalia and Garner address that point. "If pure textualism were actually a technique for achieving ideological ends, your authors would be counted extraordinarily inept at it." Describing himself as a "confessed law-and-order social conservative," Scalia said textualism has led him to seemingly liberal positions on criminal sentencing, confronting witnesses, punitive damages and the constitutionality of bans on burning the American flag. For his part, Garner said he is pro-choice and supports same-sex marriage, but "finds nothing in the text of the Constitution that mandates these policies."