The new book by Antonin Scalia and Bryan A. Garner is very sure of itself—in fact, far too much so.
It is tempting at this point in the analysis to move from the lapses in Justice Scalia’s latest book to the lapses in his general jurisprudence on the Court. But this detour would not be fully fair to co-author Garner, nor would it be fair to Scalia himself, whose book deserves to be judged on its own merits regardless of what one thinks of his overall body of work as a jurist, either in general or in the specific domains of statutory and constitutional interpretation. (For what it is worth, in my classroom, I point to several prominent Scalia opinions as exemplary, and to others as execrable.) William Blackstone himself, it is worth noting, did not make much of a mark on the bench, but did write a toweringly influential treatise. By contrast, Scalia’s body of work as a justice may well prove far more influential than his academic writings. He is no Blackstone—and nowhere is this more evident than in the part of his new book that purports to channel Blackstone.
By misstating the venerable Blackstonian doctrine of absurdity, Scalia and Garner champion results that are, quite literally and precisely, absurd. Scalia and Garner’s mangling of some of Blackstone’s most notable passages raises questions about the general reliability of Reading Law as a work of sound scholarship. The book is undeniably ambitious. But is it perhaps too ambitious—too sure of itself, too quick to overlook important counterarguments and complicating evidence? Given the authors’ fondness for hoary Latin maxims, the two words that seem most appropriate, in light of the foregoing analysis, are caveat emptor.
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