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Steve Hirsch Commissioned for New Study on Scalia-Posner Feud

National Law Journal

Legal writing expert Bryan Garner today launched the latest round in the long-running feud between federal appeals judge Richard Posner on one side and U.S. Supreme Court Justice Antonin Scalia and Garner, his friend and co-author, on the other.

The new development came in the form of a detailed examination by a San Francisco lawyer, commissioned by Garner, of a dozen criticisms Posner made of Scalia and Garner’s 2012 book Reading Law: The Interpretation of Legal Texts.

Posner, a judge on the U.S. Court of Appeals for the Seventh Circuit, made the jabs in his 2013 book Reflections on Judging, which draws in part from his earlier critique of the Scalia-Garner book published in The New Republic. After the magazine article appeared, Scalia said Posner had lied.

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.” At the big-picture level, the feud between Posner and Scalia is based on their differing approaches to judging. Posner describes himself as a legal realist, and views Scalia disparagingly as a textual originalist or formalist. Translation: Posner claims to write pragmatic opinions that make sense in the real world and take consequences into account, without being political. Formalists, in Posner’s opinion, hew too closely to legal texts, dictionaries and canons of interpretation to come up with the right answer, with no regard to the practical consequences.

But in Chapter 7 of his book, Posner goes from the lofty to the specific, taking Scalia and Garner to task over their book’s analysis of several court opinions that illustrate the canons judges apply to interpret laws. Hirsch’s study focuses on that chapter.

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.

In an interview, Garner said he commissioned the report by Hirsch last fall “to discover what merit if any there was” in Posner’s critique, partly with an eye toward publication of the second edition of Reading Law.

“Good or bad, I wanted an objective view,” Garner said. “When you’re caught up in a controversy like this, you need the help of an objective third party.” Garner said Scalia was not aware of the report until recently.

Hirsch and Garner have known each other for some time, and Garner in other books has praised Hirsch as one of the best brief writers in the country. “It was clear that Bryan was upset and insulted” by Posner’s attacks, Hirsch said in an interview. He agreed to write the report “only if I had free rein to come to my own conclusions.” Garner paid Hirsch a token $500 for the report.

Garner acknowledged that some may view the commissioned report as self-serving. “There is no avoiding the possibility that some people will see it that way, but I believe the report speaks for itself. It is very thorough.”

Hirsch agreed. “I admire Bryan for posting the piece” even though it affirms some of Posner’s criticisms, Hirsch said, adding that “I am actually a great admirer of Posner. He is a national treasure. I believe in his brand of legal realism.” Did Hirsch change his mind about Posner as he wrote the report? No, Hirsch said, though he thinks Posner should have been “a little more careful” in his criticisms.