HemGrupperDiskuteraMerTidsandan
Känner du till SantaThing, LibraryThings julklappsbyte?
avfärda
Denna webbplats använder kakor för att fungera optimalt, analysera användarbeteende och för att visa reklam (om du inte är inloggad). Genom att använda LibraryThing intygar du att du har läst och förstått våra Regler och integritetspolicy. All användning av denna webbplats lyder under dessa regler.
Hide this

Resultat från Google Book Search

Klicka på en bild för att gå till Google Book Search.

Reading Law: The Interpretation of Legal…
Laddar...

Reading Law: The Interpretation of Legal Texts (utgåvan 2012)

av Antonin Scalia, Bryan A. Garner

MedlemmarRecensionerPopularitetGenomsnittligt betygOmnämnanden
1123182,404 (3.83)1
In this groundbreaking book, Scalia and Garner systematically explain all the most important principles of constitutional, statutory, and contractual interpretation in an engaging and informative style - with hundreds of illustrations from actual cases. Is a burrito a sandwich? Is a corporation entitled to personal privacy? If you trade a gun for drugs, are you "using a gun" in a drug transaction? The authors grapple with these and dozens of equally curious questions while explaining the most principled, lucid, and reliable techniques for deriving meaning from authoritative texts. Meanwhile, the book takes up some of the most controversial issues in modern jurisprudence. The authors write with a well-argued point of view that is definitive yet nuanced, straightforward yet sophisticated. - Publisher.… (mer)
Medlem:lyndagdodd
Titel:Reading Law: The Interpretation of Legal Texts
Författare:Antonin Scalia
Andra författare:Bryan A. Garner
Info:West (2012), Edition: 1, Hardcover, 608 pages
Samlingar:Ditt bibliotek
Betyg:
Taggar:posner

Verkdetaljer

Reading Law: The Interpretation of Legal Texts av Antonin Scalia

Ingen/inga.

Ingen/inga
Laddar...

Gå med i LibraryThing för att få reda på om du skulle tycka om den här boken.

Det finns inga diskussioner på LibraryThing om den här boken.

» Se även 1 omnämnande

Visar 3 av 3
Justice Scalia has once again embarked on a defense of textualism, the theory of interpretation that argues one must look back at the original text and stick to the text when deciding a case. There is an enlightening debate between Judge Richard Posner and the book's co-author, Bryan Garner in the pages of The New Republic (see cites below,) which spilled over into several online blogs including the National Review Online.

All of us seek objectivity from the courts. That justices would want to base their decisions on some objective standard is laudable. Yet, we also want some common sense flexibility. Posner believes that Garner and are being obtuse if not disingenuous. Take the example of a statute that says, “ No person may drive any kind of vehicle in the park.” Now let’s say someone in the park is stricken with a heart attack. None of us would want to prohibit an ambulance from driving into the park, yet that’s a clear violation of the statute and a true textualist would *have* to permit prosecution of the driver, yet even Scalia and Garner refuse to go that far, so the line between true textualism and broader interpretation is variable indeed.

( )
  ecw0647 | Oct 29, 2013 |
Justice Scalia has once again embarked on a defense of textualism, the theory of interpretation that argues one must look back at the original text and stick to the text when deciding a case. There is an enlightening debate between Judge Richard Posner and the book's co-author, Bryan Garner in the pages of The New Republic (see cites below,) which spilled over into several online blogs including the National Review Online.

All of us seek objectivity from the courts. That justices would want to base their decisions on some objective standard is laudable. Yet, we also want some common sense flexibility. Posner believes that Garner and Scalia are being obtuse if not disingenuous. Take the example of a statute that says, “ No person may drive any kind of vehicle in the park.” Now let’s say someone in the park is stricken with a heart attack. None of us would want to prohibit an ambulance from driving into the park, yet that’s a clear violation of the statute and a true textualist would *have* to permit prosecution of the driver, yet even Scalia and Garner refuse to go that far, so the line between true textualism and broader interpretation is variable indeed.

A problem that undermines their entire approach is the authors’ lack of a consistent commitment to textual originalism. They endorse fifty-seven “canons of construction,” or interpretive principles, and in their variety and frequent ambiguity these “canons” provide them with all the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.

Garner and Scalia insist that legislative history and debate should not be a source for judges when making decisions, yet Posner shows how Scalia has made exception to this dictum on numerous occasions. This, Posner suggests, hobbles legislatures and predisposes them toward smaller government. Well, duh, isn’t that already the predisposition of conservatives (I hesitate to align small government with conservatism since government has often grown exponentially during the tenure of supposedly and self-anointed conservative presidencies.) Ironically, one might argue that a textualist approach to the ambulance problem cited above would lead to more rather than less regulation since the legislature would be forced to create new regulations defining vehicular exceptions to the original rule. Yet, legislative history showing that the purpose of the legislation was to prohibit ambulances would certainly be on-point.

Context can also not be ignored. The word "draft" depends for its meaning on context. It could refer to curtains blowing in the wind; conscription during wartime, the preliminary sketch of a book; or even a bank note. Scalia and Garner insist that meaning will come from other text in the statute. Nonsense, says Fish. "No, it won’t. Take the sentence, “Let’s avoid the draft.” It could mean “let’s get out of military service” (a fourth meaning of “draft”), or it could mean “let’s go inside and diminish the risk of catching cold,” or it could mean (as spoken by a general manager of a professional sports team) “let’s bypass the unpredictability of the draft (a fifth meaning of draft) and trust in free agency,” or it could mean “let’s not do a draft of the bylaws (a sixth meaning of “draft”) but get right to the finished product.” The text does, as Scalia and Garner say, take it meaning from its purposive context, but the text won’t tell you what that purposive context is."

Scalia, in the meantime, has gone on the offensive. "Scalia denied that he uses legislative history in his decisions: “We are textualists. We are originalists. We are not nuts.” Apparently, Chief Justice Roberts is. The recent decision validating the Affordable Health Care Act (King v Burwell, 2015) Roberts wrote: “In this instance, the context and structure of the act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”

Personally, in reading the decisions of Heller and MacDonald, and in listening to the oral arguments, it seemed to me that both sides were looking to original intent and legislative history for their own cherry-picking and from differing time periods, the minority looking to the fear of slave rebellions and hence the need for militias in 1789 while the majority focused on the need for individual armament for blacks to defend themselves against marauding whites after the Civil War. Posner, in his rebuttal, takes Scalia to taks for doing just that: " I said that “when he [Justice Scalia] looks for the original meaning of eighteenth-century constitutional provisions—as he did in District of Columbia v. Heller, holding that an ordinance forbidding people to own handguns even for the defense of their homes violated the Second Amendment—Scalia is doing legislative history.”

Stanley Fish, in his praise of the book, perversely also noted that the “thesis that textualism is the one mode of legal interpretation that avoids subjectivity and the intrusion into judicial realm of naked political preferences” is wrong. Fish also scolds Scalia, "in NFIB v. Sebelius, Scalia the justice rejects the canon Scalia the author defends — but there can be little doubt that Roberts has canon #38, or something very much like it, in mind when he writes, “every reasonable construction must be resorted to in order to save a statute from unconstitutionality.” (I believe he was quoting Justice White in Hooper v California, 1895.)

Posner ends his review with, “Justice Scalia has called himself in print a “faint-hearted originalist.” It seems he means the adjective at least as sincerely as he means the noun.”

I wondered if Scalia was wise to embark on writing this book. It would seem that his theological canons make him a target for some serious textual parsing.

Regretfully, I fear that Michael Dorfman's comments may be closest to the mark, another validation of confirmation bias. "The core claim of Scalia and Garner is that textual originalism is determinate in a way that other interpretive methodologies are not. If that claim were true, one would expect to find that the votes of judges and Justices who describe themselves as textualist do not strongly correlate with their ideological views, while judges and Justices who reject textualism do vote in ideologically predictable ways. Yet in fact, all judges vote in ideologically predictable ways."

Me? I just want fairness, common sense, and to be left alone. But I sure love the debate. Reading the differing points of view has provided this old man with several very entertaining hours of pleasure.

http://www.tnr.com/article/magazine/books-and-arts/106441/scalia-garner-reading-...

Garner's response: http://www.tnr.com/article/politics/107001/how-nuanced-justice-scalias-judicial-...

http://www.chicagotribune.com/news/chi-scalia-posner-fight-20120918,0,7108932.st... and Posner's response: http://www.tnr.com/blog/plank/107549/richard-posner-responds-antonin-scalias-acc...

The National Review's response to the Posner review. :http://www.nationalreview.com/bench-memos/315643/richard-posner-s-badly-confused-attack-scaliagarner-ed-whelan#

Stanley Fish: http://opinionator.blogs.nytimes.com/2012/07/16/intention-and-the-canons-of-lega...

edited 7/2015 to add King v Burwell and make some editorial corrections
  ecw0647 | Sep 30, 2013 |
The interpretation of legal texts should be reliable, logical and understandable, even to non-lawyers. The approach of originalist textualism has a lot to inform us on how to properly interpret Biblical texts as well. The canons outlined in the book provide critical summaries on how to properly interpret texts, but if you can, pick up the book and read the introduction. It will give you the important info on why we need to have a systematic set of interpretation principles for important documents, and why things such as "legislative intent" or purpose-ism are not good ways of evaluating and analyzing the text.

As an added bonus, it turns out that Bryan Garner (the leading authority on legal writing) and Justice Scalia have a pretty good sense of humor and provide numerous real-case examples for all of the canons, principles, myths and concepts they articulate. Nice work! ( )
  mdubois | Sep 1, 2012 |
Visar 3 av 3
inga recensioner | lägg till en recension

» Lägg till fler författare

Författarens namnRollTyp av författareVerk?Status
Scalia, Antoninprimär författarealla utgåvorbekräftat
Garner, Bryan A.huvudförfattarealla utgåvorbekräftat
Du måste logga in för att ändra Allmänna fakta.
Mer hjälp finns på hjälpsidan för Allmänna fakta.
Vedertagen titel
Originaltitel
Alternativa titlar
Första utgivningsdatum
Personer/gestalter
Viktiga platser
Viktiga händelser
Relaterade filmer
Priser och utmärkelser
Motto
Dedikation
Inledande ord
Citat
Avslutande ord
Särskiljningsnotis
Förlagets redaktörer
På baksidan citeras
Ursprungsspråk
Kanonisk DDC/MDS

Hänvisningar till detta verk hos externa resurser.

Wikipedia på engelska (1)

In this groundbreaking book, Scalia and Garner systematically explain all the most important principles of constitutional, statutory, and contractual interpretation in an engaging and informative style - with hundreds of illustrations from actual cases. Is a burrito a sandwich? Is a corporation entitled to personal privacy? If you trade a gun for drugs, are you "using a gun" in a drug transaction? The authors grapple with these and dozens of equally curious questions while explaining the most principled, lucid, and reliable techniques for deriving meaning from authoritative texts. Meanwhile, the book takes up some of the most controversial issues in modern jurisprudence. The authors write with a well-argued point of view that is definitive yet nuanced, straightforward yet sophisticated. - Publisher.

Inga biblioteksbeskrivningar kunde hittas.

Bokbeskrivning
Haiku-sammanfattning

Snabblänkar

Populära omslag

Betyg

Medelbetyg: (3.83)
0.5
1 1
1.5
2
2.5
3
3.5
4 3
4.5
5 2

Är det här du?

Bli LibraryThing-författare.

 

Om | Kontakt | LibraryThing.com | Sekretess/Villkor | Hjälp/Vanliga frågor | Blogg | Butik | APIs | TinyCat | Efterlämnade bibliotek | Förhandsrecensenter | Allmänna fakta | 152,473,313 böcker! | Topplisten: Alltid synlig