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Back Story: Book Review: Reading Law: The Interpretation of Legal Texts

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Working for the Office of Bar Counsel is intense and, for me, weekends are an important and brief respite from analyzing ethical complaints against lawyers. Given a choice, my weekend reading material is likely to be the latest action thriller by Clive Cussler, something to take me away from the law and cerebral challenges. So, it was with some trepidation that I cracked open a significant book of 576 pages entitled Reading Law: The Interpretation of Legal Texts. Safe in the knowledge that I was only halfway through Cussler’s Fire Ice and that I had weekend projects waiting for me, I mentally committed to read only a few pages. Wow, what a surprise! I did not want to stop reading. The succinct references to important cases and to timely historical quotes compelled me to read on. With every page I actually felt smarter. My Great Dane tried to nudge me away, but eventually settled in, flopping his 180 pounds next to my feet. Reading Law is written by Supreme Court Justice Antonin Scalia and by the editor of Black’s Law Dictionary, scholar Bryan Garner. The book is premised on the recognition that our elected representatives make the laws and that judges interpret and enforce the laws. In this text the most important principles of constitutional, statutory and contractual interpretation are explained in a clear and understandable style with humor and several hundred illustrations from actual cases. As a lawyer, I have an interest in, and advocate for, an independent judiciary. I like, for instance, that our legal profession and its regulation are the exclusive jurisdiction of the Nevada Supreme Court. But, it is clear to me that having an independent judiciary does not mean an unchecked or superior branch of our government. Our system of checks and balances was ingrained in me during elementary school and it still makes sense to me today. So, I appreciate the criticisms of judicial opinions that appear to legislate in the absence of, or in the face of, clear legislation. I also understand that our Constitution was never intended to be abstract or capricious, allowing the judiciary to usurp the legislative process and becoming a superior, rather than a distinct, co-equal branch of government. We lawyers understand that the role of the courts is very distinct from the role of our elected legislators. I have been concerned about the obvious subjective
arguments made by courts to achieve social engineering, a job of the legislature and the people. Along comes Reading Law, providing a clear approach for judges and law makers to follow, in order to keep the judiciary in its proper and essential role. The text describes a reasoned method by which judges and lawyers should read law, called “textualism.” OK, this sounds like heady reading, and not for my day off. But, the text is so well written that the concepts make for easy reading. In fact, the entire text is full of humor. Textualists proceed “on the basis of how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued.” After explaining the benefits of limiting statutory construction to the text of the statute, the authors describe 57 distinct canons of interpretation and even discuss the rejection of 13 additional canons. The description of each canon includes a bit of legal history, an explanation of the jurisprudential issues the canon addresses and descriptions of its application in prior cases. Who knew there were actually rules? Those of us who went to law school during the last 50 years were not taught rules of interpretation, only that the job of the courts was to determine legislative intent. By the way, “legislative intent” was one of the canons rejected by the authors. Regardless of your personal social views you will gain an increased knowledge of important cases, vocabulary and insight into legal decision making. Reading Law is a must-read for our judges, legislators and lawyers. Please read the book, Reading Law, by Antonin Scalia and Bryan Garner and recommend it to a friend. Next weekend, my wife and I and our Great Dane, are going to wine country.
pATRIck oWEN kINg is Assistant Bar Counsel for the State Bar of Nevada, working full time out of the Northern Nevada Bar Center in Reno. Before coming to the bar, King owned and managed a successful civil litigation law firm. He worked for 12 years as an appointed Supreme Court Settlement Judge, during which time he mediated over 200 appeals. King has also served as an adjunct professor at University of Nevada Reno and is immediate past president of the Douglas County Bar Association.
Nevada Lawyer December 2012

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