Judiciary

Judge Posner sarcastically applauds 'new form of arbitration' after Garner's expert evaluates tiff


Legal writing expert Bryan Garner is taking a new tack in his defense of a book he co-authored with Justice Antonin Scalia.

In August 2012, Judge Richard Posner of the Chicago-based 7th U.S. Circuit Court of Appeals alleged that the authors misrepresented case rationales and showed a “pattern of equivocation” in their book, Reading Law: The Interpretation of Legal Texts. Both Scalia and Garner defended their work.

Now Garner, an ABA Journal contributor, has gone a step further, hiring Keker & Van Nest partner Steven Hirsch to evaluate Posner’s criticisms, Legal Times reports. Hirsch found eight of Posner’s criticisms were unwarranted. Two or possibly three arguably had some merit, Hirsch concluded (PDF). Hirsch agreed with a fourth conclusion by Posner—Reading Law accurately described a case, but the book endorses a poorly reasoned decision.

Hirsch also opined that he was ”struck by the needlessly ad hominem nature of Posner’s analysis.”

Garner told Legal Times he hired the expert to get an objective view before publication of a second edition of the book. “Good or bad, I wanted an objective view,” Garner told Legal Times. “When you’re caught up in a controversy like this, you need the help of an objective third party.”

Legal Times published Posner’s response in a second article. “Please convey my congratulations to Bryan Garner on inventing a new form of arbitration,” Posner wrote in an email to Legal Times. “Two parties have a dispute; one appoints an arbitrator to resolve the dispute; the other disputant is not consulted.”

“How beautifully that simplifies arbitration!” Posner continued. “No need for the parties to agree on an arbitrator, or for the American Arbitration Association to list possible arbitrators and the disputants cross out the ones they don’t like.”

Legal Times asked Garner for his take on Posner’s remarks. Posner “doesn’t try to answer Hirsch’s unanswerable criticisms,” Garner said. “Please remember: 8-3-1 scoring by Hirsch (eight in favor of Scalia-Garner) isn’t a score of arguments against each other on points of dispute. The eight points are frivolous positions that Judge Posner himself raised as accusations.”

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