Scalia and Garner vindicated–Posner not so much

The dispute between Justice Scalia, Professor Garner and Judge Posner about the 2012 Scalia and Garner book Reading Law: The Interpretation of Legal Texts became legendary for nerds like me who have no life. I took a nasty poke at all three of them in my “Top Ten” post on legal writing. (Point 9.)  The spat between these three captivated the blogs and swords were drawn on both sides. That controversy died down until very recently.

In response, Professor Garner did something highly unusual.  He hired someone to objectively review the controversy.  The report is now out.

Runs batted in: Scalia and Garner 8 and Posner 1 (with 3 partials leaning Posner).

The author, a highly regarded appellate lawyer (Steven Hirsch), was paid a token fee of $500. He was given free rein to write whatever he believed. There is no reason to think he was biased. Indeed, he said that “I am actually a great admirer of Posner. He is a national treasure. I believe in his brand of legal realism[,]” though Posner should have been “a little more careful” in his criticisms.

Maybe I am credulous, but this effort by Garner strikes me as particularly praiseworthy. It represents a concrete commitment to introspection, humility and intellectual honesty. Scalia and Posner could use a dose of those values (although I deeply admire each of them).

Anyway, good for Bryan Garner.


Judge Glasser’s elegant reminder

Judge Israel Leo Glasser is a long serving senior district judge in the Eastern District of New York. He was awarded the Bronze Star during the Second World War and later served as a law school dean. Among other things, he is known for presiding over the trial of John Gotti.

The judge has written an opinion that reminds district judges like me of the importance of admitting when you are wrong. Judge Glasser has done so in a graceful opinion that makes me extremely jealous of the judge’s ability to write clearly, candidly, and beautifully. Put simply, the opinion represents judging at it best.

After a seven-day bench trial, Judge Glasser was convinced that the doctors at the VA negligently caused a grossly overweight cab driver to die an excruciating death. He awarded the widow $5 million and the three children a total of $900,000.

After the judge heard the post-verdict motion and arguments, he decided that the $5 million award was perfectly correct but that he was wrong to have awarded the children so much money. Judge Glasser reduced the award of $900,000 to $50,000 per child.

The judge explained his error in convincing detail. Then, he wrote the following:

I am conscious of the plea made by Oliver Cromwell to the Church of Scotland in 1650 that Learned Hand believed should be engraved over the portals of every courthouse in the land, viz.: “I beseech ye in the bowels of Christ, think that ye may be mistaken.” Dillard, The Spirit of Liberty XXIV (1952). I have thought and I was mistaken. The award I made to the children was egregiously excessive and is hereby modified by awarding each child the sum of $50,000.00.

The Almanac of the Federal Judiciary quotes a lawyer who describes Glasser as “a judge’s judge.”  I can see why. Thank you, Your Honor, for reminding the rest of us of the singular importance of intellectual honesty to the role of judging.


PS Not that it matters much, but Judge Glasser was born in 1924.

*Ashby Jones, with The Wall Street Journal, has my great thanks for suggesting that I look into this case.

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