Environmental law revolves around statutes, so the topic of statutory interpretation is crucial for lawyers in the field. For the past thirty years, Justice Scalia has promoted an approach called textualism, which purports to provide an objective method of interpreting laws.  This approach often, though not always, leads to narrower reader of statutes than broader approaches that recognize Congress’s intent to protect the environment.

Judge Richard Posner has published a devastating critique of Scalia’s latest book on the textualism.  I’ve seldom seen such a brutal and effective exercise in intellectual demolition.  By the end, Scalia’s argument is in complete ruins.

Posner exposes deep inconsistencies in the book.  He also shows that the book misrepresents the judicial opinions that it discusses, not just once or twice but in a slew of cases.  In fact, as Posner shows, the cases actually do not support the theory at all:

There is a common thread to the cases that Scalia and Garner discuss. Judges discuss the meanings of words and sometimes look for those meanings in dictionaries. But judges who consult dictionaries also consider the range of commonsensical but non-textual clues to meaning that come naturally to readers trying to solve an interpretive puzzle. ...

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