Federal appeals judge Richard Posner on Saturday returned fire in the latest round of his long-running dispute with U.S. Supreme Court Justice Antonin Scalia and Scalia’s co-author Bryan Garner.
Garner, a legal-writing expert, last week released a report he commissioned that examined a dozen allegations critical of Scalia in Posner’s 2013 book Reflections on Judging. Posner was critiquing Scalia and Garner’s 2012 book Reading Law: The Interpretation of Legal Texts.
In the report, San Francisco lawyer Steven Hirsch, a partner at Keker & Van Nest, found that eight of the 12 criticisms from Posner were unwarranted. “I am struck by the needlessly ad hominem nature of Posner’s analysis,” Hirsch also wrote.
“Please convey my congratulations to Bryan Garner on inventing a new form of arbitration,” Posner wrote in an email Saturday to Legal Times. “Two parties have a dispute; one appoints an arbitrator to resolve the dispute; the other disputant is not consulted.”
Posner, who sits on the U.S. Court of Appeals for the Seventh Circuit, continued: “How beautifully that simplifies arbitration! 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.”
Asked about Posner’s remarks on Sunday, Garner replied, “Isn’t it interesting that Judge Posner has never tried to defend the few passages of his that Reading Law criticizes—and shows to be preposterous?
Garner said Posner “doesn’t try to answer Hirsch’s unanswerable criticisms. 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.
The report, Garner said, “speaks for itself.”
“Judge Posner has a history of making rash allegations against scholars, including Richard Epstein and Ronald Dworkin,” Garner wrote in his email. “I agree with Hirsch that Judge Posner is in many ways admirable. His early work makes him a national treasure. I have long considered Judge Posner a friend. Let readers of the Hirsch Report make up their own minds.”