Book Review

Publication year2014
Book Review
Vol. 27 No. 1 Pg. 34
Utah Bar Journal
February, 2014.

January, 2014.


Ryan Tenney.

Reading Law is one thing, but reviewing it is another. After all, this is a book about textual interpretation, co-written by two authors who clearly know a thing or two about legal texts and how to interpret them.[1] Moreover, it has already been publicly reviewed by many others - perhaps most notably by Judge Richard Posner of the Seventh Circuit, whose well-publicized (and highly critical) review prompted well-publicized defenses from both authors.[2]

Rather than wading into those waters, I'll stick with the basics: namely, what is this book, and why should the typical Utah lawyer read it?

Reading law really has two distinct parts: one theoretical and one practical. The theoretical part of the book focuses on the proper approach to interpreting legal texts. It begins with the assertion that" [o]ur legal system must regain a mooring that it has lost: a generally agreed-on approach to the interpretation of legal texts."[3] It then proposes "fair-reading textualism" as the proper approach.[4] Under this approach, analysis of a legal text "begins and ends with what the text says and fairly implies" - i.e., that, within their "full context, " the words in a legal text should be interpreted to "mean what they conveyed to reasonable people at the time they were written - with the understanding that general terms may embrace later technological innovations."[5]

Notably, Reading law's fair-reading textualism differs somewhat from at least some conventional notions about what a "textualist" does or does not believe. For example, the book distinguishes its approach from "strict constructionism" -which it derides as a "hyperliteral brand of textualism" that should not "be taken seriously"[6] Instead, it suggests that "what is needed is reasonableness, not strictness, of interpretation."[7]

Reading law directs its more pointed criticism, however, at interpretive approaches that would allow a court to consider things that are outside the text itself. For example, the book attacks "consequentialist" notions of textual interpretation - i.e., those that would allow a court to consider which interpretation might produce the most "sensible [or] desirable results."[8] It argues that such outcome-based approaches are a "distortion of our system of democratic government, " insofar as they improperly allow non-elected judges to insert their "own I policy views" into the law I without accountability through I the democratic process.[9]

The book also criticizes what it I refers to as "purposivist" I interpretive approaches - i.e., I those that would allow consideration of a legislative body's perceived intent or purpose.[10] Reading law squarely rejects the notion that "legislative intent" should be considered, instead insisting that it is a "pure fantasy" to "assume" that a multi-member legislative body would have developed a unified "view on the matter at issue" in a particular case.[11] As a corollary, the book argues that legislative history should not be used either, contending that its use is an ahistorical, thoroughly modern practice that "provides great potential for manipulation and distortion."[12] Thus, Reading Law insists that the interpretive question should not be what "the legislature meant" by a statute; rather, it proposes that the question should be limited to what the statute's words fairly mean.[13]


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