Justice Scalia (with Brian Garner) has a new book out that is drawing attention as he presents it around the country: Reading Law: The Interpretation of Legal Texts. Its most enduring lesson may not be his proposal for reading texts, but his unequivocal denunciation of common law methods and of law schools for continuing to teach them in the 21st century. He sees law schools, as Walter Olson does, as “Schools for Misrule.”
Scalia writes: “American legal education has long been devoted to the training of common-law lawyers, and hence common-law judges. What aspiring lawyers learn in the first, formative year of law school is how to discern the best (most socially useful) answer to a legal problem, and how to distinguish the prior cases that stand in the way of that solution. Besides giving students the wrong impression about what makes an excellent judge in a modern, democratic, text-based legal system, this training fails to inculcate the skills of textual interpretation.”
What we need are good rules applied according to their terms. We don’t need every case to be a contest in which we debate which rules are appropriate. Scalia is right: the rule of law is a law of rules.
Read more: James R. Maxeiner, Scalia & Garner’s Reading Law: A Civil Law for the Age of Statutes? (August 18, 2012), available at SSRN: http://ssrn.com/abstract=2132581; James R. Maxeiner, Thinking Like a Lawyer Abroad: Putting Justice into Legal Reasoning, Washington University Global Studies Law Review, vol. 11., no. 1 page 55 (2012), available at http://law.wustl.edu/WUGSLR/Issues/Volume11_1/Maxeiner.pdf , Walter Olson, Schools for Misrule: Legal Academia and an Overlawyered America (2011) http://www.amazon.com/Schools-Misrule-Academia-Overlawyered-America/dp/1594032335 .