Testing for textualism

Bryan Garner and U.S. Supreme Court Justice Antonin Scalia have written a treatise entitled Reading Law: The Interpretation of Legal Texts.

It has everything you ever wanted to know about the subject matter, prefaced by an essay, in which Scalia predictably explains that textualism is the only valid approach to the interpretation of law.

What the book doesn’t have, explains Garner in the latest issue of the ABA Journal, is a textualism test that he and Scalia were considering for inclusion in their 567-page epic.

A sample:

• A contract entitles a caterer to be reimbursed for the expense of supplying “trays, glasses, dishes, utensils or other tableware.” In his reimbursement schedule, the caterer lists $1,500 for paper napkins. Is this expenditure reimbursable?
• No. Under the ejusdem generis canon the phrase or other tableware is limited to things of the same types as in the preceding list: trays, glasses, dishes, utensils. Those are sturdier items that are more or less durable (even if plastic); paper napkins are flimsy and are more often disposed of within seconds after use. The listed items are for serving food and facilitating consumption; paper napkins, by contrast, are for cleaning. If, as seems likely, the caterer drafted the contract, the contra proferentem canon would reinforce this result.

There’s plenty more where that came from. Check it out.

HT: SBM Blog