Up until 2010 I served on the finance committee of a major regional bank that specialized in real estate development loans. I remember well my shock when I visited socially with “investors” who openly bragged about the number of forward placement contracts each held to buy condominium units not yet built. The values of these contracts were going up daily and each investor had a multi-million dollar financial statement even though all he owned was a truckload of contracts he never expected to close.
Fast forward five years. The economy had turned completely, and that which was an asset on a financial statement five years before was then a painful liability. Each contract became an embarrassing line item on Schedule A of a bankruptcy petition.
I make the investment analogy to point out that the right answer one day may be exactly the wrong answer on another.
We lawyers have made a similar investment – this one in philosophy. We have lionized, with help from the courts – our Justice Antoine Scalia. His excellent book written with his associate incubator Brian Garner, sits on a shelf in my office. I share it with any young lawyer who has an interest. His theory, you remember, is that we analyze any text or document first by the language used. Legislative intent, he believes, is determined solely by the language used. We have no privilege to go beyond that language to glean the intent of those who prepared the document.
Sitting right beside this tome on my shelf is a much quieter book written at about the same time by Justice Stephen Breyer titled Reading the Constitution. It’s his view that determining intent of a document only begins with the words used, then may become more complex if the words or context point toward another meaning. A journey with Breyer will be much more unsettling than a Scalia journey because there are fewer absolutes. When Scalia understands the words his work is done. Breyer’s day may be just beginning.
I have in mind a phone call received by Justice Scalia from his wife before going home for the day. She says “Tony (or whatever), stop at the Seven-Eleven on the way home and get some milk.” He does. That store closed early so he came home without the milk. He had followed instructions. His wife rolls her eyes, sighs heavily, and goes out to get the milk.
Steven Bryer gets the same call (different wife) and when he finds the Seven-Eleven closed he stops next door and comes home with the milk. Antonin Scalia was true to his instructions. Steven Breyer was as well.
As lawyers every one of us has experienced a trial or appellate judge who declined to do what we think the law surely intended because he or she couldn’t exactly squeeze the words in the law to fit the problem. Years ago, I went before a Circuit Judge with a woman who had three children at home who had no money to eat. I was convinced she was hungry sitting in my office. I believe I broke every rule in the office by paying her filing fee myself. Then, I was able to get service on her husband who had just landed at the airport and planned to go out again tomorrow, she said. The Rule said he was entitled to three days’ notice of a hearing, and because he had just got off a plane, I had given him only one. For whatever reason the husband refused to give his wife even a penny. The Court relied on the Rule to say it had no power over the husband to order payment to the children, or even to require him to come back in two days. The man got back on the airplane and left the country. The Judge’s hands, he believed, were tied by the rule. The Judge was satisfied that he had done his job. I was just as convinced that he did not understand his job.
Without meaning to be overly simplistic, Justice Breyer came home with the milk. Justice Scalia did not. Like our 2005 investors, when we lawyers put all our money on the gospel of the written word we go only where the word takes us, and that can be an injudicious place. I submit that law, and judging, are a lot harder than Scalia believed.
This article is an opinion piece offered by the author; it is for general information only and is not intended as and does not constitute legal advice or solicitation of a prospective client. It should not be relied on for legal advice in any particular factual circumstance.