Shaken by this message, I went to Karolyne’s office, read the message to her, and discussed what to do. We decided I should promptly call him to apologize. But when I did this, I made little if any headway. He said he had to get off the line. I felt as if he was cutting me off. I waited 30 minutes and then sent an e-mail:
Nino—
Again, so sorry. I can only imagine how I’d feel if we were working on a usage project and you told me you felt doubts about being associated with “prescriptivism.” After all, that’s what I’m best known for. I’d be unhappy about that.
I’m entirely comfortable with our originalist positions—and of course I’m extremely proud of our association, coauthorship, and friendship. And the second book will be even better and more important than our first.
Thank you for bearing with me!
As ever,
Bryan
Thirty minutes later came his reply. He thanked me for my e-mail and said he was glad that I understood, calling my analogy to prescriptivism “just right.”
Then he wrote, “All is forgiven, my friend—and I probably need your forgiveness for my overreaction.”
The storm clouds had lifted. Never before in our post-call-me-Nino relationship had I felt such an ominous threat to its continuation. The reconciliation was an enormous relief.
Facing the Deadline
We were working toward a goal of having the book in print by the end of 2011. Justice Scalia’s communications with me became more and more urgent. On June 29, 2011, he wrote: “I would like a new draft no later than tomorrow. I leave Friday. God, there’s so much more to be done!” The draft then stood at less than half the length of the finished book—although we didn’t then know how much more we’d be adding.
In mid-July, I wrote to him: “I’ve canceled my 18-day trip to England to focus on this project.” He responded: “I’m back [from a short teaching stint in Europe] and ready to go. I’m at your disposal all summer, and will even cancel (at some risk to my marriage) my two weeks at the Outer Banks if necessary. Regards, Nino.”
Our exchanges were voluminous. On July 22, he sent me a reworked batch: “Bryan: Attached, the portion I have worked on this week. As you will see, I have deleted a lot, added a lot, and reordered considerably. I anxiously await your reaction.”
Three days later, he wrote to me with the subject line “Trouble.” It was the second time in a week that he’d begun with “We got trouble.” He said that “vast portions” of the manuscript weren’t acceptable to him. “It appears that I will have to cancel my family vacation on the Outer Banks; and that you and I will have to spend many days together resolving our differences. Even then, I do not think we will be ready for an October 31 deadline. Give me a call, so that we can discuss what to do.”
After our call, I booked a flight almost immediately to D.C. so that we could work out the difficulties we were encountering. Soon we agreed to push back our deadline until mid-2012. Still, we urgently needed to work out our differences.
At least half the time, some case that he’d want to cut I’d want to keep, and then we’d have a tug-of-war. In most of these instances, he’d accede to my insistence that the case was useful.
As for his reordering of material, I greeted his changes with enthusiasm: he had a gift for architecture, and his ideas about organizing and reorganizing our sections were nothing short of brilliant. For example, our lengthy treatment of originalism struck him as much too long and wide-ranging in the middle of the book. Justice Scalia suggested keeping part of it there, under the fixed-meaning canon, which reads: “Words must be given the meaning they had when the text was adopted.” Then he created two new sections at the end of the book. They became “debunking” sections exposing 13 falsities. One was “the false notion that lawyers and judges, not being historians, are unqualified to do the historical research that originalism requires”; the other was “the false notion that the Living Constitution is an exception to the rule that legal texts must be given the meaning they bore when adopted.” Allocating our discussions in this way made a great deal of sense, and it made the book feel better-proportioned.
A Logophile’s Gift
One day while we were working in chambers in late July, Justice Scalia suggested that I join him and Mrs. Scalia at their house for macaroni. He called Mrs. Scalia to see whether she could add me. “Excellent. We’re on!” he said.
I told him I’d brought a gift for him.
“What is it?” he asked.
“It’s the new third edition of my legal-usage book.” I handed it to him. “Oxford has now renamed it Garner’s Dictionary of Legal Usage.”
“My gosh it’s big!” he said, waving it up and down. “How long is it now?”
“It’s 991 pages, just a bit longer than my book on American usage.”
“When did you have time to do all this?” he asked.
“I try to use every waking moment in some useful way. That’s the great thing about lexicography. If I have five minutes to kill, I can do something useful for one of my books.”
“I admire your industry,” he said, thumbing through the pages. “What’s this entry, ‘Lawyers, Derogatory Names for’?”
“That’s an amusing one.”
“Dump truck! ‘An unmotivated criminal-defense lawyer who unskillfully represents indigent defendants through public subsidy.’ Where’d you get that?”
“I was teaching a seminar for some public defenders. Apparently they use it all the time. But as you can see I found a published instance of it.”
“Jungle fighter . . . latrine lawyer . . . sore-back lawyer. These are hilarious!”
“I had fun putting that entry together. It took lots of research over several years, as you might imagine.”
“I imagine it did,” he said.
“But I have a confession, Nino.”
“What’s that?”
“You know I think of you as an uncle. Well, I’ve done something in this book that I hope won’t disappoint you.”
“What is it? Tell me.”
“You know the book is full of citations, not only of interesting and confusing words but also of mistakes. Probably 75% of the illustrative quotations are instances of mistakes by legal writers. I cite my late grandfather, Judge Meade Griffin of the Texas Supreme Court, for misusing feoff in place of feoffee. I cite my late mentor Charles Alan Wright for a mistake. And I even cite myself for a mistake.”
“Are you saying you cite me for a mistake? Let’s hear it. What have I done?”
“Well,” I said sheepishly, “you’ve tended to use thusly as an adverb, when thus alone is an adverb. The -ly is unnecessary. Actually, you’ve done that a lot.”
“You mean that’s an error?” he asked.
“I’m afraid so. It’s called a ‘double adverb.’ ”
“I’ll have to stop that,” he said. “I wonder where I picked it up.”
“Here’s what I say in the preface. ‘I persist in believing that the citations confer scholarly value on the work. And let me point out again that I have cited erroneous usages by my beloved grandfather, my great friend and mentor Charles Alan Wright, and myself. And I have cited my close friend and coauthor, Justice Scalia, unfavorably. As he might well say, “Get over it!” The purpose is never to ridicule, but to educate.’ ”
“Why Bryan, I think that’s wonderful.”
“You do?”
“Yes. It shows that you’re objective and dispassionate in your approach. You’re not playing favorites.”
He wanted to know where I’d criticized him. I cited him a total of 25 times, but it turned out that only 1 was negative—for pretentiously using the Latinism ex necessitate instead of the simple adjective necessary. That was a pretty mild criticism, we agreed.
“You could have been harder on me,” he said. “But thank you for mentioning me in the preface, in the same category as your grandfather and Charlie Wright. Say . . .” There was a pregnant pause.
“Yes?�
� I said, encouraging him to continue.
“What’s the mistake you cited from your own writings?”
“It’s really embarrassing. It dates from 1982. I used bequest as a verb in place of bequeath.”
“You did what?”
“It was a piece on Shakespeare’s Latinate neologisms—the Latin derivatives that, as far as we know, Shakespeare was the first to use in English.”
“You quote the mistake here in the book?”
“I certainly do.”
“Let me see.” He licked his thumb and started thumbing through the pages. “Buh-buh-buh-buh. Here it is: ‘“And by so felicitously using the words newly bequested [read bequeathed] to English, [Shakespeare], more than any other writer of the English Renaissance, validated the efforts of earlier and contemporary neologists.” Bryan A. Garner, Shakespeare’s Latinate Neologisms, 15 Shakespeare Stud. 149, 151 (1982).’ Ooh. That’s bad.”
“Yes,” I said.
“Really embarrassing. Heh, heh, heh!”
“Yes.”
“Why’d you point it out to the world?”
“For the reason you say, Nino. I shouldn’t exempt anyone. We all make mistakes. I try to be a fair-minded, omniscient adjudicator of English usage. I’m sure I fail, but I try.”
“I think that’s the right approach,” he said.
Tennis Break
The courthouse was nearly empty in the dead of the summer break. At 4:00 p.m., he suddenly remembered that he had a tennis game in an hour, and he asked me to come along if I wouldn’t mind watching for 45 minutes or so before going home for dinner. I said I’d be his linesman.
In the pro shop at the Washington Golf and Country Club, I found two pullovers I thought Karolyne might like, but a purchase could be made only through a member’s account. So Justice Scalia advanced me the money and put the charge on his membership account, insisting that Karolyne should have the clothes.
“We’re having to give up our memberships soon,” he told me.
“Why?”
“For a long time, country clubs and gyms have offered free memberships to Justices, hoping to entice them. That’s coming to an end.”
“But why?”
“I suppose the Court has decided that it might not be entirely proper. But of course, on our low pay we can’t afford the membership initiation fee or even the monthly dues. We still pay for everything we buy, naturally. I’ll be sad to give it up, but I can’t afford it—even with our book royalties.”
“That’s too bad. Gosh. Anyway, I’ll reimburse you as soon as I get back.”
“Oh, don’t worry about that,” he said.
Justice Scalia’s playing partner was a D.C. lawyer about ten years younger, perhaps in his mid-60s—a regular sparring partner. The two didn’t say much. After introducing me as his guest, Justice Scalia got down to serves and volleys as a warm-up. Despite his considerable heft in the middle, his form was good. He moved around well, and he was obviously a natural athlete. His ultracompetitive nature surfaced almost immediately. In the first game, he served a shot that landed about two inches out.
“Out!” I said, taking my linesman duties perhaps too seriously.
“It was in! It was an ace!” Justice Scalia insisted.
“Yes, I think it was in,” the companion said, seemingly eager to continue the atmosphere of amiability.
After that, I abstained from making any more line calls and instead just watched. It soon became apparent that Justice Scalia’s rulings were in all instances final. Occasionally he’d rule against himself. One time I foreswore my resolution not to interfere: I contradicted him when he erroneously ruled against himself. Otherwise, I stayed out of disputed calls.
The games were close, but Justice Scalia won the match 6–4, 3–6, 7–5. It looked to me as if his partner was going easy on him, but Justice Scalia fought hard for every point.
Back to the Book
Soon after returning to Dallas, I expressed appreciation for his superb edits to the manuscript of Reading Law: “Nino—Love your edits and clearheaded revisions. Thank you.” He responded: “Bryan: Glad you liked them. Forgive me for being sometimes harsh. Back to the book.”
During this period, we were struggling some with each other. He wanted to truncate where I (uncharacteristically) wanted to amplify. At one point, he sent me a cover note to various cuts, telling me that I wouldn’t like the changes he was sending. He didn’t like repeating ideas he thought we’d already covered. He closed with: “We can’t keep coming back to our vomit. Cheers.”
Soon he was annoyed that I’d continued to embellish some of the more exiguous discussions of points. He was getting testy: “PLEASE, BRYAN, STOP WRITING. PLEASE. We have been working on this book for over a year, and your really worthwhile thoughts have already been incorporated. You are now dredging up the dregs. Let us spend the remaining time incorporating new thoughts suggested by others, and correcting inadequacies or mistakes that others have pointed out.”
He had vowed not to work on Reading Law while at the Outer Banks, but I gathered he hadn’t stuck to that: “I’ve just returned from the Outer Banks—and I am not in a good mood. I’m only about a third through, and I’ll send you my suggestions (assuming they’re not redundant) Monday. Regards. Nino.”
A week later, his outlook was more positive: “Bryan: Yes, the book is getting better and better. I’ll stay on it.”
Though we continued to experience conflict on some technical points, all in all he did seem to be softening up. At one point, he said (as part of a long, complicated e-mail): “Sorry I was testy yesterday afternoon. It’s been a hellishly busy couple of weeks.” And he asked me how to approach the glossary. I suggested that he read the definitions only for accuracy. Then I signed off, perhaps facetiously, “Love, Bryan.” I meant this with a lighthearted smile.
Without mentioning that sign-off, he responded: “I’ll do what you say on Monday. Nino.”
Before long, he was even more conciliatory: “Dear Bryan: I’m sorry I’ve been so testy. The time pressures of both the book and my cases have got to me. I know you’re improving the book, and I will sympathetically review your proposed changes. Nino.”
I found solace in this response. It told me that we wouldn’t have lots of conflicts ahead. We were clicking again. I might expect we’d encounter minor frictions—always to the benefit of the book—but no cataclysms.
Production Protocol
We went through well over 250 drafts of Reading Law. I was the only one who saw them all. My associates printed out a new copy of the book every weekday when I was in town, and I’d mark it up every night or take it on a trip. I’d try to write two footnotes every morning in lieu of breakfast (by citing scholarly sources), and I’d embellish the text here and there. Every change I made would be highlighted in yellow so that when I’d send Justice Scalia a new draft—every six weeks or so—he could see precisely what I had done and focus his review. I knew he’d never tolerate a new draft every night—he’d feel inundated—but I always wanted a clean copy daily for myself.
At LawProse, we had our full complement of highly skilled staffers working on the project by the time Reading Law was in full swing. Our working protocol was that if I made a series of changes, or if Justice Scalia sent in additions or edits, Jeff Newman would enter them into the master copy (page proofs, actually, since our manuscript pages were the InDesign layouts), and then Becky McDaniel would verify that the edits had been correctly entered. Because Becky and Jeff are both seasoned lawyer–editors, they’d periodically do a complete citation check of all sources. Meanwhile, Tiger Jackson (LL.M.), another longtime lawyer–editor at LawProse, would hunt down potential cases for us to use and help verify quotations and citations. With all my books, this is a perpetual process until we’re ready to go to press. During this period, we also had the benefit of three other lawyer–staffers: Eliot Turner, who was in between federal clerkships, Heather Haines, and of course Karolyne.
Although Justice S
calia and I wrote every word that appeared in the book, we couldn’t have done it without the help of countless allies in law. Justice Scalia asked all his former law clerks to suggest useful cases for us to consider. Even a single case sent by a clerk earned that person a mention in the book. I enlisted lots of friends as well, as a result of which our acknowledgments “page” was actually two pages.
We probably considered three times as many cases as we ended up discussing or citing (667 in the published version). We took some pride in finding out-of-the-way state cases. The whole idea was to use the best teaching examples, which meant (for us) the most interesting problems that presented clean issues. Which court decided a given point didn’t matter nearly as much. In fact, it didn’t really matter to us whether the court got it right or wrong: we were demonstrating how legal interpretation ought to be done, not describing how it is done. So we were happy to declare that this or that court had gone wrong in some way—or to praise courts when their methods were analytically sound.
Our typical approach was to state the principle, explain its history in Anglo-American law, and then illustrate its application in a variety of cases, especially as these might provide nuance or qualification. No one had ever before taken quite this tack. Perhaps the closest forerunner had been Henry Campbell Black, the original writer of Black’s Law Dictionary, who in 1911 had written a treatise called A Handbook on the Interpretation of the Laws.
As with our earlier book, the critical commenters we asked to read the manuscript were enormously helpful. Some focused on style, others on substance. We appreciated having whatever help our friends could lend.
When working together, Justice Scalia and I would normally have lunch in his chambers—a crab salad made by Fernando or Chinese takeout brought to the Court—and then we’d eat out for dinner. His favorite restaurants were Tosca and Bistro Bis, but sometimes we’d go elsewhere: Sushi Taro, the Prime Rib, the Hamilton, Plume, Central Michel Richard, or the Cosmos Club.
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