Eugene, As I'm partly responsible for some of the fact-focused discussion during the past few days, let me offer several nuances.
I agree it makes no sense to debate the sorts of things you mention, because we'd never get anywhere. However, no legal discussion (in any area) makes much sense in a vacuum. Thus, the request for the text of the actual policy concerning bus riders that was just posted... and that makes sense. After all, the text of the policy could disclose that there's no constitutional law issue involved in the situation. We can, however, discuss legal issues with presumed facts. And to keep discussion balanced, it makes sense to identify determinative factual issues and then to consider the legal analysis if the fact(s) were one way or the other. (E.g., if the Administration knew X, then... but if the Administration did not know X, then....). When a discussion is premised on a disputed fact as though there is only one possible resolution, that usually tempts list participants to challenge that unbalanced presumption. It might help to simply point out that the fact is in dispute and that if it were other than as originally stated, the analysis would differ, and to leave the resolution of the fact to elsewhere. If the determination of what the facts are itself raises a legal issue, I think it is within the scope of the list members' expertise. That is why I asked about burden of proof: not to determine the facts but to consider how the facts would be proven. The burden, and the "right" of those with the burden to compel discovery (say, of the Administration), the obligation to make information available, the impact of national security claims, and similar concerns all raise issues that have, in the context of the particular discussion, overtones of Constitutional law. Jim Jim Maule Professor of Law, Villanova University School of Law Villanova PA 19085 [EMAIL PROTECTED] http://vls.law.vill.edu/prof/maule President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com) Publisher, JEMBook Publishing Co. (www.jembook.com) Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com) Maule Family Archivist & Genealogist (www.maulefamily.com) >>> [EMAIL PROTECTED] 06/09/03 05:03PM >>> So here's the way I look at this: There are very many places on the Internet where people discuss a vast range of things -- the war, constitutional law, abortion, taxes, guns, and so on. Most of them aren't very good. CONLAWPROF, I like to think, is much better, which is why most of us chose to participate here and not elsewhere. Why is CONLAWPROF better? Part of it is that we're a smart bunch of people -- but actually, lots of the not very helpful online discussion groups include lots of smart people. Rather, I think, it is that we're speaking about stuff on which we're genuinely experts. When laypeople talk about constitutional law, the results are generally not terribly useful (though sometimes they do provide an interesting perspective); the ratio of heat to light and unsound analysis to valuable analysis is too high. When constitutional law scholars talk about constitutional law, the results are generally much better. But just as most of us wouldn't find much value from participating in laypeople's discussions about constitutional law (again, this is a generalization, and I realize there are exceptions), so I think that most of us wouldn't find much value from discussions by constitutional law professors on which we ourselves are just laypeople. Of course, the discussions may well contain a good deal of valuable information -- but a lot less than discussions on areas that are within our core expertise. So there's no doubt that various factual questions *are* relevant to discussions of constitutional law: What did the Bush Administration really know about weapons of mass destruction? Just what is the evidence about the physiological development of fetuses at various gestational ages? What does the criminological data reveal about the effectiveness of gun control? What is the evidence about the biological differences (or absence thereof) between men's and women's mental processes? What are the likely economic results of various tax policies? But this list is just not a very good place for discussing them, because so few of us are actually experts on these fields. Few of us can write with real scholarly knowledge about them; few readers can tell the accurate posts from the inaccurate ones using their own real scholarly knowledge. Sometimes the comments might sneak in as a side item in a post, and that's fine. But when whole threads become devoted to the subject, the list is likely to become a much less valuable resource for its members -- members whose time and online attention spans are necessarily quite limited. I hope that explains my policy on these matters, and I hope most of my colleagues on this list agree. Eugene > -----Original Message----- > From: Allan Ides [mailto:[EMAIL PROTECTED] > Sent: Monday, June 09, 2003 10:42 AM > To: [EMAIL PROTECTED] > Subject: Re: From the list custodian > > > Eugene, > > I respectfully disagree with the your last posting. The > notion that a discussion of constitutional law can be > separated from the facts underlying the constitutional claim > is, if not simply wrong, at least not one of general > approbation. To cite only one source, Judge Posner's recent > book on Law, Pragmatisim, & Democracy surely suggests a > contrary view. How can one be pragmatic in the application > of constitutional principle without a deep awareness of the > relevant facts? Thus, under this view, whether a particular > gun control measure is effective is intimately related to > whether that measure is unconstitutional. I'm not saying > that Posner is right, but only suggesting that your polite > remonstrance may not reflect the views of all participants on > this list. > > Allan Ides > > ----- Original Message ----- > From: "Volokh, Eugene" <[EMAIL PROTECTED]> > Date: Saturday, June 7, 2003 4:18 pm > Subject: From the list custodian > > > Folks: Constitutional law questions related to when a > President may > > be impeached are of course entirely on-topic for this list. But I > > think that > > once the discussions starts focusing on purely factual questions > > related to > > international events, then it seems to me that it's no longer > > within list > > members' primary expertise. (The same, of course, goes for > > factual issues > > underlying a wide variety of other constitutional topics, > such as the > > developmental stage of fetuses, or the practical issues underlying > > whethercertain gun controls are effective, or economic questions > > related to the > > effectiveness of various tax policies.) > > > > So let me suggest again a rule of thumb: If a post is > tied pretty > > directly to a constitutional question, please include some > language in > > the post that indeed does so. On the other hand, if you > find that the > > languageseems forced and not really well-connected to the post, > > then that might be a > > signal that the post is best handled off-list, or on some > other list. > > Thanks, > > > > Eugene > > >
