I don't disagree with Sandy at all--I too find that over time I become more aware of how much I don't know and how difficult it is to learn "facts". But that makes me want to learn more. Maybe we dont know how to define expertise. But we shouldn't have any hard and fast "rules" because despite the Tushnet remark and its resonance, members of the list have insights nd knowledge to bring us all., nd certainly we are capable of evaluating "data:" tp spme degree. If there's a clash of experts, it might be very good for us all to know, however--at least in social sciences, often there are clashes and it cautions us against overrelying on one historian's view of say, "original intent" over another's. We need to know this if we are to be responsible constitutional thinkiers. If the COurt is just wrong on way, history, or has been selective, it may affect our evaluation of the rationales for an interpretation for example. Further, for "facts", it may be very important to know facts that never make there way into decisions in evaluating whether the decision is a sound one or not. (for example, that Peder Lund's lawyers conceded the intent issue in *Rice v. Paladin Press*) IMHO facts have relevance and importance in constitutional law and decisionmaking, and thye help illuminate issues and frameworks. Sometimes perhaps advocacy of postitions (either way--eg the assertion that it is just true that minorities are favored in faculty hiring or that the administration hid the truth on WMD or federalism does or does not promote individual liberty or child pornography harms and leads to sexual offenses or doesn't ) gets in the way, but I don't think it should be banned from the list unless it gets too far astray from the tie to constitutional law. How we--or Eugene -- approach the "fact" issue may involve some trial and error, and I do think there are times to intervene and steer things back on course, but I for one would be very disappointed if facts were banished. That's all I meant. SIncerely, Lynne
----- Original Message ----- From: "Levinson" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Monday, June 09, 2003 6:12 PM Subject: Re: From the list custodian > Lynne writes: With all due respect to Eugene and Sandy's posts, I do think there are members of this list who have expertise on "facts", bodies of literature in other disciplines, etc. > > I have no doubt that Lynne is correct. But, insofar as we want to have a "meta" discussion (and maybe we don't, for very good reasons), it remains unclear exactly how one identifies someone who possesses "expertise"--is explicit graduate traing required, e.g.?--and, even more to the point, how one adjudicates conflicts between two people each of whom claims equal expertise. (This is slightly off topic, but I recall many people a couple of years ago who said that it didn't matter that Gov. Bush had no knowledge whatsoever of foreign policy because, after all, he'd be able to rely on "expert advisors." What they didn't acknowledge is that the "experts" might disagree, and then we'd be depending on Bush's .... (what, instincts, newly developed expertise, ....?)). > > Mark Tushnet many years ago coined the notion of "the lawyer as astrophysicist," by which he referred to the lawyer's tendency to believe that he/she could become an expert on *anything* given a weekend of hard study (though, of course, almost no lawyers believed that a non-lawyer could become an expert in less than three years of law school!). It is not false modesty that leads me, as I get older, to be more aware of what I don't know about facts in the world than what I do. > > sandy
