From: smezias@rnd.GBA.NYU.EDU (Stephen J. Mezias)
Newsgroups: talk.abortion
Subject: Re: Equal protection dead end? 1.
Date: 28 Dec 92 02:04:43 GMT
Organization: NYU Stern School of Business

In article <1992Dec28.000712.16189@rotag.mi.org> kevin@rotag.mi.org
(Kevin Darcy) writes: 

>No, this WAS the complaint, Stephen. It was the very first sentence of
>the first article in which I complained. Stop weaseling. It is obvious from 
>the text above that my complaint was SPECIFICALLY about "familiarity with 
>critical legal theory".

My recollection is different.  I have no intention of going back and
looking for the post.  I guess people will just have to form their own
opinions based on their perceptions of the accuracy of our
recollections.

>>Your original complaint was about language I had lifted from your post.  
>
>Wrong.

Ditto above.

>>You make several statements that I have pointed out as characterizing
>>law as more objective than someone who believes critical legal theory.
>
>How many authors have you read on "critical legal theory", Stephen? You
>seem to be laboring under the misconception that all criticial legal 
>theorists march lockstep to the same tune. Nothing could be further from
>the truth. There are as many different ways of approaching critical legal
>theory as there are of approaching economic theory, metaphysics, or any
>highly abstract field. You've got Hart, Dworkin, the strict Utilitarians,
>any number of viewpoints. If you're just going to wave your hands and
>say "critical legal theory backs up Stephen Mezias' viewpoint in every
>detail" I'm certainly going to challenge that, and demand proof. Don't
>get so uppity when I do.

I don't wave my hands and say this: I have referred to several places
in your post where you make statements about the objectivity of law
that are in direct contradiction of the point-of-view of *any*
critical legal theorist.  You write like Hart, of whom the critical
legal theorists have been uniformly critical.

>Okay, now maybe we're getting somewhere. You see, I tend to give people the
>benefit of the doubt on matters of opinion, UNLESS I have clear proof to
>the contrary.

I tend to give people the benefit of the doubt until they start
announcing support for legislative agendas that will restrict the
rights of my fellow citizens.  You apparently do not share this
sensitivity.  

>Okay, Stephen, I didn't think you REALLY wanted me to provide more "ammo"
>for the pro-lifers, but since you've provoked me, here goes...

I don't think you need any prompting from me to do this.

>Five-year-olds are protected against ARBITRARY deprivations of life just
>as fetuses are. So the issue turns on whether abortion, or, more specifically,
>the REASONS for abortion, are "arbitrary" or not, not whether the fetus is
>being given more rights than a five-year-old. Some reasons certainly are
>fairly arbitrary -- the teenager who sought an abortion on the basis that
>"she didn't look good in [her] bathing suit" while pregnant, for instance.
>The vast majority are not, IMO, but the point still remains. It's only a
>question of where to draw the line of "arbitrariness".

If we just keep government out of women's uteri, then the whole
problem of where to draw the line goes away.  BTW, five year olds are
not given the legal right to use their parents' bodies without
permission.

>>There you go, reifying written law in contradiction of critical legal
>>theory.  
>
>Quote some critical legal theory on this point.

You only expose your ignorance.  The handiest reference for me is the
Fish cite I already gave you.   Read the chapter on rhetoric which
destroys your idol Hart.

>In any case, until a law is written, it's questionable whether the "right"
>being proposed is "widely recognized" in any meaningful sense or not.

That's why I suggested you collect empirical evidence.

>Non-responsive. My point is not that people might agree, WHEN ASKED, whether
>I have a right to eat Rocky Road; the point is that it is not a "widely-
>recognized" right RIGHT NOW, before I ask. In the absence of written evidence,
>I conclude that it is not, necessarily, a "widely recognized" right.

Well you can construct your laws of evidence, but it does not change
the fact that one could measure whether something was widely
recognized by asking people.

>It doesn't even approach the status of proof. "Ask anyone" is about the
>lamest argument one could possibly make. Argumentum ad populum.

If you feel better, administer a systematic questionnaire to a
properly selected sample of US citizens.  The results won't change.

>Can you prove that they didn't all recant their views the very next day?

The probability that millions of people supporting what Stockdale said
would all recant their views the next day seems unlikely in the
extreme.

>Until it's in writing, in some sort of binding form, it's not "widely
>recognized", Stephen. You may WISH it to be recognized. So may I. But that
>wishful thinking doesn't make it so.

Objectifying written law again?  A critical legal theory no-no.

>I think your sense of proportion is out of whack, Stephen. The number of 
>people "out to get [Kevin Darcy]" is a tiny, miniscule fraction of the total
>population of the Net. It's a noisy minority, true, but a small one 
>nonetheless.

There do seem to be people out to get you.  I wonder why?

>>While we may be conditioned not to believe that Supreme Court
>>decisions are whimsical or capricious, after all those are terms that
>>are generally assigned to women's behavior anyway, that does not mean
>>that the decision are any more objective.  Again, you seem to
>>fundamentally misunderstand critical legal theory here.
>
>Quote some critical legal theory on this point.

I'm leaving for Costa Rica in the morning.  If you read the rhetoric
chapter I have referred you to and can't find anything on this point,
I'll type it in after my return.

>>Stanley Fish is not a Constitutional scholar either.  Do you think he
>>has no worthwhile observations about rights in our legal system.
>
>I think he's probably a low-grade academic hack with only enough ability 
>to convince lightweight pseudo-intellectuals that his point of view 
>represents all of "critical legal theory".

Oooh, Stanley and I are so mad that we're both going to get you.  Fish
is a tenured full professor at Duke, and one of the leading lights of
critical literary and legal theory.  You, by contrast, are a net
loudmouth.  

>If it's not recognized as a Constitutional right, then what use is this
>"wide recognition"? What does it buy?

Not all rights are in the Constitution.  I guess you hadn't noticed
that.  Some rights that are in the Constitution are routinely denied
to people in practice.

>>You can believe what you like.  As I have said since before you jumped
>>into this thread, to agree with me one has to accept discriminatory
>>effect as proof of discrimination.  This is neither unprecedented nor
>>uncontroversial.  
>
>Do you really expect any reasonable person to accept that? If a crazed 
>sniper fires into a crowd, killing more men than women, was that act
>necessarily discriminatory? Your premise is laughablle.

I really like your analogies for the fetus fanatics.  They do often
seem like crazed snipers to me, but the fact is that they are quite
intentionally taking aim at women.

>I have not argued a Strict Constructionist viewpoint, Stephen. You are
>guilty of straw man tactics. Why, you just got done admitting that your
>"wide recognition" doesn't amount to hill of beans in the field of 
>Constitutional Law. So, are you implying that all Constitutional Law
>scholars are Strict Constructionists, just because they don't believe
>in your "wide recognition"? Or, are you arguing that something in 
>particular I said marked me as a Strict Constructionst? If so, what was
>it? I'd like to know.

My complaint all along has been that you are objectifying law
inappropriately.  In response to my complaints you seem to have a
nervous tic that forces you to type "It's not in the Constitution."

>>The proof is discriminatory effect.  This is what I have said from the
>>beginning.  You can reject this proof, in which case we disagree.
>
>This "proof" is completely irrational. EVERY VOLITIONAL ACT affects some
>class of people more than another. By your "proof", every volitional act
>is therefore discriminatory. I refuse to accept that, and I doubt you'll
>find many who will support it. Yet it's a logical extrapolation of your
>"reasoning".

Your statement about every volitional act is obviously false.  I could
decide to give one lollipop each to one man and one women.  This is
the quality of virtually all you arguments.

>Before you can make the charge of "misogyny" stick, and before you can
>defend abortion rights under Equal Protection, you have to produce 
>independent evidence of discriminatory intent. You are unable to do so.
>Therefore your assertions are rejected as irrational.

Your claim is wrong: As I have pointed out on numerous occasions,
equal pay for identical work is illegal discrimination and requires no
proof of intent.  I have to confess that after getting to know you
during the course of this thread your rejection of my assertions as
irrational seems like a compliment.  You have backed yourself into so
many corners in trying to argue points about which you are dead wrong,
it is almost embarrassing to bait you with further demonstrations of
your foolishness.

SJM