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In a message dated 12/16/2004 9:55:49 PM Eastern Standard Time,
[EMAIL PROTECTED] writes:
If you think that experience requires a different conclusion, then you simply have not read the opposing briefs of a variety of groups on the opposite side from me in numerous constitutional cases. I think briefs are one of
the worst examples of testing the importance of the distinction between teaching
and proselytizing. Briefs are advocacy pieces, usually (in my experience a long
time ago as a federal appellate clerk) poorly done. Impartiality, if it
exists at all, is not likely to be found in briefs. Indeed, it might be
oxymoronic to contend that impartiality is or should be a goal of brief writing.
The distinction between
impartiality and advocacy, of course, itself is one of those troubling
distinctions (or perhaps dichotomies) whose use might be counterproductive
generally. Still shouldn't we exhibit patience when hearing someone using
this distinction to see if that particular person is sensitive to
its importance and is also sensitive to the ease of abusing
it. Only a few people, Stanley Fish comes to mind if his work is not
completely based in irony, sincerely believe that these distinctions are
meaningless, incoherent or necessarily subject to abuse. Finally,
distinctions such as "teaching and "proselytizing" and "impartiality" and
"advocacy" as well as a host of others are currently defining characteristics of
our conceptual discourse. Abandoning these distinctions, while not
impossible I suppose, requires a revolution in conceptual discourse similar to
the types of revolutions in science Kuhn wrote about. Rejecting our current
conceptual discourse is not impossible, but the cost is enormous and should
not be borne without an extraordinary justification.
Bobby
Robert Justin
Lipkin
Professor of Law Widener University School of Law Delaware |
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