Stephen M. Griffin
sgriffin at LAW.TULANE.EDU
Fri Dec 15 12:00:50 PST 2000
Those who followed my appeal for signatures on the letter to the Fla.
legislature may have noticed that I never responded to the arguments of
Profs. Sisk and Farnsworth. This seems an eon ago, but it was just nine
days past. I am mindful of Eugene's appeal to say only that which is new
and Profs. Levinson and Wildenthal made most of the arguments in response I
would have made. But a few points:
1. I called on conlaw scholars to sign "even though you may not be an
expert." What I meant was "an expert on Article II, sec. 1" not "conlaw
expert." As the letter stated, you had to be a conlaw scholar to sign. As
Sandy pointed out, there were no pre-existing experts on the specific const.
clauses at issue. Any conlaw scholar was capable of understanding the
rather simple issues involved.
2. The S&F position that those signing should be able to identify themselves
as Article II experts rests on an undefended assumption that members of the
public or Fla. legislators will believe that those signing are such experts.
I see no evidence for this. To the contrary, the most natural reading of
the letter is that those signing are conlaw scholars, general experts as it
were. Further, that was how it was taken by the Fla. legislators that I
talked to. It should be kept in mind that many legislators are not lawyers
(including many members of the Comms. conducting hearings on the
resolution). From their point of view, what counts is that you are a conlaw
scholar who teaches and writes about the subject and has examined the issues
they are struggling with. Nevertheless, they are familiar with the issue in
a general way, however, and so can quickly spot arguments that are more or
less helpful to them. They are not taking the arguments purely on faith,
any more than I think the public would.
3. Another undefended S&F assumption is that the letter and statements like
it (open letters, petitions etc.) should be held to the same scholarly
standards as law review articles. No one could mistake the letter for a law
review article or treatise. It is still fair for those signing to identify
themselves as scholars because they are using their general conlaw expertise
in deciding whether to sign.
4. The irony of the S&F criteria for expertise is that they have yet to be
applied to the lawyers who were retained (with public funds?) by the Fla.
Senate (Roger Magnuson) and House (Einer Elhauge). Sandy has already
commented on Elhauge. As to Magnuson, I can't find a law review article by
him but it is clear he is familiar to the proponents of gay rights as
someone who wrote Are Gay Rights Right?, which examines the issue from a
Biblical perspective. So the first move in the public debate was not made
by me, but by lawyers who are demonstrably not Article II experts by the S&F
criteria. To me, this pedantic argument about expertise is irrelevant so I
didn't bother making it in the letter or to the Comm. Past a certain
minimum threshold of acquired expertise (a relevant graduate degree or other
evidence of const. familiarity), what counts is the quality of arguments,
not a prior publication record.
5. Prof. Farnsworth makes a distinction between scholars who have general
expertise and those who have expertise on point. I think any such
distinction in practice will be unstable and hence not useful. Like many
conlaw scholars, I taught a class on impeachment during spring 1999. One
text was Michael Gerhardt's book. This book arises out of Gerhardt's
experience with a federal commission on judicial impeachment. It is tilted
toward questions that arise in such impeachments and doesn't have as much to
say about presidential impeachment. For example, he has far more to say
about US v. Walter Nixon than the issues that arose in the Johnson and
Richard Nixon impeachments. Yet Gerhardt testified without controversy as
an expert on impeachment in a presidential context. Unless Farnsworth is
careful, an obvious expert like Gerhardt would be ruled out of bounds by any
restrictive criteria on experts, an absurd result. But I look forward to
reading his article.
Stephen M. Griffin
Tulane Law School
6329 Freret Street
New Orleans, LA 70118
sgriffin at law.tulane.edu
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