Vulgar attitudinalism

[Scott Gerber]

Mark G:

Law, at least from a foundationalist perspective, doesn't recognize 
"plausible constitutional arguments on both sides of an issue."  I 
agree that most academic lawyers, and their colleagues in the 
humanities and social sciences, believe otherwise--that law is all 
about "argument," to quote Dworkin--but that wasn't the tack I was 
taking with my posts.  In fact, my point was the opposite.

Scott G


Mark Graber wrote:


>I am wondering whether, given the present state of the law,
>attitudinalism is bound to explain the judicial result in almost any
>affirmative action case decided in the wake of the O'Connor Court.  As I
>understand that model, the central argument is that in any case in which
>their are plausible constitutional arguments on both sides of an issue,
>law cannot fully explain the result (I'm not making this up).  Given the
>"how many angels can dance on the head of a pin" quality of the
>difference between Grutter and Gratz, any person who cannot think of at
>least 10 different ways of explaining why any affirmative action program
>is closer to Grutter than Gratz, or vica versa, ought to be tossed from
>law school.
>
>Mark A. Graber
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--------------------------------------

Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty/gerber/