Steven Jamar stevenjamar at
Thu Apr 23 09:41:07 PDT 2009

I like RIck's version better.  Of course both versions are just  
slogans to highlight one aspect of one type of problem in  
constitutional decision-making -- the necessity of comparing and  
indeed weighing disparate interests and make choices to favor one  
interest over another if they cannot otherwise be reconciled.   
National security and individual privacy are two different things, but  
nonetheless decisions are made all the time about the correct amount  
of limitation of one in favor of the other.

As to Prof. Sheridan's point -- I like to compare apples and oranges  
in class.  They really are quite similar.  Both grow on trees.  Both  
are about the size of a fist.  Both are fruit.  Both provide vitamin  
C.  Both are (mostly) in the reddish end of the spectrum in color.   
The texture, skin, and taste are all different.  But what I think the  
saying means is that one can't compare apples and oranges not because  
they don't share certain physical similarities, but rather because  
they are both good, but for different reasons and why one person  
favors one fruit over the other is a matter of taste, not logic.

We try to avoid comparisons and decisions that require mere preference  
as the basis for the decision, in law.  But we can't always succeed.   
Some questions are too closely balanced.


Prof. Steven D. Jamar                     vox:  202-806-8017
Associate Director, Institute of Intellectual Property and Social  
Howard University School of Law           fax:  202-806-8567

"In these words I can sum up everything I've learned about life:  It  
goes on."

Robert Frost

On Apr 23, 2009, at 12:20 PM, Rick Duncan wrote:

> Thanks to all who responded. The precise quotation is:
> This process is ordinarily called “balancing,” but the scale analogy  
> is not really appropriate, since the interests on both sides are  
> incommensurate. It is more like judging whether a particular line is  
> longer than a particular rock is heavy.
> Bendix Autolite Corp. v Midwesco Enterprises, 486 U.S. 888, 897 (1988)
> I have to admit I like the way I misremembered it better: "whether a  
> rock is heavier than a string is long." But it is what it is.
> Cheers, Rick
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