What about a singer?

[Volokh, Eugene]

            I don't think we're in court here, where formal burdens are in play.  I assume that all of us, on both sides of the issue, try to provide persuasive explanations for our positions, partly because we want to persuade and partly because that seems to be the academic thing to do.  At the same time, we might not provide such an explanation in each post, just as in an informal conversation we might occasionally ask short questions and give short answers, and occasionally give more elaborate theories for either the questions or the answers.

That strikes me as quite reasonable.  Nor do I think that any of us are claiming any position of authority relative to other members of the list, simply by floating hypotheticals and seeing what responses other people give.

Eugene

From: Mark Tushnet [mailto:mtushnet at law.harvard.edu]
Sent: Thursday, December 17, 2009 2:37 PM
To: Volokh, Eugene; CONLAWPROFS professors
Subject: RE: What about a singer?


Why's rhe burden on the person offering the "yes" to provide a helpful or persuasive explanation rather than on the person posing the question to offer a helpful or persuasive explanation of why the cases are relevantly analogous?  That is, in this sort of setting why is the person posing the question in the position of an authority of the sort held by a person conducting a Socratic class?  ("In my view, the cases are relevantly analogous because ...," which invites an exploration of the question-poser's theory of the First Amendment rather than an exploration of the question-answerer's.)

Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138

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