|
(13) “Dworkin is a high rationalist with a weak sense of fact.”[xxvi][26] “Dworkin rarely ventures outside the highly publicized domain of constitutional rights, and when he does so the results are unimpressive.”[xxvii][27] “[Dworkin’s view] that philosophy can be helpful by telling us to reflect on the fairness of imposing liability without proof of causation [reveals] an ignorance of the relevant terrain and the thinness — the essentially rhetorical character — of Dworkin’s invocation of ‘theory’.”[xxviii][28] “Dworkin has shown that he lacks a clear understanding of what ‘statistical discrimination’ means. Yet it figures prominently in the debate over affirmative action which he has defended in print.”[xxix][29]
These are examples of a different form of misrepresentation: hit and run insult. The first three of these accusations originally appeared in a 1997 law review article.[xxx][30] I replied, in the same issue, pointing out that the support he offered for each of the charges was contemptuously inadequate.[xxxi][31] He had cited only a single example of my inability to read common law cases — my account of Cardozo’s decision in Buick v. MacPherson — and had misunderstood my claim, which was not about Cardozo’s opinion but about the best constructive interpretation of his decision. He had cited only two examples of my supposed inability to grasp facts. In one he charged me with a mistake of law, not fact. In the other he charged me with not having paid enough attention to a certain speculative sociological thesis for which he gave no citation, attribution or defense. It seems odd to rest so serious a charge as that I am “weak” on facts on so slender a body of purported evidence. He did not support his further charge — that I am ignorant of “the relevant terrain” of market-share liability cases — at all. In my reply, I suggested that it might be he who is unfamiliar with that legal terrain: I cited an abundance of cases and law review articles discussing market share liability that explicitly referred to “fairness” and “justice” in the moral, rather than any imagined special legal, sense of those terms. Posner simply lifted these various insults from his earlier article, however, and inserted them into his new book, unchanged, with no mention of my responses and with no attempt to answer those responses. The final charge — about statistical discrimination — is new in this book, but it is even more bewildering. He cites a footnote of mine that does not use the term “statistical discrimination,” or mention or use the concept it names, as evidence that I do not understand that concept. He does not explain how the footnote could possibly provide such evidence.
|
