During a recent date night, mr. jolt and I were discussing the recent Supreme Court opinions and our opinion of them.  For the most part, (mr. jolt says 95%, I say about 85%) we agree.  However, there are certain elements of the decisions (which I must confess I have not read any of them, but have read mucho commentary elsewhere, bad jolt, bad jolt for relying on secondary sources) where we disagree.

In our discussion, I tended to focus on the practical impact of these decisions, being the pragmatic person that I am, whereas mr. jolt was focusing on more abstract notions of constitutional theory.  (I really must start reading the law blogs more thoroughly to find more legal and theoretical support for my positions, the outrage and pragmatic approach of the political blogs I enjoy are not as helpful in mustering arguments against a lawprof- if only the law blogs were funnier!).

At any rate, at one incredibly tense point in the argument conversation, mr. jolt asked with frustration why anytime I had any experience with a topic, no matter how tenuous, I was completely disdainful of his view.  To which I replied that experience must guide interpretations of the law and that the law is not some abstract notion, but has real impact on real people including me (although not that coherently).  Lest you think mr. jolt is some ivory-towered prof, I assure you that he found my response rather condescending toward his own experiences and outlook.

Thus, I proposed the following rules of engagement when debating in future.  Namely, where neither of us has first-hand experience or other highly-supported anecdotal connections to a given legal discussion, we must convince the other that there is a rational basis for our opinion and/or constitutional theory.  On the other hand, when one or the other or both have personal connections to the issue at hand, each will apply strict scrutiny to the other side’s arguments.

Fortunately, this agreement on the rules of engagement permitted a rather uncomfortable dinner to proceed to a more enjoyable rest of the evening.