Below is my e-mail exchange with Chicago Law School Professor Geoffrey Stone, regarding his recent mischaracterization of the partial-birth abortion decision.

The payoff is near the end, when Professor Stone ends one of his e-mails to me by saying: “I take it you’re not a lawyer.”

Heh.

The debate is lengthy, and I imagine that only those who have read the partial-birth abortion opinion will make their way through all of it. Here is the brief rundown for those of you who lack the patience to slog through it all; this also serves as a preview and summary for those of you who will read the whole thing.

Our debate focuses on Prof. Stone’s claim (made in this blog post) that “[i]n the majority’s view, the critical difference was that in enacting the federal law Congress made several findings to support the legislation.”

As you will see from the e-mails, it’s my belief that this statement of Prof. Stone’s is flatly incorrect. The Court not only declined to give the Congressional findings “dispositive weight,” but actually gave them no weight whatsoever. Prof. Stone asserts otherwise, but continually declines my repeated requests for him to provide any language from the opinion proving me wrong.

If you are tempted to treat “evidence” and “findings” as the same thing, let me set you straight right now, with an analogy. Let’s pretend you are the defendant in a contentious lawsuit. You go to court and argue your case to a judge, complete with evidence, and make an overwhelming case that you should not be liable. The judge rules your way, but makes some sloppy and inaccurate findings along the way. His findings may be unreliable, but that doesn’t mean your evidence has no convincing force. It just means that it was presented to a bad factfinder.

Now, assume that, on appeal, the appellate court said: the judge’s findings were terrible and we don’t accept them — but we find the evidence convincing, and rule that the defendant should still win. Wouldn’t you be upset if a bystander attacked the appellate court’s ruling as wrong, because it simply rubber-stamped the trial judge’s flawed findings?

That would be a strawman argument. It would be inaccurate and unfair. And it’s what Prof. Stone has done in attacking the partial-birth abortion decision.

I wish he would admit it, but as you will see, he refuses to do so.

(By the way, when we speak of the Congressional findings, we are talking about the findings relevant to the relative safety of the abortion procedures discussed in the opinion. There are other Congressional findings, regarding the rationale for the law, but in one of our final e-mails, Prof. Stone and I agree that these are not the findings that we are discussing.)

Those of you who have actually read the opinion, tell me who you think has the better of the argument, the law professor, or the lowly blogger who may not even be a lawyer. Keep in mind that Stone used to be the Dean of the University of Chicago School of Law, which is one of the top law schools in the nation. (And if you say Prof. Stone has the better of the argument, that’s fine — but I want you to do what he fails to do, and back up your opinion with quotes from the decision.)

In a future post, I will discuss what is perhaps Stone’s more interesting contention: that the Justices in the majority ruled as they did only because they are Catholics. For now, I’m sticking to the issue of Prof. Stone’s mischaracterization of the opinion — mostly because I find it stunning, and also because it is relevant to his religious-based argument.

Here is the exchange. All emphasis is in the original e-mails:

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