1992 Ann. Surv. Am. L. 587 (1992-1993)
Rights Talk/Free Speech and Equality

handle is hein.journals/annam1992 and id is 657 raw text is: RIGHTS TALK/FREE SPEECH
AND EQUALITY
john a. powell
I recently read an article by Elizabeth Schneider on how we
should approach a conversation about legal rights and handling
legal rights issues.' In her article, she noted that rights grow
from our experiences.2 The discussion of rights, then, should not
happen until the middle of our conversation.3 Instead, we should
begin our discussion of rights by talking about the real-life exper-
iences of people and, to the extent that we can, by grounding this
discussion with experiences from our own lives.4
The Beginning of Rights Talk -I will admit that this approach is
an unusual way to discuss and determine legal rights and it is cer-
tainly unusual for lawyers. Lawyers, and those who have learned
to think like lawyers, often begin a discussion of rights by simply
asserting that they have a right to do something or not to do
something.5 They assert this with a great deal of force but seldom
with any effort to ground their assertions in experience.6
john a. powell is a Professor of Law, University of Minnesota and former
Legal Director of the A.C.L.U. The author would like to thank Jeff Rutherford
for research assistance and Pat Buenzle for her secretarial and other support.
1. Elizabeth Schneider, The Dialectic of Rights and Politics: Perspectives
from the Women's Movement, 61 N.Y.U. L. Rev. 589 (1986).
2. Id. at 590. Schneider develops a dialectical approach to the relationship
between rights and politics shaped by an understanding of praxis, wherein the
theoretical and practical are constantly transforming, recreating, and reformu-
lating each other. Id. at 649. This method reveals a:
..[C]onception of both a process through which rights are formulated as
well as the content of the rights themselves. The process has been 'regener-
ative' as rights were developed in the 'middle,' not at the 'end,' of political
dialogue. Rights [in the women's movement] were the product of con-
sciousness-raising and were often articulated by political activists and law-
yers translating and explaining their own experience.
Id.
3. Id. at 649-50.
4. Id. at 650. Schneider emphasizes the success of the women's movement
in using practice and experience to shape theory and delineate legal rights.
5. We are taught as lawyers to argue within the parameters set for us by
rules, precedent, and text. In this sense, we too often allow form to limit and
even define the bounds of substance, instead of allowing the substance to inform
and shape the form.
6. Grounding assertions of rights in experience raises, for some, the specter
of the slippery slope and the danger of line-drawing.
587

Imaged with the Permission of N.Y.U. Annual Survey of American Law

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