Help with interesting "cert denied"
cornell at MAIL.WSU.EDU
Mon Oct 8 14:05:03 PDT 2001
In addition to interbranch differences, there are also important
intrabranch differences.. For example, while the OLC has come to view its
role as an advocate for the institutionalized presidency, lawyers in the
White House Legal Counsel's office and in various departments and agency
are more likely to hone their constitutional arguments to protect the
individual president or the policy goals of a particular administration.
These often conflict, and further cast light on how institutionalized "role
conceptions" structure legal interpretation and the practice of law.
At 03:39 PM 10/8/01 -0400, you wrote:
>One difference would be in the sources and hierarchy of authority. Where
>arguments in court rely mostly on judicial precedents, those within and
>among the political branches are more likely to elevate other materials, to
>give a more textured treatment of relevant historical episodes, and
>ultimately to better reflect the full constitutional discourse.
>>>> MGRABER at GVPT.UMD.EDU 10/08/01 14:57 PM >>>
>Sandy Levinson writes, "I'm taking the liberty of sending this to the list,
>because I would *strongly* urge Howard and other teachers who do "moot
>courts" in their
>undergraduate courses at least on occasion ask their students to imagine
>themselves working in the Office of Legal Counsel of the Justice
>department, where most separation of powers issues are actually fought out,
>and that they have been asked to "argue" to the head of the OLC what the
>Office's position should be with regard to a given issue. Students must be
>informed that constitutional decisionmaking occurs outside of the courthouse."
>A follow-up point inspired by Whittington, Constitutional Construction. Is
>the exercise merely to relocate the argument? How will and should their
>argument differ because they are arguing to the head of the OLC rather than
>Justice Rehnquist (and how many of us in moot courts really argue to the
>Mark A. Graber
>mgraber at gvpt.umd.edu
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