A rhetorical question

Fri Aug 17 10:08:34 PDT 2007

Sure, but I see a big role of the acadamy in creating those 
controversies, not waiting for preexisting ones.
Posner didn't wait for economic analysis of law to become 
controversial.  For a long time, the individual rights interpretation 
of the 2nd Amendment was dormant, until academics roused it.  If 
there were a serious academic controversy about the Fed, that would 
become significant.

At 11:59 AM 8/17/2007, Volokh, Eugene wrote:
>         I meant that there is no preexisting controversy -- a
>controversy that animates even the very many people who aren't that
>excited by structural constitutional arguments -- about the Fed.  This
>makes it unlikely that constitutional arguments about the Fed will
>succeed, or even get a careful hearing.  But when there is a preexisting
>controversy, as with independent counsel, the constitutional arguments
>are more likely to be influential.
>
> > -----Original Message-----
> > From: conlawprof-bounces at lists.ucla.edu
> > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Frank Cross
> > Sent: Friday, August 17, 2007 9:40 AM
> > To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> > Subject: RE: A rhetorical question
> >
> >
> > Sometime back, I made the argument that the Fed should not be
> > independent.  Time, and empirical economic research, has
> > changed my opinion on this issue.
> >
> > However, I cannot see that an argument about the Fed would
> > not be controversial.  Indeed, claiming that the Fed was
> > unconstitutional would be very dramatic.  The only reason it
> > is not a current political controversy is that no one has put
> > it on the radar screen, it seems an implausible suggestion.
> > It's exactly what strict unitary executive people should be
> > tackling, IMHO.
> >
> >
> > At 11:28 AM 8/17/2007, Volokh, Eugene wrote:
> > >     Well, the unitary executive "types" I know are quiet
> > people, not
> > >generally given to screaming.  But Steve Calabresi, one of
> > the leading
> > >supporters of the unitary executive, has expressly argued that the
> > >independent Fed is indeed unconstitutional (see, e.g., 48
> > Ark. L. Rev.
> > >23).
> > >
> > >     Indeed, Calabresi and others don't seem to be spending much of
> > >their time criticizing the Fed rather than, say, independent
> > counsels.
> > >But this makes perfect sense:  All of us rightly focus our
> > arguments on
> > >those examples that we think will most appeal to our
> > listeners -- this
> > >means we choose those examples as to which there is a serious
> > >controversy (so that our arguments are likely to have
> > traction) rather
> > >than those as to which there isn't.
> > >
> > >     Eugene
> > >
> > >________________________________
> > >
> > >From: conlawprof-bounces at lists.ucla.edu
> > >[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> > Marty Lederman
> > >Sent: Friday, August 17, 2007 8:00 AM
> > >To: Sanford Levinson; Earl Maltz; Jonathan H. Adler; James
> > G. Wilson;
> > >CONLAWPROF at lists.ucla.edu
> > >Subject: Re: A rhetorical question
> > >
> > >
> > >
> > >         I had the same reaction as Sandy.  Where are the
> > screams from
> > >the unitary-executive types when the nation's entire
> > monetary policy is
> > >being determined by someone who is not subject to the
> > President's (or
> > >anyone else's) control?
> > >
> > >         I recall that, in my first-year ConLaw course,
> > Charles Black
> > >-- obviously not a skeptic of the New Deal -- recounted
> > having espied
> > >Arthur Burns in an airport one day in the early 1970's and
> > thinking to
> > >himself, "Now, where in the Constitution is it, exactly, that
> > >authorizes this man, never elected to any public office, to
> > >unilaterally control the entire economy of the United States?"
> > >
> > >                 ----- Original Message -----
> > >                 From: Sanford Levinson
> > > <mailto:SLevinson at law.utexas.edu>
> > >
> > >                 To: Earl Maltz
> > <mailto:emaltz at camden.rutgers.edu>  ;
> > >Jonathan H. Adler <mailto:jha5 at case.edu>  ; James G. Wilson
> > ><mailto:james.wilson at law.csuohio.edu>  ; CONLAWPROF at lists.ucla.edu
> > >                 Sent: Friday, August 17, 2007 9:45 AM
> > >                 Subject: RE: A rhetorical question
> > >
> > >                 Earl writes, "I know, this has nothing to do with
> > >constitutional law, but its kind
> > >                 of interesting anyway."
> > >
> > >                 Isn't it bizarre to say that the central
> > mechanisms of
> > >economic control, including the strange status of the Fed in an
> > >ostensibly "three-branch" system, have "nothing to do with
> > >constitutional law."
> > >
> > >                 sandy
> > >
> > >                 ________________________________
> > >
> > >
> > >_______________________________________________
> > >                 To post, send message to Conlawprof at lists.ucla.edu
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> > >_______________________________________________
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> > >
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> >
> > Frank B. Cross
> > Herbert D. Kelleher Centennial Professor of Business Law
> > McCombs School of Business University of Texas CBA 5.202
> > (B6500) Austin, TX 78712-0212 512.471.5250
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu To
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> >
> > Please note that messages sent to this large list cannot be
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> >
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed 
>as private.  Anyone can subscribe to the list and read messages that 
>are posted; people can read the Web archives; and list members can 
>(rightly or wrongly) forward the messages to others.

Frank B. Cross
Herbert D. Kelleher Centennial Professor of Business Law
McCombs School of Business
University of Texas
CBA 5.202 (B6500)
Austin, TX 78712-0212
512.471.5250  