A rhetorical question

[Marty Lederman]

Thanks, Frank -- that's very helpful.  As my posts have suggested, I had in mind not so much litigators or scholars writing in law journals, as much as two other sets of actors:

1.  Jurists and public officials/public figures, especially those such as Justices Scalia and Alito.  When they write a dissent (Morrison) or issue a speech (Alito to the Federalist Society) or publish position papers (the Reagan DOJ) espousing a UE theory, I don't expect them to say out loud what it is that would ordinarily follow from their theory (which in some cases might also describe their ultimate aim, as in Eugene's example of some Second Amendment scholars pretending to be seeking only marginal doctrinal changes).  But I do think that others should very prominently expose just how much could be at stake.

2.  Academics qua teachers.  Most of us, I imagine, teach Morrison, and if my classes are at all representative, most students are easily enamoured with the Scalia dissent (particularly post-Starr).  How many of us, however, teach Morrison in conjunction with (i) an explanation of how much of criminal prosecution in our early history was delegated to private citizens (see Hal Krent's work, among others); and (ii) putting the IC statute in the context of both the New Deal "independent" agencies and the Nixon/Cox/Jaworski quasi-independent counsel experience?  How many of us, in other words, explain to our students just what sort of a radical transformation might be entailed if Scalia were to secure four more votes for his theory?  




----- Original Message ----- 
From: "Frank Cross" <crossf at mail.utexas.edu>
To: "Sanford Levinson" <SLevinson at law.utexas.edu>; "Richard Dougherty" <doughr at udallas.edu>; "Volokh, Eugene" <VOLOKH at law.ucla.edu>; <CONLAWPROF at lists.ucla.edu>
Sent: Saturday, August 18, 2007 11:27 AM
Subject: RE: A rhetorical question


> 
> To me, this question shifts to what academics are about.  Marty 
> Lederman speaks of hiding the ball, presumably as a litigator.  That 
> makes sense on behalf of your client.  But I, perhaps naively see 
> academics as not advocating for a client, or even really advocating 
> for a position but instead seeking truth.  That means that finding 
> truth is more important than "winning" your theoretical argument.  In 
> turn, this means you do not focus your arguments on "battles you can 
> win."  Instead, you focus on the full implications of your argument, 
> so that they can be tested.  Perhaps you should focus on the weakest 
> implications of your argument, because that is where it should 
> ultimately be tested.  Ilya's right that there are real arguments 
> against an independent Fed.  That's an important issue that the 
> "strategic winning" position would hide, for political reasons, not 
> sound logical ones.
> 
> 
> 
> 
> 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  
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