A rhetorical question

[Frank Cross]

I'm entirely on board with Mark Scarberry's theoretical argument, but 
it should go further.  I definitely believe that academics should be 
practical.  And part of that is found in recognizing the limitations 
of one's broad theories and recognizing the importance of 
consequentialism.    However, consequentialism is not limited to 
"disruption."  Indeed, disruption is often a substantial long term 
positive if it shifts from an inferior policy to a superior one.  And 
if you accept consequentialism, you also have to consider the 
possibility that a new independent agency might be a superior 
consequentialist policy to creating the new agency within the 
executive branch.  I personally doubt this is likely to be true, but 
it merits evaluation.  Not simply dismissal as being contrary to the 
unitary executive.

Of course, adherence to the Constitution and our experience are 
relevant factors in any consequentialist assessment.  But they need 
not always rule the day.

And I want to emphasize one point that may have been obscure in my 
prior post -- humility.  Every advocate should recognize the 
possibility of their wrongness.  And, like scientists, be happy to be 
proved wrong, in the pursuit of knowledge.  Which means that theories 
should be tested against the toughest of circumstances, so that they 
might be refined and the proper scope of their operation better understood.




At 12:27 PM 8/18/2007, Scarberry, Mark wrote:
>Content-class: urn:content-classes:message
>Content-Type: multipart/alternative;
>         boundary="----_=_NextPart_001_01C7E1BD.11986701"
>
>We are academics, but we are also part of a profession, and much of 
>the point of what we do is practical. We reasonably can include 
>normative goals in our work, such as advancement of the rule of law, 
>or liberty, or justice, or the common good, as we may variously 
>define those terms. As John Finnis and others have noted, it makes 
>sense to view the law as a purposive enterprise and to analyze it in 
>terms of its proper purposes (according to Finnis, advancement of 
>the common good). When dealing with purposive or practical 
>enterprises, the finding of truth is not quite the same as it would 
>be if we were dealing with physics or geology.
>
>No pure theory of constitutional law is ever going to be 
>implemented. And we deal not with an abstract science but with the 
>practicalities of government of people. To the extent that a theory, 
>if applied to its pure limits, would lead to consequences that are 
>either impractical or undesirable, given current circumstances, that 
>may indicate that the theory is flawed at its base. Or it may 
>indicate that our history has put us in a situation in which certain 
>aspects of an otherwise sound theory would not lead to advancement 
>of the common good. So a theory of the unitary executive might be 
>the best understanding of what we as a people committed ourselves to 
>when we ratified the Constitution. All else being equal, or even not 
>too unequal, a commitment to rule of law principles might lead some 
>of us to apply that theory. But obviously all else is not equal when 
>it comes to independence of administrative agencies, and the great 
>disruption of our society that would be caused by application of the 
>theory weighs heavily against applying it in that context, at least 
>to existing agencies. In a context in which no such great disruption 
>would occur -- e.g., independent counsel laws, or a proposal to 
>create a new independent agency to control all health care in the 
>United States -- the theory might be the best approach.
>
>Mark Scarberry
>Pepperdine
>
>
>----------
>From: conlawprof-bounces at lists.ucla.edu on behalf of Frank Cross
>Sent: Sat 8/18/2007 9:27 AM
>To: Sanford Levinson; Richard Dougherty; Volokh, Eugene; 
>CONLAWPROF at lists.ucla.edu
>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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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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