A rhetorical question

[Miguel Schor]

Flexible institutional arrangements may well be better than rigid  
ones but I would think that undermines the rationale for the unitary  
executive.

Miguel Schor
Associate Professor of Law
Suffolk University Law School
120 Tremont St.
Boston, MA 02108
617-305-6244
SSRN Webpage http://ssrn.com/author=469730


On Aug 18, 2007, at 3:58 PM, Ilya Somin wrote:

> Actually, even if one does believe that the Fed is very valuable,  
> comparative evidence from parliamentary democracies such as the UK  
> shows that de facto independence can be maintained (at least to a  
> great degree) even without de jure independence of the sort that  
> the Fed currently has. Perhaps the Bank of England is not as good  
> as the Fed (I don't know enough to say), but the difference between  
> the two surely is not enough to constitute a "sky is falling"  
> scenario.
>
> Ilya Somin
> Assistant Professor of Law
> George Mason University School of Law
> 3301 Fairfax Dr.
> Arlington, VA 22201
> ph: 703-993-8069
> fax: 703-993-8202
> e-mail: isomin at gmu.edu
> Website: http://mason.gmu.edu/~isomin/
> SSRN Page: http://ssrn.com/author=333339
>
>
> ----- Original Message -----
> From: Sanford Levinson <SLevinson at law.utexas.edu>
> Date: Saturday, August 18, 2007 3:18 pm
> Subject: RE: A rhetorical question
>
>> Let me translate what Ilya has written into the following:
>>
>> 1)  If one doesn't believe that the Fed if very valuable (and that
>> we'd probably be just as well off without it), then it obviously
>> isn't a "concession" to say that the UE argument would do it in.
>> The problem arises, of couse, if one believes that a somewhat
>> independent central bank is indeed valuable.  (I confess that I'm
>> an agnostic on the importance of the Fed.  I don't rule out the
>> possibility that Ilya is right, but I've not really studied the
>> issue.  My inclination is to believe that it would be perilous to
>> give control of the money supply to presidents engaged in a
>> permanent campaign for re-election.)
>>
>> 2)  All judges, liberal or conservative, are "politicians in
>> robes" inasmuch as they keep their ultimate agendas close to their
>> vests and prefer a certain amount of dissembling to full candor
>> (that might, of course, lose them majorities).  I have no reason
>> at all to disagree with Ilya (if I am in fact translating him
>> accurately).
>>
>> Frank's point is that academics have a duty to be more candid.
>> Here a fine role model might well be Richard Posner, who certainly
>> never hesitated to follow his ideas out to their most
>> controversial (and sometimes absurd) conclusions.  So the question
>> remains as to what someone like Steve Calabresi, who has in fact
>> been a model of candor, should say if he were to be nominated for
>> the Supreme Court.  (I take it that every nominee to an "inferior"
>> court can always engage in the "I'm obligated to follow the
>> Supreme Court's direction" response, perhaps sincerely.)
>>
>> sandy
>>
>> ________________________________
>>
>> From: Ilya Somin [mailto:isomin at gmu.edu]
>> Sent: Sat 8/18/2007 1:15 PM
>> To: Marty Lederman
>> Cc: Sanford Levinson; Richard Dougherty; Volokh, Eugene;
>> CONLAWPROF at lists.ucla.edu; forwarding for fcross
>> Subject: Re: A rhetorical question
>>
>>
>>
>> I for one always mention the Federal Reserve and post-New Deal
>> independent agencies in class discussions of Morrison and the
>> unitary executive. I also point out some of the the reasons why
>> this is unlikely to be a true "sky is falling" scenario of the
>> sort that I mentioned earlier on this list.
>>
>> My impression is that these issues have been a part of the debate
>> over executive power for a long time and are hardly a secret.
>>
>> I don't think, however, that the UE necessarily precludes letting
>> private parties engage in prosecution, so long as executive
>> officials retain the power to prevent them if they want to.
>>
>> As for Alito and Scalia, it is hardly unusual for prominent judges
>> and public figures to not fully trace out the most extreme
>> implications of their arguments. Liberal judges do this all the
>> time too. Moreover, Scalia very likely believes that the UE (like
>> other structural constitutional doctrines) should not be allowed
>> to displace very well-established practices and precedents, even
>> if they are unconstitutional as an original matter. This is
>> consistent with his famous article on "faint-hearted" originalism
>> and his position on Commerce Clause issues. Personally, I am a lot
>> less supportive of precedent than Scalia. But his position is not
>> unusual and is hardly unique to advocates of the unitary executive.
>>
>> Ilya Somin
>> Assistant Professor of Law
>> George Mason University School of Law
>> 3301 Fairfax Dr.
>> Arlington, VA 22201
>> ph: 703-993-8069
>> fax: 703-993-8202
>> e-mail: isomin at gmu.edu
>> Website: http://mason.gmu.edu/~isomin/
>> SSRN Page: http://ssrn.com/author=333339
>>
>>