[EL] Calling Richard Pildes

[Steve Hoersting]

I don't think anyone on the list much wonders where I come down on Ohio's
False Statements law: Some are too busy to wonder. Others know me well
enough to know I oppose it strongly. (Indeed, Jeff Patch once helped me pen
an op-ed on the Ohio law with the Orwellian title, "FactCheck.gov").

But Richard Pildes asked this question recently:

It’s the problem of what I call “institutional formalism versus
institutional realism” in how the Court does or should review the actions
of other institutions of government:  in deciding cases, should the Court
take into account its own view of how other institutions are
“realistically” likely to act or should the Court’s decisions rely only on
the formal legal powers other institutions have, without regard to how they
are likely to exercise (or fail to exercise) those powers?

I bring this up because, at p. 46 of the *SBA List* Transcript, Mr. Murphy,
counsel to the AG/OEC, says the following: "[T]o allow the merits [of the
statute under the First Amendment] to slip into the Article III question
fundamentally undermines the separation of powers." ­­

And I think Murphy has a point here.

My take on Pildes's recent question remains in favor of "formalism," not
least for the reasons captured quickly by Murphy under the heat of
questions from the bench.

-- 
Stephen M. Hoersting
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