[EL] Calling Richard Pildes

[Steve Hoersting]

But, to be clear, I do believe COAST et al have already demonstrated harm
under Art. III.



On Tue, Apr 22, 2014 at 6:27 PM, Steve Hoersting <hoersting at gmail.com>wrote:

> 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
>



-- 
Stephen M. Hoersting
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