[EL] Calling Richard Pildes

[Pildes, Rick]

Dear Steve:
I picked up the phone.  I’m glad it’s someone soliciting legal commentary and not money.  On the case in general, I agree with others that the Court is likely to reverse unanimously on the procedural issues and send the merits of the case back to the lower court.  I’m curious how many of us (judges and others) are consistently either institutional formalists or realists in the sense I try to describe.  My intuition is that very few of us are ( and I include myself in that) both because we don’t tend to think systematically in these terms and, therefore, don’t feel much obligation to ask ourselves whether we are consistent and also because I think the pull of both the formalist and realist positions is powerful and it is hard not to feel pulled strongly in one direction or the other in different contexts.

Rick

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Steve Hoersting
Sent: Tuesday, April 22, 2014 6:28 PM
To: law-election at uci.edu
Subject: [EL] Calling Richard Pildes

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
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20140422/93d8090a/attachment.html>