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Tuesday, April 04, 2017

Institutional Independence From Across the Street

One of the questions I am considering in my past and present writings about decentralizing federal power is whether some institutions of federal power can be optimally independent if they are across the street.  Federal courts are supposed to be independent of the legislative and executive branches.  Inspectors general are supposed to perform related independent functions within the executive branch.  Can you really have institutional independence from across the street? 

I want to note three concerns.  First, metropolitan areas have their own selection effects, attracting particular types of people.  From an epistemic perspective, one might wonder how much independent thought transpires from within a pool of otherwise similar people.  If individuals have gone to the same schools, read the same books, and have the same friends and mentors, are they really different enough?

Second, a more limited range of influences shape ideological sentiments within a metropolitan area.  Individuals within the same metropolitan area will be exposed to the same—and somewhat unique—argument pools.  Individuals within the same metropolitan area will share similar personal and professional networks whom they are trying to impress and to please.  This is a version of Judge Laurence Silberman of the United States Court of Appeals for the District of Columbia Circuit’s “Greenhouse Effect.”  Lawrence Baum and Neal Devins have added provided a fantastic account of how the Supreme Court cares about certain audiences more than others, and it certainly cares more about audiences that it sees regularly in the same metropolitan area than those it rarely sees across the country.

Third, independence can be undermined not just in practice but in perception.  How does it look to Americans when an inspector general is in the same car pool as the people that the inspector general is investigating? Or when the inspector general is at the same book parties as the people that the inspector general is investigating? When federal power is centralized, events like the duck hunt that Justice Antonin Scalia went on with Vice President Richard Cheney are happening every day in many ways.

Posted by David Fontana on April 4, 2017 at 05:46 AM | Permalink


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