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15 Cardozo L. Rev. 375 (1993 - 1994)
Models of the Opinion Function of the Attorney General: A Normative, Descriptive, and Historical Prolegomenon

handle is hein.journals/cdozo15 and id is 397 raw text is: MODELS OF THE OPINION FUNCTION OF THE ATTORNEY GENERAL: A NORMATIVE, DESCRIPTIVE, AND HISTORICAL PROLEGOMENON John 0. McGinnis* Introduction ................................................. 375 I. The Constitution and the Attorney General as Opinion Writer ..................................... .378 A. The Court-Centered Model ....................... 382 B. The Independent Authority Model ................ 389 C. The Independent Authority Model and Stare Decisis ........................................ 400 D. The Situational Lawyer Model .................... 402 E. Theoretical Models in a Political World .......... 403 II. The First Example of the Independent Authority Model and its Consequences ................................... 406 A. Attorney General Levi Lincoln and Independent Interpretive Authority ............................ 407 B. Attorney General Lincoln, President Jefferson, and the Louisiana Purchase ........................... 412 III. An Analysis of the Operations of the Current Office of Legal Counsel .......................................... 420 A. The Central Dilemma of OLC .................... 421 B. The Matching of Models to Tasks ................ 425 Conclusion ............................ ....................... 435 INTRODUCTION The judiciary is not the only branch of government that offers authoritative constructions of the Constitution and other federal laws. Since the beginning of the Republic, the executive branch has made Assistant Professor, Benjamin N. Cardozo School of Law. I served as an attorney advi- sor from 1985 to 1987 and as Deputy Assistant Attorney General from 1987 to 1991 in the Office of Legal Counsel (OLC). I participated in drafting some of the materials cited in this article. I discuss, however, only material that has been made publicly available. I am grateful to Robert Delahunty, a senior civil servant at OLC, for verifying certain of OLC's informal jurisdictional rules discussed in part III as well as for his helpful comments on this Article. I am also grateful to David Leitch, formerly Deputy Assistant Attorney General in OLC, for obtaining copies of letters drafted by OLC and sent to Congress. Thanks also to Mark Edelman, Michael Herz, David Rudenstine, Jeanne Schroeder, Paul Shupack, and Charles Yablon for their helpful comments.

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