Dan Epps

I very much appreciate Mark’s engagement and think he makes some good points worth reading!

Case v. Montana and the General Law Approach to the Fourth Amendment Justice Gorsuch seems to look to modern general law to flesh out the content of the Fourth Amendment in today's Fourth Amendment decision.

New post from me on the @dividedargument.bsky.social blog: "Case v. Montana and the General Law Approach to the Fourth Amendment"

blog.dividedargument.com/p/case-v-mon...

What you want today: Tariffs, Voting Rights

What you’ll (probably) get instead: USPS v. Konan (liability for undelivered mail); Coney Island Auto Parts (time limits for motions to set aside void judgments)

The Marshal and the Margarine | Divided Argument We're back with the first episode of the new year, breaking down the interim docket opinion/order in Trump v. Illinois, the national guard case, after first warming up with new Erie scholarship, state...

NEW EPISODE: "The Marshal and the Margarine"

We catch up on Trump v. Illinois, the national guard case, after first warming up with new Erie scholarship, state criminal jurisdiction over federal officers, and some recent online discourse.

dividedargument.simplecast.com/episodes/the...

Sorry I thought you meant a suit against the agent personally as an alternative to criminal charges against him. If FTCA I think the best path would be to style as an international tort subject to the law enforcement proviso

Why wouldn’t this be barred by the Westfall Act?

When you’re waiting for huge opinions, never, ever underestimate the Court’s ability to disappoint you.

If you entirely lack the relevant context, it might be best to sit this one out rather than jumping in to try to contradict based on vibes. I stand by what I said, I have good reason to say it, and my goal is to encourage my peers to engage in ways that are socially productive

I took Mark's post as essentially saying it's not worth engaging even with folks left of center if they're not 100% with the program 100% of the time.

But (1) we need also to keep our side honest and rigorous and (2) try to not only speak to our ingroup in a way that alienates good-faith folks with different values.

I am absolutely good with calling out low quality/politically motivated work and I hope I wasn't read as saying otherwise. I spend less time doing that because (1) much of it isn't in my core areas of expertise and (2) a lot of folks have that covered.

🤷‍♂️I try to talk to a lot of folks outside that bubble, even if _policy_wise I'm more of a centrist. I think preferring one set of policies is not the same thing as preferring to live in a bubble where you don't interact with people who don't share your views.

that also seems bad?

The entire thread is worth your time. The portion around and including this post gets at a point I tried to make in my book - the less common ground within the profession about what the rule of law entails, the less likely we are to be able to sustain the rule of law.

No...I think it's a genuinely hard question (what to do about X). I struggle with it. Sort of a collective action problem in that a lot of folks I respect are there still.

Ok, in the sense that there are certain kinds of political principles that should be applied consistently?

If that's the claim I think I agree with it! But accepting that claim means I can still take legal reasoning seriously on its own terms, right, even if sometimes I think it leads to bad outcomes?

Ok, I'm not trying to be deliberately dense, but I'm still confused. What _does_ change if we say law = politics?

OK—but what does it mean for ordinary "law" cases if we think all law is "politics" even if not partisanship?

I didn't take _that_ to be the argument; I thought the argument just that we should embrace the idea that law IS just politics?

But isn't that the result if we just say law = politics? Or do you mean we should think only that *constitutional* law = politics?

Got it; I tend to think of reactionaries as decidedly right-wing, but I guess it's all relative to what things you want to change and what to preserve. I'm surely in the middle on that question.

That's interesting—what is a "reactionary" center left though (genuine Q)?

Regardless of one's view of politics, is it a better world if courts declare—even in ordinary breach-of-contract cases—that "Plaintiff wins because he's a Dem" (or R based on who appointed the judge)? Even if you dislike judicial review, we need courts for ordinary disputes. We need law for those.

But what would be spineless is not even trying. Because, in the end, trying to save the rule of law requires trying to preserve some middle—some space where we all have to try to take the other side's values seriously. In the end, that's all we have.

I do plenty of that on my podcast. But sometimes I also try to encourage rigor on my side of the aisle. That's hard. Maybe it makes everybody on both sides hate me!

So in my commentary and social media engagement, I try to add value when I can. There are a lot of folks on the left doing an excellent job calling out bad judical reasoning and hacky, low-quality Trump-enabling scholarship.

But people trying to teach and think seriously can and should do better. Talk to people who disagree. Engage. Let's have a conservation, and let's try to have a conversation with other people with very different values, as hard as it is. What's spineless is not even trying.

Frankly this is a hard thread to write precisely because I'm sure it will generate plenty of screencaps and subtweets.

That's why the accusation that people like me are "spineless" is so rich. It's far easier to be one of the high school cool kids snickering with your friends about the nerds. It's way harder to talk to people who disagree with you!