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NEW ARTICLE on @SSRN: "The Practice of Executive Constitutionalism," by me and @conorjclarke (forthcoming in @VirginiaLawRev). Check it out! (Link in next tweet to avoid being crushed by the @X algorithm).
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Dan Epps
11.2K posts
Dan Epps
@danepps
Howard and Caroline Cayne Distinguished Professor of Law, @WUSTL. Con law 📜, crim law/pro 👮, SCOTUSology 🏛. Cohost 🎤@DividedArgument.
⚜️ St. Louis, MO ⚜️ Katılım Aralık 2010
981 Takip Edilen15.8K Takipçiler
Dan Epps retweetledi
Odd debate. It is true that serious court reform has only approached being mainstream in the left legal academy in the last 5 years or so, but it’s been discussed there for much longer and as far as I can tell it is *more* popular in the academy than outside it.
Josh Marshall@joshtpm
2/ Like I barely have the heart to argue about it. Because it just barely STARTING to happen. And to the extent the small minority of reform voices want to speak louder that's precisely what i support. And if they want to claim a lot of support within the academy, well great...
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@joshtpm @PJSobkowski Fair enough. I think I'm responding more to what felt like flippancy by your anon correspondent.
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@danepps @PJSobkowski 5/ been exposed to the same people and organizations. The fact that there are reformers in the academy doesn't contradict any of this. I'm not even sure what we're arguing about.
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Josh, that’s just not true. @PeteButtigieg made SCOTUS reform a key issue during the 2020 primary, getting the other candidates to start talking about it, and he explicitly cited my and @GaneshSitaraman’s 2019 article on the debate stage.
nbcnews.com/politics/2020-…
Josh Marshall@joshtpm
@danepps Sorry. This is bullshit. The idea of serious discussions of court reform from within the legal academy is only now just seriously coming into view and has had to catch up with discussions outside the academy. The legal academy is late to this game.
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@joshtpm @PJSobkowski I guess it depends on what you mean "as a community/institution"? If you mean that the academy *as a whole* hasn't coalesced on support for reform, sure, but the academy as a whole doesn't agree on anything.
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@danepps @PJSobkowski Dan, all your points above are fine? And it sounds like we mostly agree on the necessity of reform. But they are entirely non-responsive to the points I have made, which is that the legal academy as a community/institution has been very late to the game on the necessity of ...
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@joshgerstein @derektmuller @GabbyOrr_ It is genuinely puzzling to me that, of all the low-hanging fruit issues that the administration might choose when going after universities, they haven't mentioned the proliferation of extra-time accommodations etc.
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@derektmuller @GabbyOrr_ You'd think that would become a political issue, then. But.....crickets. Seems like something our plainspoken president would jump on but....crickets.
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Honestly, higher ed should take the same approach. I keep seeing professors complain about AI cheating but few seem willing to be do anything about it. Is it really that difficult to bring back blue book exams, laptop bans in class, weekly pen & paper quizzes, etc.?
Saagar Enjeti@esaagar
It's the screens ban them. All of them. No smartphones, no chromebooks whatsoever. Paper homework only
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Dan Epps retweetledi
Academic proposals for term limits began in the early 2000s, way before any public discussion. Might depend on which specific reform proposals one has in mind. @joshtpm
Dan Epps@danepps
Josh, that’s just not true. @PeteButtigieg made SCOTUS reform a key issue during the 2020 primary, getting the other candidates to start talking about it, and he explicitly cited my and @GaneshSitaraman’s 2019 article on the debate stage. nbcnews.com/politics/2020-…
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@PJSobkowski I asked Claude to look for the earliest discussion of SCOTUS reform on TPM. Quite possible it missed something (@joshtpm can say if so) but the earliest one it could find was Sept. 2020, post-RBG death.
talkingpointsmemo.com/edblog/expand-…
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@PJSobkowski "law professors are elitist and out of touch!" is a hot take that may reflexively sound appealing.
Ironically, it's a take that only a *newcomer* to Court reform would believe. Anyone paying attention since the Kavanaugh confirmation would know it's not remotely correct.
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Pretty uninformed take, given that the legal academy has been the locus of a bunch of court reform discussions and proposals (and a LOT of criticism of SCOTUS!).
Josh Marshall@joshtpm
More on the Fancy Lawyers (and the Legal Academy) talkingpointsmemo.com/edblog/more-on… via @TPM
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@OrinKerr @welkerlaw I may be being too protective of my beloved co-clerk, but I’m still not sure what was actually wrong?
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@danepps @welkerlaw And the right honorable and outstanding jurist in question should have focused on that, I think. (My concerns are not about the result, which seems plausible, but the particular reasoning in the opinion. which I think takes some wrong turns.)
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Fun opinion on how to determine a car's speed, per Deahl. But I'm not 100% sure I agree with it. Why does the fact that the camera was certified, as legally required, to be +/- 1 mph in accuracy mean that the speed recorded of 11mph over made it "just as likely that he was traveling less than 11 mph over the speed limit as more than 11 mph over." The critical question should be the basis for that certification, not the fact of it.
John Elwood@johnpelwood
A former colleague just beat a DC speed-camera ticket at the DC Court of Appeals. DC tried to make a ±1 mph margin of error vanish by regulation. The court held a coin flip isn’t clear and convincing evidence. Ticket dismissed; math remains undefeated. dccourts.gov/sites/default/…
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@welkerlaw @OrinKerr But it’s just as likely that the system rounds up as down based on what we actually know. If we were to know it rounds down, then would I agree it’s not a coin flip.
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@OrinKerr The math seems correct to me, and starting with the certification, if it was the only record evidence of accuracy, seems like the right place to start.
More generally: a measurement device can never be *perfectly* accurate to infinity decimal places. If you accept…
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@OrinKerr @welkerlaw Yes, but absent any record evidence about which of those possibilities maps onto reality, they cancel each other out and the uncertainty persists.
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@welkerlaw @danepps Doesn't the probability depend somewhat on how the camera was programmed to cut of calcs into whole numbers? It could be that it was supposed to read 61 when the actual number calculated was (say) 60.01 to 61.00, or when it was 60.50 to 61.49, or when it was 61.00 to 61.99.
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Imagine the camera was tested and was exactly accurate to known tolerances, but that the certification requirement was only that it be within +/- 10 mph for it to be used. Certifying the camera wouldn't change the odds that a particular recorded speed was in a particular range.
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