Andy Hessick

@OrinKerr Totally agree. Incompletely theorized agreements often rule the day.

One reason I'm skeptical of grand theories of constitutional interpretation is that Supreme Court Justices do not write opinions in most cases. They usually join the opinions of others. This creates a practical way out of a theory, in that no one pays much attention when a Justice with one set of theoretical commitments joins opinions based on different commitments reaching results that may be difficult or impossible to justify based on the joining Justice's professed theory.

Waking up to an unexpected and excellent draft from a coauthor is the best.

Sirius just listed Billy Mack as the singer of Xmas is all Around and it feels right.

@OrinKerr None in a straight up easy syllogism. But definitely a preference comes before the application of the doctrine. For example, whether to accept the doctrine in the first place or to challenge it or seek to change it etc.

@AndyHessick Interesting. What is the personal preference on which a purely doctrinal argument rests?

One of the things I often see in scholarship on public law, or at least in criminal procedure, is what you might call The Reference Problem. The author wants more of Right X, but needs to root the argument for more X in something beyond the author's preference. So there's a somewhat unexplained choice of reference point to make the argument seem like a neutral claim to align with the reference point. Maybe the claim is that Right X needs to be interpreted more broadly to match some shared value. (Ok, but usually a value is not really all that widely shared, or else there would already be more Right X.) Or maybe it's to match the promise of some famous case. (OK, but there are other cases, and why prioritize that one case over the others?) Or maybe it's to make the law more coherent or to reconcile the law of Right X with the law of other rights. (OK, but why change the law of Right X to match that of other rights, and not the other rights to match the current law of Right X?) The key challenge in a lot of these papers, it seems to me, is justifying the reference point.

I know I’m biased, but it really is an amazing opportunity. Nothing but working on Supreme Court cases and teaching students how to do it.

@OrinKerr I’m deeply skeptical of anything over 5000 words. Including my own work.

Editors, the length of law review articles is mostly on you. My 2 cents: Be skeptical of long submissions. If it *has* to be long, okay. But law review authors have been known strategically bury their point in an endless sea of pages. That's not a good thing. Don't reward that.

@JudgeBobOrr To be fair, word is that she’s freakishly good.

Great 9 holes of golf with grandchildren Annabel and Robby and son Rob at Kenmure in Hendersonville. You know you’re getting old when your granddaughter consistently out drives you.

Most fair game of SCOTUS trivia I’ve ever played.

Really enjoying the @ShortCircuit_IJ Supreme Court preview here at @unc_law featuring @JustinPearsonIJ @AndyHessick and @SheldonGilbert

SCOTUS’s recent standing decisions (diamond gutierrez) address standing when the remedy doesn’t undo the harm. The reason for the cases is that the injury in fact test is relatively new. Now that the court has fully adopted it, it needs to adjust the rest of standing doctrine.

The court keeps charging down the path it set out for itself for standing law. Redressability is now satisfied if commonsense says that relief is predicable instead of speculative. No well-defined test here. Redressability turns on vibes about the possible effects.

@wrdcsc More than once I’ve had families tell me that a speech upset them and marred the graduation. I feel awful for them. The ceremony is for all, but not everyone shares the same views.

I’m sorry, but university valedictorian addresses are not political platforms. Student speakers who break agreements to avoid division are not victims of oppression when they are held to account. Not a free speech issue. Let families celebrate without rancor, or take the penalty.

Charles II smiles.

AI just told me that Alexander Bickel was a judge on the second circuit . . . 😞

@ProfessorPujol @CBHessick @OrinKerr Thapar was appointed by Trump and was in his scotus shortlist. Know your team, buddy.

@CBHessick @AndyHessick @OrinKerr thoughtful scholars = libtards academics who agree with me

Judge Thapar (6th Circuit) characterizing @AndyHessick and @OrinKerr as "thoughtful scholars" in US v. Whitlow, decided yesterday🙂

Per the discussion that the 22d amendment has a loophole for vice presidents: the constitution has lots of loopholes. The one in the 22d is not particularly big compared to some of the others.

What are the worst legal doctrines--with "worst" defined in no particular way? The intelligible principle doctrine gets my vote this morning. "You can't legislate, full stop---except we will let you legislate"

A good illustration of the court ditching originalism when it is inconvenient. Common law courts historically recognized actions on the case for violations of codified rights.