Julian Davis Mortenson
@jdmortenson
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watch as she buckles and bends but never breaks on hiatus, mostly
Ann Arbor, MI
Joined May 2014
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Last Seen Profiles
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Calling all Con Law profs!
Our brand-new casebook is now available for Fall 2021. Rigorous doctrinal engagement, rich historical context, ready teachability, and meticulously honed excerpts—it’s been a labor of love. Check out the full text here: 1/
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I tend to take claims like these with a grain of salt.
But I just went line-by-line through the DeSantis education bill. And you guys, it’s *bananas*. A road map for wrecking one of our great state systems of higher education. 🧵 1/
The text of DeSantis' higher education bill has been released. It's as terrifying as the press release suggested it would be. Florida HB 999 would enact the most draconian and censorious restrictions on higher education in the history of this country.
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Breathtaking control of viewpoint and content throughout all academic activity in the entire Florida system. All colleges and universities are forbidden to spend any money to fund pedagogy, programming, or activities that “espouse diversity, equity, and inclusion.”
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All state colleges and universities must remove Women’s & Gender Studies from the list of available majors and minors. No major or minor can exist if it is deemed to be “derivative” from the “belief system” of “Critical Race Theory”—gee, wonder where that will go. 4/
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No core class can present American history contrary to a founding narrative “based on universal principles stated in the Declaration of Independence.” /3
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All faculty hiring will be done by the university board or president—who *may not delegate* any aspect of any hiring decision or any hiring authority to any group of faculty however constituted. They are “not required to consider recommendations or opinions of faculty.” 5/
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Not good times, guys!
So I thought I’d share this walk-through for those who, like me, sometimes wonder whether some seemingly nutbar thing is being fairly described. Based on the above, the answer here seems clearly to be “yes.” 8/8
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On the faculty hiring one, I keep thinking I must be misreading something or missing some other aspect of the administrative/governance workings of state education in Florida. But man the language seems unequivocal. 6/
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best 3 sentences I’ve read on the judges’ new major question doctrine
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The only thing that seems as less worrisome on the *face* of the bill is post-tenure review. Long convo, but if you’re gonna have post-tenure review, these considerations seem defensible. (Yes, given everything else, the as-applied potential is super troubling.) 7/
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@MelancholyJques
@LemieuxLGM
tend to doubt the majority of the voters in my great state have heard of it tbqf
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Per multiple retellings, Justice Scalia welcomed his clerks with approximately the following: "If you ever talk to anyone about anything that happened while you're working here, I will do everything I can to ruin your career."
I never understood the claim that AS was a good guy.
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i don't know who needs to hear this but my LSAT score was under the mean of my entering class at Stanford
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Boring pedantry alert! Under current doctrine, the Commerce Clause clearly authorizes federal abortion legislation. Sure, the SCt could chuck the caselaw in the trash. But that’s what it would take: radical change—with implications far beyond abortion.🧵1/
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This tweet is dismaying. It gets the law wrong. It gets the Sotomayor exchange wrong. And it seethes with completely unearned contempt.
The QTs are, of course, even worse. I guess there was no way to see that coming.
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POSTSCRIPT: With apologies, the notifications have become unmanageable--I literally can't refresh fast enough to keep up. So I'm muting this thread but will try to poke through it manually. Sorry if I don't answer you; there's a good chance I didn't even see what you wrote 😬
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you know what would be real nice would be some high profile Serious Republicans saying loudly and repeatedly and without equivocation, This Will Not Stand, This Is Not OK, Winning Is Not Worth This.
that would be real nice
It is just unbefuckinglievable that anyone would even consider throwing out 100,000 votes cast in good faith by eligible voters.
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I doubt I’ll ever get over Covid exposing how far our society’s sense of mutual moral obligation has disintegrated. Get yours, keep yours, and forget what we owe each other, let alone the quiet joy of service.
Some things are hard to unsee.
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there was no nondelegation doctrine at the founding and the question isn't close
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To elaborate briefly.
It is impossible for a system of review to exist at scale without some form of deference. There are special reasons this is true in the context of specialized administrative agencies, but the point generalizes across every system with which I’m familiar. 1/
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This is breathtaking. Citing Lochner as "never repudiated," J. Stickman holds that substantive due process was violated by the stay-at-home order and by the business shutdown order's distinction btw "life-sustaining" and "non-life-sustaining" businesses.
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Calling it now: the marijuana pardon’s gonna be challenged and in three years it’ll all come down to the Supreme Court poring over three words from a set of cryptic notes by somebody’s amanuesis during the aftermath of the Whiskey Rebellion
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I don’t get how it’s disputable, let alone controversial or incendiary, to observe that every other substantive due process right is in immediate short-run danger.
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Get 15 year old Julian on the phone. Right. Now.
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@ishapiro
Your descriptions of both the law and the exchange are incorrect. I hope you will correct them.
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Imagine, with originalism’s track record on historical questions, going to work, sitting down in your office, and relying on contested-at-*best* historical evidence to strike down democratically enacted regulation of a killing device.
I still can’t quite.
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my whole life has been leading up to this exact moment
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Liz Magill is a brilliant, kind, good, and wise person. She ran into a perfect storm, and the dispassionate analyst in me understands why it resulted in her resignation from Penn. But I’d take her for university president—or law school dean—in a heartbeat.
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Great
@CassSunstein
essay: "Does Evidence Matter?"
Current answer: nope! "The historical research" on Founding-era separation of powers "appears to have had no impact—none—on judges," who are as "impervious" to contrary evidence as a "college debater"
1/
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FWIW I suggest taking initial commentary on the immunity case with a grain of salt. This is a complicated opinion.
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guys I have some bad news.
it appears judges now have access to twitter. so they can see the stuff you say about their work. on twitter. with their own eyes.
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guys this is a pretty solid point
Sweeping and Forcing the President into Section 3: A Response to William Baude and Michael Stokes Paulsen
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Fans of the imperial presidency constantly point to the constitution’s Executive Power Clause as a source of basically royal authority. After years of historical work, I’m in a position to refute that claim.
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Holy cow.
@TheFIREorg
’s alleged “transcript” cuts out like half of what the Stanford administrator said. Maybe literally!? Her intervention runs from 1:16 to 7:30. FIRE‘s one pager doesn’t start until minute 4:16.
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This essay might be useful for ppl who are new to nondelegation debates. We try to offer an evenhanded primer on what nondel doctrine is and why it has such huge stakes. Then we describe historical research showing that the doctrine didn’t exist in 1789.
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When talking with skeptics, it's hard to convey the sheer volume of research that the presidential power and nondelegation projects rest on. So here's me gathering every volume of some key collections physically present at Michigan.
10 years of work--we've been through it all!
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@ishapiro
"[T]he power to regulate commerce among the several States is vested in Congress as absolutely as it would be in a single government, ... such power is plenary, complete in itself, and may be exerted by Congress to its utmost subject" -Champion vs. Ames (1903)
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I get people follow people for a lot of reasons, but I just clicked on ole boy’s profile and saw the “Followed By” prompt (I WISH I HAD NOT I WAS RUBBERNECKING NOT LOOKING FOR TROUBLE) and jeez I wanna talk to some of you about what this particular feed brings into your lives
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This is good. Standard practice in litigation and arbitration. And it would short circuit a potentially endless parade of "what are you going to do about it, sic the sergeant on me?" standoffs.
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"Though we generally defer to state courts on the interpretation of state law[,] there are of course areas in which the Constitution requires this Court to undertake an independent, if still deferential, analysis of state law."
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funny way to describe the most efficiently brutal judicial takedown of the originalist case against affirmative action I’ve ever read
but YMMV 🤷♂️
Kagan, Sotomayor, and Jackson didn't offer much of a legal argument at all, but rather wrote something more like a paper for a undergrad political-science or sociology class. | George Leef
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WhY aRe MoDeRaTe DeMs InCrEaSiNgLy OpEn To RaDiCaL rEfOrM!?!1!
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Imagine parsing Lindsey Graham’s sentence level word choices between early 2022 and now for the next two centuries like they were holy writ.
That’s originalism.
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This appears to be the final minute of the Duncan event. If that’s right, I hope that the descriptions of him being forced to end the event will be retracted and corrected as prominently and repeatedly as they were made.
Look, if you think Kyle Duncan is the "adult" in this exchange with a Stanford Law student, let alone a guy sincerely trying to have a civil dialogue with people with whom he disagrees, and definitely not trying to just get blurbed on Fox News primteime,🤷♂️
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can we get a big loud hearty "you are a terrible person" for the antisocial turd who shared materials designed to support students who miss class because of illness and/or need disability accommodations, in the name of scoring an already evaporating point in the culture wars.
Sir, this is a 1L contracts class…
@IndianaUniv
McKinney Law School professor Frank Emmert rants against originalism and calls the Founders racist. (Posted with permission of the student who sent it to me.)
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This is a move to a job where Prof. Volokh will have no teaching responsibilities and job security that is fully equivalent to formal tenure at Stanford proper.
It would be nice if The Discourse could stop suggesting that it's a "telling" decision.
Conservatives are leaving law faculties. UCLA law professor Eugene Volokh is retiring at the ripe old age of 56 & going the the Hoover Institution full time. At U San Diego, five center-right law professors (including me) have had enough & are getting out.
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Early Americanists - can anyone help me figure out what's going on with these "I intend to leave the Colony" ads/announcements? They're all over the back pages of 1770s newspapers, and they don't seem limited to one state.
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I'm not sure it's possible for former students to fully understand how much their regard and appreciation means to people who've chosen teaching as the thing they do.
If you think about a teacher who mattered to you, tell them. Will be well-received, I promise promise.
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Please please please, if you find yourself writing off whole states or regions, please please don't. Please. Don't walk away from all those good people working to make things better. There are people hungry for right in every state in this land. Stick with them.
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WAIT MR PRIVATE JET WAS PARTY TO THE ARGENTINE DEBT CASES?????
If I read this right:
In 2008, Alito took a free, unreported, private jet trip to an Alaska fishing lodge with vulture capitalist Phil Singer. And then he didn't recuse himself when Singer's Argentine debt case was up before the Supreme Court.
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How can the Court write 26 pages in defense of speech trumping equality without once addressing the race "hypo"? I actually do not understand.
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“Traffic court judges in towns w four stoplights know better than to drink and vacation and shoot with interested parties before them… [But] the unfettered sucking up, lobbying, + currying of favor are all recast as harmless socializing” -
@Dahlialithwick
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Maybe Thomas’s 180 on a core principle of administrative law was caused by careful reflection and new (legal) research. It could theoretically be true!
But that’s why responsible judges keep their damn nose clean.
Clarence Thomas used to support the Chevron doctrine, which allows delegation to administrative expertise. But the people who fund the Koch network can't buy off administrators, so they want to remove their influence from the process. Now Thomas agrees with the donors.
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In 2009, I wished that Obama had nominated someone else. I was wrong. Justice Sotomayor is a critical voice for our times.
Sotomayor's dissent is extraordinary: She compares S.B. 8 to "the philosophy of John C. Calhoun, a virulent defender of the slaveholding South," who supported state nullification of federal laws.
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i don‘t rt politician speeches very often but if I was on the receiving end of this two minutes I would change my name and go work on a novel in the upper peninsula
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IMO the video does not support the emerging conservative narrative about Stanford's response to student protests of J. Duncan. To my eyes, the video seems to show an administrator deftly navigating a hard situation in a way that made it possible for the talk to proceed. 1/
Here's video of Stanford DEI dean Steinbach's remarks slamming Judge Duncan and setting forth university policy on free speech while calling its soundness into question and stating that it might need to be reconsidered. /8
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Just ordinary trees on an ordinary street, but man are they sunshine on a gray day.
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this 🧵 and new SSRN post are 🔥
“Modern textualism has replaced faithful agency to Congress with populist appeals…, stripping single words from their context, … shopping among dictionaries and interpretive canons, and relying (often … inexpertly) on empirical methods.”
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check out the hook while my DJ revolves it
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@StoltzyStonks
so i'm scrolling through eleventy billion replies that erupted out of nowhere, but this one stood out.
the answer is that a good number of apocalyptic claims about the other side's proposals turn out to be importantly overstated in ways that can leave egg on your face 1/
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I sincerely hope people might consider dropping Loving from the litany of threats presented by Dobbs—esp when combined with a more-or-less indirect wink at Thomas’s marriage.
It’s doctrinally and politically inaccurate. It stirs a toxic stew. And it’s a rhetorical gift to GOP.
Y’all, to be clear, Loving v. Virginia had substantive due process elements to it but it was also firmly grounded in the Equal Protection Clause. Today’s decision does not seriously threaten it.
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just stepping back for a minute, it is bananas that a federal judge is writing angry 1st person tick tocks for publication in a national outlet
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listen, Harlan Crow wasn’t doing anything with that dollar when he let me use it, I don’t see the issue here
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Real talk academics, this voice inside your head is not your friend. What's obvious to you is very very very very very very very very ... very often not even apparent to others, because they haven't sat where you have for the years you have. You've got something to say. Say it.
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Not everybody could pull off calling CA5 “a think tank for the conservative legal movement,” but
@BlakeProf
has all your righteous-yet-tempered outrage needs covered right here. Wish I’d written this piece tbqf.
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"If the law in Gundy is unconstitutional, then ... 'most of government is unconstitutional.'"
with clenched-teeth kindness i will refrain from RTing the people who called Nick's op-ed hyperbolic or hysterical
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It's wrong for courts to override policy decisions made by living Americans through the political process on the basis of contestable readings of vague text written by dead people, unless there's a really clear basis in precedent, custom, and tradition for doing so. 1/
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One heck of an ASPR paper by
@cterbeek
on the origins of political originalism. Drawing on extensive archival research, it meticulously charts the close relationship btw the rise of originalism and the fight against Brown v Board. Some tough convos coming.
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@dandrezner
HUSH HUSH HUSH THE CORRECT REACTION IS ”MAKES SENSE, SEEMS CANNY, SIGN OF A MASTER NEGOTIATOR”
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the daughter: what is that weird writing?
JDM: *explains 18th century orthography*
the daughter: why are you reading that?
JDM: *explains executive power research*
the daughter: why would it matter, the olden times, to Biden?
JDM: *stares into middle distance*
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maybe he is on deadline for revising an article?
President Trump posted 89 (!) tweets or retweets between midnight and 8:04 am DC time this morning
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REAL ORIGINALISM HAS NEVER BEEN TRIED
It is unfortunate that so many prominent criticisms of originalism can be answered with “this critic has failed to
keep up with the literature.”
Of course this is probably true for many topics, not just originalism.
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for real can we get a Conservative Grievance Committee roll call on what to think when a sitting federal appeals judge demands that an untenured administrator should be fired for not threatening students more vigorously?
like maybe I’m missing something but
NEW: Fifth Circuit appellate judge Kyle Duncan, who was shouted down by Stanford Law students yesterday, says the protesters behaved like "dogshit."
He is also calling on Stanford to fire the DEI dean who participated in the uproar.🧵
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ok going out on an extremely-safe-for-your-Xian-twitter-pal limb to say this:
if Jewish colleagues who you have known to be not-crazy in a variety of professional contexts tell you that some of where The Discourse sits leaves them viscerally uneasy, maybe it is worth listening
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@NRO
NRO readers may find it useful to compare that description to a sample of the actual words written in the actual dissents. As for example here, persuasively rebutting originalist legal arguments against affirmative action with precision and care.
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This is just outstanding. A one-class supplement for 1L con law on *state constitutions* and state constitutional law. If you teach con law, please do not miss this.
Fellow constitutional law profs: Want your students to know about state constitutions? Check out these materials (intended for use in the 1L con law course) put together by myself and my colleague (and state con law guru) Bob Williams: .
#lawproftwitter
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This brutal passage from
@jedshug
summarizes the serious historian’s experience with Article II discourse. Similar examples could be multiplied ad infinitum.
Conservative orthodoxy is a house of cards. But nothing matters and nothing will penetrate it.
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for avoidance of doubt, the “Roe is settled precedent” business during confirmation hearings turns out to have been as contemptible as “depends on what the meaning of is is,” and should absolutely be factored into assessment of the present court’s legitimacy.
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Another tip for law students in hiring: assume everyone knows everyone; don’t be a jerk to anyone. (This turns out to align weirdly well with “being a decent human being“)
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Founding-era political practice can't withstand the remorseless turn of the theory crank. If Justice Thomas thinks they *should've* thought it was unconstitutional, then their actual historical disagreement is irrelevant.
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roses are red
quit projecting your agenda on the Founding
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@jbouie
also, and even stipulating the goofiness re race neutrality of "freedmen," they 100% in actual fact did use explicit racial categories
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when textualists start talking about the importance of “context”
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I would like to advise all of you, my dear dear friends, never to have children ever no matter what
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@AkivaMCohen
the amount of people who have absolutely gone to the mat in denying this would happen is wild
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i keep hearing how this place is collapsing, and in some way it is, but at the present moment there's simply no competition for intellectually interesting multi-participant, multi-perspective conversations
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This Bloomberg story is the best thing I’ve read so far on the Fifth Circuit’s decision applying nondelegation doctrine to the SEC. It covers the ground so well that I hereby deem myself off the hook. h/t
@tryptique
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I do hope that movement oriented lefties will appreciate how extraordinarily—no, brutally— effective *this* approach is
Look, if you think Kyle Duncan is the "adult" in this exchange with a Stanford Law student, let alone a guy sincerely trying to have a civil dialogue with people with whom he disagrees, and definitely not trying to just get blurbed on Fox News primteime,🤷♂️
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