Ben Eidelson @beidelson Twitter profile

Pinned Tweet

Ben Eidelson

1 year

A new paper of mine, "The Etiquette of Equality," is out in Philosophy & Public Affairs. It tackles a hard set of issues about how we convey respect amid social inequality. I hope others will find it thought-provoking, maybe even clarifying or useful. 1/6

41

29

170

Last Seen Profiles

@mukulkrjain

@ABDIRIZAKEYE

@DeclanWarde

@PortalAtleti

@Renegades_bs

@skngov

@VrataDostal

@SXLENTDEATH_

@PisaniLab

@sixfivelando

@SupportersNL

@Bri_Laster

@OLCoachPahl

@seeraenthen

@curlingband

@Hon_Kiunjuri

@shilladfs_jp

@fffafa_daifuku

@vitopiccolo

@jeramy_stith

@gxbysnova

@DGCAnnaBetty

@kaaceywaacey

@kassidi_steel

@AwakeBPS

@MooshieMadz

@KHSGirlsHOOPS_

@Arztauskunft

@PuckFair

@ColitiScope

@Showtime_CoachP

@scottzenteno

@cass23456

@HacerseMayor

@JalanRivers

@SuatToktas

Ben Eidelson

@beidelson

5 months

I'm so dismayed by Liz Magill's resignation and I so hope that Claudine Gay @Harvard will not follow. I fear too few of us have said what many of us think: She did nothing wrong, & the real failure of leadership would be surrendering to a campaign so hostile to our values. /1

1K

894

6K

Ben Eidelson

@beidelson

5 months

@Harvard First, somehow this has become impolitic to say, but the idea that Gay failed adequately to affirm that Harvard is anti-genocide(!?) is genuinely absurd. Those who are saying that are confused, misled, or making cynical and cowardly political calculation. /2

69

86

851

Ben Eidelson

@beidelson

5 months

@Harvard But since nobody can trust anybody to understand anything, the White House decided it was better to position @POTUS on the "anti-genocide" side of the pseudo-scandal. It's embarrassing and it should be an insult to everyone's intelligence. /4

13

63

647

Ben Eidelson

@beidelson

5 months

@Harvard This White House statement is a good example of the "cynical calculation" bucket: It says nothing different than what Gay herself said umpteen times! All she refused to say was that students are *punishable* for this ill-defined category of speech *regardless of context*. /3

28

73

636

Ben Eidelson

@beidelson

5 months

@Harvard @POTUS For me, what makes this so wrenching is that universities are supposed to be enclaves where substance—facts, reason, even nuance—still count. That's a huge part of what I value about being here. /7

43

56

545

Ben Eidelson

@beidelson

5 months

@Harvard @POTUS But surrendering to this campaign absolutely would fail to meet the moment, in my respectful view. It would validate baseless attacks and betray our commitment to rigor & intellectual seriousness. /10

28

44

492

Ben Eidelson

@beidelson

5 months

@Harvard @POTUS If serious people can be forced out as our leaders by politicians & donors who gin up one of these spirals, that sense of what Harvard aspires to be about will suffer. /8

24

50

466

Ben Eidelson

@beidelson

5 months

@Harvard @POTUS It's like Trump's "people are saying..." device. Here, the fact that people are alarmed or dissatisfied (whether with good cause or not) is reported, and reacted to, and it becomes the fact that people are alarmed or dissatisfied that people are alarmed or dissatisfied about. /6

6

41

412

Ben Eidelson

@beidelson

5 months

@Harvard @POTUS Bottom line: The accurate & sensible testimony last week did not fail to "meet the moment of moral clarity"—whatever media or cynical politicians might say, and even if some students, in total good faith, are unsettled to learn that speech codes aren't more restrictive. /9

22

45

401

Ben Eidelson

@beidelson

9 months

So ... here's something different! Over the past couple months, I've been working on a macOS app called "Case Viewer." It's something I've wanted to have since law school—a fast, mostly frictionless tool for accessing & navigating the best available versions of judicial opinions.

12

61

385

Ben Eidelson

@beidelson

5 months

@Harvard @POTUS So what? Well, it's umpteen statements & implications like this that lead lots of well-meaning people, including some of our students, to think or feel that university presidents *were* somehow equivocal in their condemnations of antisemitism or resolve to keep students safe. /5

12

39

383

Ben Eidelson

@beidelson

5 months

@Harvard @POTUS And in the long run it would not well serve students and others who feel confused & alarmed in this difficult moment either. /11

108

35

365

Ben Eidelson

@beidelson

5 months

Now out in final form at @HarvLRev . The biggest addition is an extended critique of Justice Barrett’s defense of the major questions doctrine as “common sense” (pp. 540-44). Thanks again to all who gave us feedback & to hard-working student editors!

Ben Eidelson

@beidelson

1 year

I've posted a new draft on SSRN—"The Incompatibility of Substantive Canons and Textualism"—co-authored with my @Harvard_Law colleague Matthew Stephenson. Here's the link, and the abstract is below. Comments very welcome!

2

24

110

7

38

187

Ben Eidelson

@beidelson

3 years

There are *many* things wrong with Judge Hanen’s decision in the #DACA case today, but maybe most glaring is that it makes the exact same error that led the Supreme Court to invalidate the Trump administration's DACA rescission last year. (Thread)

3

42

124

Ben Eidelson

@beidelson

3 years

Huge congratulations to @nikobowie for this wonderful recognition by the graduating class @Harvard_Law ! The students wrote that his vision of law as a tool for justice "inspires us all"--very much my experience, too.

2

5

126

Ben Eidelson

@beidelson

3 years

Many are saying that last night’s Supreme Court order blocking Biden’s rescission of the “Remain in Mexico” policy was the inevitable flip side of last year’s decision blocking Trump’s rescission of DACA. Here’s a 🧵 about why, w/ due respect, I think that’s wrong. 1/

2

34

120

Ben Eidelson

@beidelson

5 years

Very excited about the chance to teach and learn with students and colleagues @Harvard_Law ! Seems a good moment to dip a toe in the world of tweeting, too. (It only took me ten years since signing up for this website to send this first tweet…)

Harvard Law School

@Harvard_Law

5 years

Benjamin Eidelson, a scholar of constitutional law and legal theory, has joined the Harvard Law School faculty as an assistant professor

0

4

28

14

4

113

Ben Eidelson

@beidelson

1 year

I've posted a new draft on SSRN—"The Incompatibility of Substantive Canons and Textualism"—co-authored with my @Harvard_Law colleague Matthew Stephenson. Here's the link, and the abstract is below. Comments very welcome!

2

24

110

Ben Eidelson

@beidelson

4 years

My article, "Respect, Individualism, and Colorblindness," is out at @YaleLJ (). It critiques the idea that colorblindness in equal protection law serves to “treat people as individuals.” Thanks to the editors and many others for crucial help along the way.

4

20

104

Ben Eidelson

@beidelson

4 months

A student I didn't know stopped me outside daycare this morning to say they use & love @CaseViewerApp . Somehow that never happens with my articles! If you're a law student/prof getting ready for the semester (and you use a Mac), check it out! @Harvard_Law

3

13

88

Ben Eidelson

@beidelson

2 years

I also found this story appalling. And it seems Mackenzie Fierceton was mistreated & misjudged by @Rhodes_Trust as well. Does the trust have anything more to say by way of regrets/ apologies/ investigation/ reforms? The vacuous statement in the article doesn’t seem sufficient.

Joseph Fishkin

@joeyfishkin

2 years

Rachel Aviv's reporting and writing are excellent, and she doesn't state more certainty than she has. But Aviv has shown enough to prove this: Penn needs to apologize for this travesty. Every university administrator should read this gripping, horrific account of what not to do.

2

12

66

0

9

67

Ben Eidelson

@beidelson

4 months

As part of our ongoing effort to build & integrate the law & philosophy community here @Harvard , the Initiative on Law & Philosophy has a new website at . More content to come, but if you're interested, sign up for the email list there! cc @Harvard_Law

3

15

69

Ben Eidelson

@beidelson

2 years

Not expert on this statutory scheme, but this sure sounds like it's based on a statutorily irrelevant factor in violation of the APA. § 564 doesn't talk about "public confusion" And cf. earlier EUA applying the criteria (). Curious if experts disagree?

Kasie Hunt

@kasie

2 years

NEWS @CNN : Dr. Fauci confirms on the record that regulators are looking at waiting until this summer (likely June) to approve vaccines for children under 5 in order to avoid public confusion. This comes even as the Moderna shot could be proven safe and effective as early as May

270

563

2K

1

10

55

Ben Eidelson

@beidelson

5 years

In addition to other possible Qs, I believe the effort to make health insurance a condition of *visas*, rather than entry, is not authorized by 1182(f)—for reasons touched on by the DC Cir here () and in pp. 20-26 of this brief ().

Almaqrami Reply Brief.pdf

drive.google.com

Laurence Tribe 🇺🇦 ⚖️

@tribelaw

5 years

Even if this is legal — I’ve not had a chance to research that issue yet — it’s profoundly unamerican. So many patriotic, productive Americans could never have come here and become citizens if this regime had been in place when they arrived. Like me, eg.

167

879

2K

1

14

47

Ben Eidelson

@beidelson

2 years

Here's an argument on behalf of EPA in next week's blockbuster WV v. EPA case that I haven't seen. Not an expert on the CAA, which is why this is just a (long) twitter thread. But it seems substantial to me and is internal to the conservatives' jurisprudential commitments. /1

5

11

49

Ben Eidelson

@beidelson

2 years

I'm honored to receive this award from the @TheAALS admin law section, and to be in such great company with @BlakeProf ! I'll also take this chance to plug the paper again ... "Reasoned Explanation & Political Accountability in the Roberts Court" here:

1

48

Ben Eidelson

@beidelson

3 years

Here’s the final version of my paper on the deeper logic of the DACA & census cases: . Thanks to many colleagues & friends who shared insights and to the terrific editors at @YaleLJournal . As @lsolum says, download it while it's hot!

1

6

47

Ben Eidelson

@beidelson

8 months

Case Viewer, my macOS app for fast access to cases (& statutes), still doesn't have full-blown documentation, but I posted a demo video here: . Now with jumping to pincites, fast Word export, PDFs of reporters, copy w/ citation, & more. Free if you want!

Ben Eidelson

@beidelson

9 months

So ... here's something different! Over the past couple months, I've been working on a macOS app called "Case Viewer." It's something I've wanted to have since law school—a fast, mostly frictionless tool for accessing & navigating the best available versions of judicial opinions.

12

61

385

2

11

43

Ben Eidelson

@beidelson

9 months

Or in the kind words of early tester @StephenESachs : "Oh man this is beautiful." You can see the app in action and download it at . It's available on a "pay what you want" model—i.e., free if you want it to be.

1

6

43

Ben Eidelson

@beidelson

3 years

I’ve posted a new draft on SSRN called “Dimensional Disparate Treatment.” It offers a new way of thinking about discrimination claims in the wake of Bostock, informed by some venerable but overlooked philosophical tools. Link & abstract below … (1/4)

1

3

41

Ben Eidelson

@beidelson

4 years

Thanks Niko! A huge team effort led by courageous DACA recipients themselves. But, yeah, I’m a little stunned. Such a privilege to be a part of this case. See also our brief laying out this theory, with the great @LinzCHarrison , @JennerBlockLLP , & others.

1

4

39

Ben Eidelson

@beidelson

2 years

What does it mean to disfavor someone "because of" one of their attributes? Who won the debate in Bostock? I try to answer those Qs & more in final version of "Dimensional Disparate Treatment": . This is my favorite of my law-review articles and ...(1/3)

Ben Eidelson

@beidelson

3 years

I’ve posted a new draft on SSRN called “Dimensional Disparate Treatment.” It offers a new way of thinking about discrimination claims in the wake of Bostock, informed by some venerable but overlooked philosophical tools. Link & abstract below … (1/4)

1

3

41

1

7

38

Ben Eidelson

@beidelson

9 months

It started out as a procrastination project of sorts, but IMHO, it's actually turned out really well. In fact I'm a little afraid it will prove a bigger 'contribution' than any of my law-review articles. ("This App fills a major gap in the literature?" 🙄)

1

2

38

Ben Eidelson

@beidelson

4 years

This is basically @AndrewMCrespo 's thread last week (about the 4th Amendment and Portland van video) performed as socratic dialogue, with Rep. @tedlieu as the law professor and AG Barr as student who didn't do the reading.

Andrew Crespo

@AndrewMCrespo

4 years

📺Rep. @tedlieu questioned AG Barr on the van video. Barr initially denies that taking someone in for questioning is an arrest. Contra Dunaway v. NY. Later, he changes the hypo. Presumably because the facts are clear: This was an illegal arrest.

63

1K

3K

0

10

32

Ben Eidelson

@beidelson

5 years

In this @nytopinion op-ed, I explain how the Supreme Court could overturn the DACA rescission on narrow grounds, vindicating principles of political accountability and judicial restraint.

Opinion | A Way Out for the Supreme Court on DACA (Published 2019)

A narrow ruling would put the ball back in the president’s court and let the justices avoid politics.

www.nytimes.com

0

9

31

Ben Eidelson

@beidelson

2 years

Here's a hypothetical and a 🧵 to highlight the incoherence of the position put forward by opponents of aff. action yesterday, and to tease out some broader implications. Suppose student S submits the essay below, and the admissions officer comes away more inclined to admit S.

1

4

32

Ben Eidelson

@beidelson

3 years

First, Secretary Duke’s memo rescinding DACA contained *zero* explanation of why she thought DACA was bad policy. Whereas Secretary Mayorkas’s discussion of that issue is ~ 2,000 words long--which is 25x the length of the Supreme Court’s explanation for its own order, btw. 3/

1

3

31

Ben Eidelson

@beidelson

3 years

Deeply weird to see @wsjopinion highlight this paragraph today from an old paper of mine about the filibuster (). Do they not understand the point -- that filibusters by Republicans (e.g. now) are far more undemocratic than past filibusters by Democrats? 1/

2

9

30

Ben Eidelson

@beidelson

3 years

In any case, it was hardly hypocritical or partisan for the liberals to support the DACA decision and dissent from this one. Whatever one thinks of the policy merits in each case, the considerations animating that precedent should have cut exactly the opposite way here. (End) 14/

1

27

Ben Eidelson

@beidelson

2 years

Here’s an amicus brief that I just filed in Biden v. Texas, the Supreme Court case about the Biden administration's ongoing effort to end the Trump-era "Remain in Mexico" policy (aka MPP). Link, first few pages, and a short 🧵 below ... (Link: )

1

6

26

Ben Eidelson

@beidelson

5 years

(Disclosure- I was one of the lawyers for plaintiffs in that case.)

1

2

22

Ben Eidelson

@beidelson

2 years

@stevenmazie Gorsuch's invocation of a "slight suspicion" standard here is one of the most brazen abuses of quotation marks in a SCt opinion that I can remember. Here's a side-by-side (note "set aside" came on next pg in Masterpiece, after reviewing evidence & finding actual "hostility")

9

8

24

Ben Eidelson

@beidelson

1 year

Looking forward to this discussion with @TaraLeighGrove1 , @chris_j_walker , @AbbeGluck , @NeysunM , & my co-author Matthew Stephenson on Thursday morning! And here is our paper, "The Incompatibility of Substantive Canons and Textualism": . All are welcome!

Law & Governance

@LawAnGovernance

1 year

Textualists are ascendant; can they still draw on “substantive” canons of construction? @beidelson & Matt Stephenson address in a new paper in the @HarvLRev . Join host @NeysunM as we discuss with @TaraLeighGrove1 , @chris_j_walker , & @AbbeGluck on Thursday:

1

6

2

6

24

Ben Eidelson

@beidelson

1 year

This is a fascinating paper that will shape how I think about & teach large swaths of con law—and, by the way, one any law review would be very lucky to get. As @lsolum says, “download it while it’s hot!”

Sherif Girgis

@sherifgirgis

1 year

Thanks, @lsolum ! My submitted-to-journals piece on distinctive interpretive method driving many SCOTUS cases, & its striking implications. Acknowledgments coming; thanks 1st to @jacklgoldsmith for pushing me to write when I was feeling not up to challenge!

7

21

106

3

1

22

Ben Eidelson

@beidelson

4 years

This is nice, but should read 'advanced in a brief co-authored w/ @LinzCHarrison , Ian Gershengorn, & others at @JennerBlockLLP , as part of a larger litigation effort involving dozens of lawyers & spearheaded by courageous DACA recipients themselves.' Too long for a tweet I guess!

Harvard Law School

@Harvard_Law

4 years

The theory adopted by the U.S. Supreme Court had been developed and advanced by Professor Benjamin Eidelson, who served as co-counsel to a set of parties challenging the Administration’s termination of DACA @beidelson

2

11

33

0

2

23

Ben Eidelson

@beidelson

7 months

Has anyone challenged the state bans on gender-affirming care for kids (KY, TN, etc) on religious freedom grounds? Not at all implausible that parents & kids of faith would feel compelled to procure (& clinicians would feel compelled to provide) care that reduces suicidality, etc

10

2

22

Ben Eidelson

@beidelson

3 years

Second, as the Court stressed in the DACA case, Duke’s rationale was just confused. Even if her premise was sound, it could not explain why she rescinded the forbearance policy itself. Nothing remotely like that here. (More on that point here: ) 4/

2

3

21

Ben Eidelson

@beidelson

4 years

This is an extraordinarily clear and sweeping account of the dismal state of US labor law, told through concrete stories from all sectors of the economy & society, by @josheidelson (my brother)

Josh Eidelson

@josheidelson

4 years

My feature in new @BW : How the American Worker Got Fleeced It's about a lot of what I've spent the past months/years covering:failed labor law, fissured work, the despotic U.S. workplace, & how the pandemic has brought things to a head, & offers an opening

104

1K

2K

1

3

21

Ben Eidelson

@beidelson

3 years

But because the Mayorkas memo wasn't a political dodge in the first place, there is little reason for the Biden administration not to issue another memo in short order--making more express its consideration of “reliance” etc.--and move forward with the change. 12/

1

3

21

Ben Eidelson

@beidelson

3 years

Just like last time, that's a non sequitur: even if his legal analysis were sound (which it is not), it would not be a reason for the action that he took. In short, the court simply gave no reason for threatening the life-changing protection provided by DACA itself. 6/

1

2

19

Ben Eidelson

@beidelson

3 years

And that's why the DACA rescission was struck down: it was based on an objection to *downstream benefits* of deferred action, but that objection was treated, w/o explanation, as a basis for rescinding DACA itself—thereby taking away the core assurance against removal, too. 4/

1

2

19

Ben Eidelson

@beidelson

3 years

Remarkably, Judge Hanen made exactly the same mistake today. He goes on for pages about the alleged illegality of lawful presence & work authorization, but then he vacates *the DACA Memorandum* on that basis (albeit with a stay as to current beneficiaries). 5/

1

19

Ben Eidelson

@beidelson

3 years

The other so-called benefits of DACA actually come not from DACA specifically, but from *grants of deferred action generally*, pursuant to longstanding regulations and policies that predate and are entirely independent of the DACA Memorandum. 3/

1

18

Ben Eidelson

@beidelson

3 years

The inaugural issue of the American Journal of Law & Equality from @mitpress includes a new paper of mine about algorithms & the moral foundations of disparate impact law, and a thoughtful response from @Debbie_Hellman . A few ¶s from the intro that capture the gist: (1/3)

The MIT Press @mitpress.bsky.social

@mitpress

3 years

The inaugural issue of the AMERICAN JOURNAL OF LAW AND EQUALITY from @Harvard_Law and @mitpress has just been published! The first issue of this #OpenAccess journal explores #meritocracy and its discontents: . #Law #Equality #Justice

2

17

39

1

5

19

Ben Eidelson

@beidelson

3 years

In fact--evidently anticipating arguments that the DACA decision applies here—Mayorkas *specifically addressed* the possibility of modifying rather than rescinding MPP, and explained why he rejected it. The DACA case required nothing more (and probably required less). 5/

1

3

20

Ben Eidelson

@beidelson

1 year

@wrdcsc Apropos of that paper from earlier today: “abortionist” sounds jarring in a judicial opinion because of its lexical metadata (Geoff Nunberg’s apt label), which is emphatically ideological. It’s English, sure, but it’s not the semantics that invoke the ideology, it’s the metadata.

4

19

Ben Eidelson

@beidelson

3 years

Perhaps most importantly, the memo unarguably *owned* that weighing. The DACA case was fundamentally about Trump’s effort to pass the buck for an unpopular policy choice by framing that policy as legally compelled. (As I argued in @YaleLJournal here: ) 9/

Ben Eidelson

@beidelson

3 years

Here’s the final version of my paper on the deeper logic of the DACA & census cases: . Thanks to many colleagues & friends who shared insights and to the terrific editors at @YaleLJournal . As @lsolum says, download it while it's hot!

1

6

47

1

3

19

Ben Eidelson

@beidelson

3 years

In that case (Regents), the Court explained that the DACA Memorandum itself does not confer “lawful presence” or other benefits. Rather, that policy (i.e., DACA proper) just established criteria for granting "deferred action"—an assurance against deportation. 2/

1

17

Ben Eidelson

@beidelson

3 years

And even those who think that certain benefits are illegal as applied to certain people (which and whom has never been clear, but that's another story) should be able to agree that today's order is erroneous for this now-familiar reason. 7/

2

1

17

Ben Eidelson

@beidelson

4 years

I have a long post up at Balkinization unpacking the #DACA opinion and defending Chief Justice Roberts' approach. I’ll highlight some of the key points in this thread.

1

8

17

Ben Eidelson

@beidelson

1 year

I had a great time talking with Max Diamond about individualism and affirmative action for the excellent podcast produced by the Law & Philosophy Society @Harvard_Law . Many other episodes worth checking out too ( @scottjshapiro , @jdmortenson , @lsolum , @StephenESachs & more).

Harvard Law & Philosophy Society Podcast

@lawandphilpod

1 year

What Does It Mean to Treat Someone as an Individual? A Conversation with Professor Benjamin Eidelson

2

0

2

1

18

Ben Eidelson

@beidelson

3 years

(I wrote more on the forbearance/benefits distinction in connection with Regents in this op-ed () and blog post (), as well as this brief in that case: .)

Opinion | A Way Out for the Supreme Court on DACA (Published 2019)

A narrow ruling would put the ball back in the president’s court and let the justices avoid politics.

www.nytimes.com

0

1

18

Ben Eidelson

@beidelson

2 years

Last night was the last meeting of my reading group @Harvard_Law devoted to @shershovitz 's wonderful book, "Nasty, Brutish, and Short: Adventures in Philosophy with My Kids." Scott joined us for Q&A and offered such generous & thoughtful answers to each student's questions. (1/2)

4

1

17

Ben Eidelson

@beidelson

5 years

As @lsolum says, “Download it while it's hot!”

Lawrence Solum

@lsolum

5 years

Eidelson on Colorblindness & Treatment as an Individual

0

1

3

1

2

17

Ben Eidelson

@beidelson

4 years

This is terrific news! I admire this group so much and @Debbie_Hellman will be an amazing director. Congrats to @UVaLaw , Debbie, @lsolum , and everyone else involved. Can't wait to see all the great things the new center will do!

UVA Law School

@UVALaw

4 years

The new Center for Law & Philosophy at #UVALaw will highlight one of the nation’s strongest groups of legal theorists. @Debbie_Hellman @lsolum

0

11

50

0

17

Ben Eidelson

@beidelson

9 months

@StephenESachs 2) For any case that is published in the US Reports, the app will also grab that PDF from the Library of Congress, crop it, and generate a navigation menu for opinions in the case. The PDF will take advantage of the screen real estate you give it. (Same for SCOTUS slip opinions.)

1

0

16

Ben Eidelson

@beidelson

8 months

This is a great interview with @royeidelson (my dad) from @CBCNews about his great new book on the American Psychological Assn’s recent history of cooperation with the defense establishment at the expense of “do no harm” ethics:

Psychologists were complicit in torture during the war on terror, author claims | As It Happens...

Psychologist Roy Eidelson — author of Doing Harm: How the World’s Largest Psychological Association Lost Its Way in the War on Terror — tells As It Happens host Nil Köksal how his colleagues strayed...

www.cbc.ca

2

4

15

Ben Eidelson

@beidelson

9 months

@StephenESachs 3) Meanwhile, any web-based (Google Scholar or Caselaw Access) representation of the case will be reformatted & processed to remove junk ("L.Ed.2d," etc.), add interactive footnotes, nice justification, etc., and enable in-app links to other cases (or statutes in U.S.C).

1

15

Ben Eidelson

@beidelson

9 months

@StephenESachs P.S. I'm sure there are still kinks to work out, and the input data sources each have their own glitches. So like any good lawyer, of course I make no guarantees about anything. Full terms of use are posted at with the download link.

2

0

15

Ben Eidelson

@beidelson

4 years

This sounds great and is a terrific service to con law students and their teachers. Thanks @LeahLitman @kateashaw1 @ProfMMurray and @MelodyRowell !

0

1

15

Ben Eidelson

@beidelson

1 year

Characteristically menschy of @lsolum to expand the category rather than (heaven forbid) just promote his own work for once. And I can see already that his & @RandyEBarnett ’s paper will shape how I think about these cases& teach them this spring. So thanks, Larry, on both fronts!

Lawrence Solum

@lsolum

1 year

Downloads of the Week: (1) "Originalism after Dobbs, Bruen, and Kennedy" by Barnett & Solum, (2) "The Inco...

0

3

10

0

2

15

Ben Eidelson

@beidelson

9 months

@StephenESachs I hope you'll give it a try! Thanks to everyone who has been playing with it and making suggestions thus far. I'm not going to be working on this actively over the next couple weeks, but I look forward to reading & considering any suggestions or feedback sooner or later.

2

0

15

Ben Eidelson

@beidelson

3 years

By contrast, Mayorkas expressly made and explained a policy-based cost-benefit judgment, including “considering the impact his decision could have on border management and border communities, among other potential stakeholders.” 7/

1

0

14

Ben Eidelson

@beidelson

3 years

Yes, both cases are about whether the rescission of an immigration policy was adequately explained. But that's about the extent of the similarities. And it's hardly a reason to think they should rise or fall together as a matter of administrative law. 2/

1

3

14

Ben Eidelson

@beidelson

3 years

Maybe it would have been better lawyering to include the word “reliance” in the Mayorkas memo. But even that is debatable, b/c it’s not clear any “reliance” proper was at issue here, and the memo clearly reflected the policy-based weighing that was absent in the DACA case. 8/

2

1

13

Ben Eidelson

@beidelson

3 years

And I would still hope & maybe expect that document to pass muster, at least in terms of adequate explanation, for roughly the reasons given in Roberts' census opinion about deference to accountable decisionmakers. (Some will say that’s naïve, and they might be right.) 13/

1

13

Ben Eidelson

@beidelson

3 years

The closest analogy between the cases is the alleged failure to address "reliance interests." But it’s important to appreciate that, because the Duke memo rested on a claim of legal compulsion, it necessarily, openly, and completely failed to consider any such interests. 6/

1

13

Ben Eidelson

@beidelson

2 years

Is there any pair of fully articulated specifications of “positivism” and “originalism” such that whether originalism entails positivism isn’t trivial & obvious? If not (I think not), what is this raging debate about? I’m genuinely puzzled.

5

2

12

Ben Eidelson

@beidelson

3 years

One other important difference. After the DACA ruling, Trump did *not* rescind DACA again, because that was politically untenable. And that response showed why the Court’s accountability-forcing intervention was so important. 11/

1

12

Ben Eidelson

@beidelson

3 years

Whereas the Biden administration plainly rested its choice here on its vision of immigration policy, inviting political accountability for that choice. That makes this a fundamentally different case from the POV of the values served (or disserved) by rigorous judicial review. 10/

1

12

Ben Eidelson

@beidelson

1 year

This is a thought-provoking discussion of the etiquette of equality from @AgnesCallard and @robinhanson . And if it leaves you curious, my paper is available here: . (I may circle back to what I agree with & don't, but twitter is a tricky medium for that.)

Robin Hanson

@robinhanson

1 year

Another Minds Almost Meeting episode with @AgnesCallard : The Etiquette of Equality Website: YouTube:

2

8

2

11

Ben Eidelson

@beidelson

9 months

About 350 unique users of Case Viewer so far, and no known meltdowns (or nobody is telling me)! Thanks for trying it and especially to those who’ve shared ideas, or made voluntary contributions, or just shared enthusiasm or distributed the link ().

Ben Eidelson

@beidelson

9 months

So ... here's something different! Over the past couple months, I've been working on a macOS app called "Case Viewer." It's something I've wanted to have since law school—a fast, mostly frictionless tool for accessing & navigating the best available versions of judicial opinions.

12

61

385

1

10

Ben Eidelson

@beidelson

2 years

I can't recommend book highly enough for teaching—students are so engaged by it, treatments of hard issues are accessible but not dumbed-down, personal framing tees up very open conversations. And modest overrepresentation of @UMich faculty in every debate is forgivable :) (2/2)

1

0

10

Ben Eidelson

@beidelson

3 years

Does this mean @nikobowie will be a guest on @waitwait ?! (Also it’s great that this testimony is getting the wide audience it deserves)

@petersagal.bsky.social

@petersagal

3 years

As Twitter is aflame with commentary on SCOTUS, I want to re-up this testimony from the President's commission on Court Reform. It changed my thinking about SCOTUS's role in the Constitutional order more than anything else I've come across.

13

72

214

2

0

11

Ben Eidelson

@beidelson

9 months

@StephenESachs (Of course if you find it valuable and want to pitch in a few dollars, that's even better! And FWIW, I plan to donate > ½ of any income from this project to effective charities, after covering some modest development-related costs.)

2

0

10

Ben Eidelson

@beidelson

3 years

I watched this @scottjshapiro talk based on @AdHaque110 ’s recommendation and found it totally fascinating. I might even start observing #KelsenDay . Highly recommended!

Adil Haque

@AdHaque110

3 years

To celebrate #KelsenDay , I am once again sharing my favorite academic talk (starts around 39:00 minutes):

2

8

50

1

10

Ben Eidelson

@beidelson

2 years

@jordanlperkins Yeah, what do they think this is, a legal system?

0

9

Ben Eidelson

@beidelson

9 months

@StephenESachs 1) Press control + space from anywhere to open a unified, Spotlight-style search field, and get results sourced from Google Scholar, the Caselaw Access Project, the SCOTUS website, and more. (Or select text in a webpage or document and invoke Case Viewer as a macOS service.)

1

9

Ben Eidelson

@beidelson

5 years

Thank you! And thanks to @JennerBlockLLP for giving me the chance. As for the result, most of the credit should go to superb co-counsel at Jenner, @ACLU , @ACLU_DC , @adc , and @NILC .

1

2

9

Ben Eidelson

@beidelson

9 months

P.P.S. It doesn't have polished documentation, so, basically: (1) ctrl + space to launch query; (2) wait a couple seconds without pressing return if you want to be guaranteed options to choose among (i.e., you're feeling unlucky); (3) right-click the menu bar icon for settings

1

0

9

Ben Eidelson

@beidelson

2 years

Put differently, the "mouseholes" argument here should cut the opposite way of what the challengers (& some Justices) assume. They say, "Congress wouldn't have realized it was authorizing EPA to do a big thing via § 111(d), so it surely didn't mean to do that!" /11

1

9

Ben Eidelson

@beidelson

1 year

This new paper by @Debbie_Hellman is a terrific roadmap of thorny and open issues for theorists of anti-discrimination law—highly recommended!

Deborah Hellman

@Debbie_Hellman

1 year

My new paper, "Defining Disparate Treatment: A Research Agenda For Our Times," is now on ssrn: and forthcoming @IndianaLJ . It identifies 4 puzzles that make defining disparate treatment difficult. I'll be working on these. Proxy puzzle first. Join me!

4

15

69

0

5

9

Ben Eidelson

@beidelson

2 years

The starting point is: When you apply the major questions doctrine (MQD) to an interpretive choice, *as of when* do you assess majorness? The only coherent answer for a textualist, I think, is *as of enactment*. /2

3

0

9

Ben Eidelson

@beidelson

4 years

This would be a truly bizarre reading of the DACA decision. The Yoo analysis is unmoored to begin with, and the Trump gloss on it ("[it] gave me the right to do" healthcare?) is baffling. I explained what the Court actually held (& why it's right) here:

Axios

@axios

4 years

NEW: Trump and top White House officials are privately considering a controversial strategy to act without legal authority to enact new federal policies — starting with immigration, administration officials tell Axios.

338

2K

1K

0

3

8

Ben Eidelson

@beidelson

10 months

So now that the SFFA opinion is out, is the correct analysis of this hypo any clearer? (I don't think “assess the student as an individual, not based on the color of their skin,” is going to cut it ...)

Ben Eidelson

@beidelson

2 years

Here's a hypothetical and a 🧵 to highlight the incoherence of the position put forward by opponents of aff. action yesterday, and to tease out some broader implications. Suppose student S submits the essay below, and the admissions officer comes away more inclined to admit S.

1

4

32

0

1

8

Ben Eidelson

@beidelson

2 years

@Mark_Tushnet @lsolum @BlakeProf I think foisting new jargon on lawyers can be unhelpful & is fairly met with skepticism. But I also think it would be surprising if the modern study of linguistic communication in general cast no light on how language is used in legal contexts. (And these seem compatible to me.)

0

1

8

Ben Eidelson

@beidelson

2 years

@GovindPersad @CKonnoth It's a good Q and I haven't looked into EUA scheme enough. Could be 706(1) claim, or 706(2) if the "failure to act" can be cast as final, albeit time-limited. I agree path to fast relief wouldn't be clear. But well-founded allegation of illegality might still make FDA think 2x.

1

0

8

Ben Eidelson

@beidelson

3 years

And speaking of mistakes/inadequacies, it is still a working draft—so I would eagerly welcome comments/objections/suggestions. My email address is on the 1st page. Here's the link: . And the abstract is below:

1

8

Ben Eidelson

@beidelson

3 years

@Mark_Tushnet Haven’t read much of the report yet, but @nikobowie ’s thesis was “you should evaluate the proposals for reforming the Supreme Court by asking whether they will make the United States more democratic,” and the Commission does purport to do just that.

3

1

8