One thing that I really like about traditional legal scholarship is that it asks the writer to deal with legal issues in the abstract.

That helps to ensure that legal principles and generalized analysis drive conclusions rather than just situational facts.
That's why, when it comes to the hot topic of the day, I am always eager to read the opinions from legal scholars who wrote about the issue before it became enmeshed with present-day politics
They are less likely to let the situation in which the issue arose affect their analysis
That's certainly not always possible. Some topics are just too obscure to have warranted the time and effort that is required to write traditional legal scholarship. (Hello, GSA ascertainment!!)

But for plenty of other topics there's at least a law review article or two.
Experts who want to participate in public discourse can feel incredibly frustrated when the discourse is dominated by those who know even less. (The tendency of news networks to hire former prosecutors as experts on basically all legal matters can be particularly galling.)
And as @danepps pointed out to me recently, some scholars probably err too much in the other direction--failing to participate in public discourse when they actually have a lot of subject matter expertise out of fear that they might inadvertently say something wrong.
But I continue to believe that law professors need to do the hard work that comes with traditional scholarship *before* they write the high profile op eds or give the national news interviews.
If we don't, then we run the risk of giving partisan opinions, rather than legal ones.
(Tagging in @espinsegall so he can tell me why I'm wrong! 😉)

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More from @CBHessick

29 Nov
The President is on Fox News right now saying that maybe the FBI and the Department of Justice were involved in the supposed election fraud in the 2020 election.

When will this nightmare end?
Update: He says "people keep asking" DOJ whether they are looking into all of the fraud allegations, and they have been told "yes, we are looking"
But "no one" has told him that they've arrested anyone who has done anything wrong.
Now Trump's asking why DOJ still hasn't done anything to prosecute Jim Comey, Andrew McCabe, and John Brennan.

I'm no fan of Bill Barr's, but this bizarre interview suggests that he has been resisting an awful lot of pressure from this president to persecute political enemies.
Read 4 tweets
28 Nov
It’s really hard to turn down interviews from national media outlets. But I think those of us who are being interviewed because of our expertise have a professional obligation not to give those interviews when the topic is outside our area of expertise.
And when I say “it’s hard,” I mean it really sucks. And I haven’t been perfect on this front.

But I feel a bit better when I give the reporter/producer the name of someone who *is* an expert—especially if that person is more junior & doesn’t always get a lot of recognition.
Even that isn’t always enough to make me feel better, so I’ll tell the reporter to tell the other person I recommended them.

“Seriously, use my name,” I’ll say.

It lets the person know I value them. And it also lets me tell *someone* that I gave up a chance at the spotlight.
Read 4 tweets
13 Nov
Fascinating @rachelweinerwp article about the court battles of a judge in Alexandria who is being sued by both the local prosecutor and the local public defender.…
The judge and the local prosecutor @parisa4justice are clashing, in part, because VA gives prosecutors less control over charging decisions than a lot of other states. For many crimes, police make charging decisions, and prosecutors have to move to dismiss.
A bill was introduced in the VA legislature that would have changed this arrangement, giving VA prosecutors more power to dismiss charges without having a judge weigh in.

It looks like that legislation stalled. Do folks in VA know more?…
Read 7 tweets
12 Oct
At today's Supreme Court confirmation hearing, we will be told that judges are not supposed to make policy decisions.
That statement is entirely false.
The people who wrote our Constitution expected judges to make policy decisions, and that's what they did for a long time. ImageImage
In the years before and after the Constitution was ratified, judges and non-judges alike had no doubt that judges could make policy. This was the whole idea behind the "common law" that they had brought with them in England. Judges even had the power to create new crimes. ImageImageImage
The power of judges to set policy came under attack when partisan battles between the Federalists and the Democrats began to play out in federal court prosecutions for common law crimes. Once the Federalists lost their hold on the courts, the Court curtailed that power. ImageImage
Read 7 tweets
21 Sep
If your criticism about a potential Supreme Court nominee is her religion, can I kindly suggest that you look in the mirror and think about when you decided that religious discrimination is okay.
To all the folks in my mentions telling me that it’s just one *type* of Catholicism that you think makes someone unfit for office/likely to impose her religious views on others—-that’s still religious discrimination.
The replies to this are making my stomach churn. But I’ll give it one last shot for those who are insisting that Coney Barrett’s kingdom of god quote means she will force her religion on others.

Have you heard religious people talk about their faith before?
Read 5 tweets
28 Aug
The Trump/Pence "law and order" campaign argument is based on a claim that Democrats support rioters or are at least unwilling to do much about them.

But there's actually a big split among folks on the left about whether to cut police budgets and how to respond to violence.
There are some elected officials, like people on city councils in Minneapolis and Seattle, who want to cut police funding.

But other Democratic officials--including Biden and Congressional leadership--who have repeatedly said they oppose those efforts.
There are also divisions within local governments on these issues. For example, earlier this week the Seattle mayor vetoed the city council's budget, which had included significant cuts to the Seattle PDs budget.
Read 11 tweets

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