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Dilan Esper Profile picture
Dilan Esper
@dilanesper
Litigator, attorney, appeals, entertainment
3 subscribers
Oct 25 • 15 tweets • 3 min read
I am going to once again say, this is BS, people are scaring you, a lot of commentators claim the legal system and the parties and the voters will allow things that are actually impossible, and repeating these claims is highly irresponsible. There's no third term. See this thread.

Oct 24 • 7 tweets • 2 min read
i mentioned awhile ago how i think the second Trump term has completely refuted the unitary executive theory. Media regulation is a PERFECT example. You want antitrust regulations of media mergers, and the President CAN'T be allowed to run them. I know people claim the Constitution requires the President have personal control of everything in the executive branch but the text of the Constitution says no such thing. ALL it says is the executive power vests in the President, which is entirely vague.
Oct 20 • 14 tweets • 3 min read
I think this has to be taken on directly. "Genocide scholars" have entirely discredited themselves over the past 2+ years over Israel and academics need to understand this because it is directly tied to why the public no longer trusts them. There are very few people on the far left in society. But there has long been a concentration of such people in academia. There were lots of Marxist professors way back when William F. Buckley complained about Yale right after World War II. That isn't new.
Oct 18 • 10 tweets • 2 min read
I think both parties, given their druthers, will do culture war stuff rather than governance, and with today being No Kings day (and given President Trump's love of the culture war), I might tell a story that shows how deep the rot in our politics goes. It's bipartisan. In 2024, the California legislature passed, and Gavin Newsom signed, this law that takes effect in 2026 and effectively bans any California high schools from having Native American mascots.

actionnewsnow.com/news/a-new-cal…
Oct 18 • 35 tweets • 6 min read
Inspired by a recent @whignewtons podcast, I want to talk about a part of the "conversion therapy" case that I think legal conservatives have been way too dismissive of-- professional speech.

To tee this up, let's talk about my profession, lawyers. We write and talk for a living There are all sorts of restrictions on the content of lawyers' speech. In a couple of areas, we get some First Amendment protection, though less than ordinary people get. In other areas, nobody even thinks the First Amendment applies to our speech.
Sep 28 • 22 tweets • 4 min read
The "concert tickets are too expensive" discourse, for some reason, has really stuck in my craw for the last couple of days.

People really have to come to grips with what living in a prosperous society means. It means there's more disposable income chasing limited quantities. The reason why you could see Sinatra for $5 in a lounge in Vegas in the late 1950's (as you could) is (1) a lot of Americans couldn't afford to travel to Vegas, and (2) it wasn't easy for most Americans to get there. For many, a "vacation" meant a park or beach 20 miles away.
Sep 19 • 5 tweets • 1 min read
this. all of it.

I was arguing earlier today with one of these left leaning types who thinks America is teeming with white supremacists. No, we aren't. This is, for all of our laws, still a great country, based on Enlightenment values. some people online in the Discourse either (1) have personality disorders that cause them to massively overstate areas where we fall short or (2) think lying and deliberately overstating America's problems will serve their goals.
Sep 8 • 6 tweets • 2 min read
BTW, this whole thing with Bivens shows you why hard core originalism, with no regard for pragmatism, is such a bad judicial philosophy.

There's no text in the Constitution prohibiting a Bivens remedy. Both sides of the debate are making up the law on this. The originalists are just saying there's this implied rule against courts implying causes of action, because that's part of the Article I "legislative" power. It's all by implication, not clear in the text, and yet the Court's conservatives treat this as some unbreakable rule.
Sep 8 • 7 tweets • 2 min read
This morning is probably the first day many people will learn that for almost 50 years, going back to US v. Martinez-Fuerte, 428 U.S. 543 (1976), SCOTUS has allowed racial profiling by immigration officers.

It was shameful then, and it is shameful it is still good law. Michael Kinsley used to say the scandal in Washington isn't what's illegal, but what's legal. I actually think this morning's order is rightly decided under the controlling precedents.

The problem is those precedents.
Sep 7 • 15 tweets • 3 min read
This isn't actually intersectionality (an overused term) because it's not due to the intersection of identities, but I think the conclusion is somewhat right if the reasoning is wrong.

What has happened is the American left has celebrated anarchy/rulebreaking since the 1960's A lot of traditional socialist ideas were based on the notion of COMMUNITARIANISM-- that we were in this together, we had obligations to each other, we needed to build a high trust society.

In contrast, the right was more INDIVIDUALISTIC. Think about, e.g., gun rights rhetoric.
Sep 6 • 14 tweets • 3 min read
Folks, some of the reactions to my thread on shooting the innocent North Korean fisherman seem to be based on a misconception that the only thing that matters is the safety of US spies.

But that's completely antithetical to hundreds of years of customary law on espionage. When a country sends spies into another country, they are unlawful combatants. Indeed, they are almost the paradigm of what an unlawful combatant is. They are violating the host nation's sovereignty. They are not wearing identifiable insignia. They are often committing sabotage.
Sep 5 • 18 tweets • 3 min read
A reader asked Matt Yglesias this morning "why did the outsider nerds in DOGE fail while the outsider nerds in baseball succeeded?".

Matt gave a good answer about the backgrounds of the baseball nerds, but there's something about the whole "Moneyball" story that's a bit toxic. The Moneyball story is essentially that baseball managers and front offices had made bad decisions for years, and some baseball fans who were also brilliant statisticians came in with their disruptive paradigm and turned out to be right about all this stuff the insiders got wrong
Sep 2 • 8 tweets • 2 min read
This deserves a thread.

Imagine if on September 12, 2001, Osama Bin Laden announced that if we don't go into Afghanistan to get the perpetrators, he would sign a binding pledge not to attack America again.

Should Bush have taken that offer? Or imagine if on December 8, 1941, Emperor Hirohito announces that Japan will ensure the safety of the US' Pacific territories if we agree to take no action in response to the bombing of Pearl Harbor. Should FDR accept?
Sep 2 • 8 tweets • 2 min read
Two things that do a lot of work in the mind of Palestinian Cause types are (1) they think all Israeli Jews are far-right religious types who want to kill or remove all the Arabs and (2) they don't really believe Israel has a democratic culture where public opinion counts. So I am getting a bunch of replies from them saying "no way would the war end if Hamas released the hostages. Israel would just go in and drive all the Gazans out or kill them".

But of course, in the real world Israel IS a democracy and public opinion counts there.
Aug 27 • 16 tweets • 3 min read
A quick thread about something bothering me about l'affaire Lisa Cook. Which is, the type of mortgage fraud she is accused of is common, and rarely gets prosecuted. And it's a type of crime-- involving the ways rich people get privileges the rest of us don't-- that should be. So what is it that Cook is accused of? Well, when you buy a home and take out a mortgage, the bank will ask you if it is your primary residence. The reason for this is the actuarial risk is lower-- buyers are much less likely to default on the loan on their primary home.
Aug 21 • 13 tweets • 3 min read
Thing that annoys me, inspired by Matt Yglesias' column this morning.

I went to Hong Kong just before the handover, in May 1997. I spent a lot of money to go- it was a lot more expensive then.

I did it because I knew China was a Communist tyranny and would ruin it. I was telling everyone who would listen back then that China was obviously the modern Nazi Germany and all the claims about how free trade would democratize them were BS seeded and spread by folks who had vast sums of money they wanted to make.
Aug 18 • 25 tweets • 5 min read
It's late at night (not where Claire is, of course), and it might be worth exploring this hypothetical and what it really tells you about pro-lifers and pro-choicers, religious types and secular types.

So first, I'll state the obvious, you of course save the baby. Why? Well, I'm going to state something at the beginning that's going to surprise you-- it's not because human life doesn't begin at conception, although that question is more complicated than pro lifers say it is. (There's an identical twins hypothetical that gets at that.)
Aug 17 • 5 tweets • 1 min read
instead of stopping participation in the marriage to browbeat her into having sex with you, you could consider... discreetly cheating?

to me this scenario is just the classic example of how once matched sex drives become mismatched, which is sooooooo common. because of all the cultural presumptions around monogamy and the claims that it is the natural state of things, people assume that it is natural for two human beings to live out their lives having perfectly coordinated and synchronized sex drives the entire time.
Aug 16 • 8 tweets • 2 min read
I will tell you, being ratio'd by the people who.... um.... passionately oppose trans women's participation in sports, and reading their responses, certainly didn't convince me that they just passionately care about c i s women and hold no prejudices against trans folks. I'll just pick one particular line of response-- at least 30 people (5% or so of all responses) responded by saying trans people are mentally ill and we shouldn't cater to their delusions.

And I'm sorry, but people who say that, say that with glee. They mean it as an insult.
Aug 11 • 28 tweets • 5 min read
"Why can't we just have one binational state in Israel-Palestine? Jews and Palestinians can live together!"

Well, no, we can't. For all sorts of reasons. A thread. First, how exactly is this going to work? I remember Matt Yglesias doing a podcast with Robert Wright, who is a big one-stater. And Yglesias made a clever point. He said all the organizations that support 2 state solutions have extensive and detailed plans about how it will work.
Aug 5 • 19 tweets • 4 min read
The stories about ICE abuses are a good jumping off point to talk about something that I think low key is one of the worst things the legal conservative movement has done-- eviscerate the Bivens doctrine for suing federal officials who violate the Constitution. Bivens is named for Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, a 6-3 decision of the early Burger Court, basically from the same era as Roe v. Wade.

Bivens held that innocent people could sue federal agents for violating the 4th Amendment in a search.