So their strategy now is to create the illusion of some genuine controversy, which doesn’t exist. What exist are a tiny handful of obscure journal articles by D-tier academic crackpots having a little mutual admiration society for the legal equivalent of flat earth theory. - ThreadSky

normative.bsky.social • 30 days ago

So their strategy now is to create the illusion of some genuine controversy, which doesn’t exist. What exist are a tiny handful of obscure journal articles by D-tier academic crackpots having a little mutual admiration society for the legal equivalent of flat earth theory.

Reposted from Lauren MacIvor Thompson

An entire "literature?"

LOL.

Comments

cplourde.bsky.social•30 days ago

John Eastman was disbarred for his literature, and here it's cited (without mention) as if it were the Western Cannon.

cplourde.bsky.social•30 days ago

Should be Canon, but my finger got stuck. ;-)

hundistauchmensch1.bsky.social•30 days ago

A well-funded gaggle of pseudo-scholars, no doubt, who rely for the persuasiveness of their scholarship on the hallowed principle that words don’t mean what they mean.

doug-holst.bsky.social•30 days ago

It’s Trumpism in a nutshell. My lie is as good as your truth. You’re not better than me.

ecoprairiepainter.bsky.social•30 days ago

And the more the fake “controversy” is brought up, the more legitimized they think it is. But it is in fact, fabricated data to support a blatant lie.

jtsmyth.bsky.social•30 days ago

I think it’s more akin to the sovereign citizen bullshit.

bigbrain1234.bsky.social•30 days ago

A thousand cuts. Each one and the wound gets bigger.

rowyourbot.bsky.social•30 days ago

What a time where we cannot trust SCOTUS to interpret the plain text of the constitution in a rational way, but instead must fear they’ll find some wacko made-up reason to overturn everything we have lived by for over a century and a half.

kgxvi.bsky.social•30 days ago

It’s been their strategy for two decades

elkmovie.bsky.social•30 days ago

There’s an entire literature around astrology too

dave11281947.bsky.social•30 days ago

I can't even find these D-tier articles. Where are they?

danbad23.bsky.social•30 days ago

Frankly, Wurman is right to feel highly embarrassed, for wiping his butt with the constitution. Gee, I wonder why Adolphus Orangeii and his army of bootlicking minions never have any shame?

unaha-closp.bsky.social•30 days ago

"now"? Hasn't this been the strategy of Claremont, etc. for decades?

victork1862.bsky.social•30 days ago

I call this "sovereign citizenry with a tie on"

shiblatown.bsky.social•30 days ago

It’s called shifting the overton window, which is all the rage don’t ya know? Yes, it’s by definition the opposite of “conservative”, but it’s also what brought us Heller. Indeed, every word you wrote applied to the con law establishment leading up to Heller.

billygreg.bsky.social•30 days ago

When you think about it, originalists are the flat earthers of the legal field.

bpross83.bsky.social•30 days ago

Except I can think of multiple examples on each side in which crackpot law articles turned into Supreme Court precedent. From articles about original meaning of the 2nd amendment to the non-delegation doctrine to articles about same sex marriage and equal production and trans rights. It's effective

slc-islesfan.bsky.social•30 days ago

Another one of the “but my unsupported opinion has as much value as your evidence” crowd.

turgidjacobian.bsky.social•30 days ago

May be a strategy to this: throw out an unworkable EO, litigate it unseriously. Equally mendacious C tier scholars now work it. Then Thomas throws out a strategy he thinks gets 4. B tier scholars and better draftsmen suggest fixes. Terrible (but skilled) circuit judges write for SCOTUS...

turgidjacobian.bsky.social•30 days ago

The legal equivalent of the wingnut Wurlitzer

metrochimp.bsky.social•30 days ago

When will someone in the Democratic leadership stand up and say THIS IS ALL FUCKING STUPID?!?! The judge in the case did the judicial version of exactly what I say here; why are there no Dems besides AOC, Jasmine Crockett, and my governor of Illinois doing the same thing?!?!

lurks-no-more.bsky.social•30 days ago

How can something that's in the US Constitution be held unconstitutional anyway?

barryd.bsky.social•29 days ago

The Federalist Society was *made* for just that.

daralind.bsky.social•30 days ago

I feel like dude’s dismay should be directed at the litigators who filed a 3-page brief that did not even hint at the existence of this supposedly respectable literature but 🙃

normative.bsky.social•30 days ago

Call this the Discovery Institute strategy. You can scrape together half a dozen fundamentalists with some kind of credential to host a little symposium on how evolution is fake, Earth is 6,000 years old, and cavemen rode T-Rexes. Voila, a “literature”. But it’s not a serious scentific debate.

dredecopp.bsky.social•29 days ago

Sounds suspiciously like the climate change "debate". And if you dig into the 1% of climate scientists who "question" it, you'll find funding from fossil fuel companies.

brokenelm.bsky.social•30 days ago

This point on so so many things.

compliancedivision.bsky.social•30 days ago

Doesn't Rufo have a Discovery Institute connection?

normative.bsky.social•30 days ago

He’s Manhattan Institute. Discovery is pretty hyperfocused on faking the appearance of scientific disagreement over whether evolution is a thing.

avicenna2000.bsky.social•30 days ago

"Christopher Rufo is former director of the Discovery Institute's Center on Wealth & Poverty"
https://www.discovery.org/p/rufo/

normative.bsky.social•30 days ago

Oh huh. No idea they’d branched out.

compliancedivision.bsky.social•30 days ago

I live close to Dover Area School District. Everyone here remembers Discovery.

archstreet.bsky.social•30 days ago

“The Divine Right of Kings: A New Perspective”

perplexed.bsky.social•30 days ago

"In recent decades, it has been trendy among the liberal elite to suggest or even assume that the divine right theory of kingship is flawed or even wrong. In this Originalist review of contemporary documents, we show that—"

danhicks.bsky.social•30 days ago

Oh this strategy predates DI by decades. The Pioneer Fund was created in 1937 to do this with eugenics and race science.

jvagle.me•30 days ago

See also the mountain of literature that came out of the Ethyl Corporation that government regulators took as gospel for the premise that lead wasn’t dangerous enough to be regulated.

metrochimp.bsky.social•30 days ago

Alito, Thomas, and Kavanaugh: This is a good legal reasoning.

Gorsuch: I'm like 90% convinced. Tell me more.

Roberts: How can we rule so this reinforces how great a legalist I am?

Barrett: I have red lines but I'm pretty sure this isn't one.

Sotomayor, Jackson and Kagan: DRINK!!!!

normative.bsky.social•30 days ago

The point of the exercise is not to convince other scholars, who correctly laugh this stuff off. It’s to create a Potemkin dispute that gives political actors cover to demand the “controversy” be taught as though these were equivalently legitimate sides in some pitched, live debate.

archstreet.bsky.social•30 days ago

Welcome to climate change policy

aryafairywren.bsky.social•30 days ago

And the transgender issues "debate"!

normative.bsky.social•30 days ago

This is paradoxically a little easier to do in an area where there’s an overwhelming consensus, because most legal academics don’t find it either interesting or professionally beneficial to churn out articles saying “the view everyone’s considered obviously right for 130 years is still correct”

wndlb.bsky.social•30 days ago

A few words, guys:
Eastman and “independent state legislatures”

They’ve put on this rodeo before.

jvagle.me•30 days ago

(and the legal academy’s publication framework plays into this)

amdiamanti.bsky.social•30 days ago

It’s also easier in an environment where SCOTUS has issued several decisions now demonstrating that even the most fundamental principles of law can be tossed aside in a naked power grab. So who now has authority to say that being the obviously correct answer for 130 years means anything anymore?

kdbyproxy.bsky.social•30 days ago

Indeed, until now, rather like this day in the life of Ralph Melish.

#birthright #14A
https://bsky.app/profile/normative.bsky.social/post/3lghkiaopmc2z

normative.bsky.social•30 days ago

So if 3 crackpots write articles staking out a super fringe view, maybe only a couple academics with the view 99% of the field holds bother responding. There are real, therefore more interesting, controversies to work on. But from the outside it might look like these are evenly matched sides.

normative.bsky.social•30 days ago

As John notes, it’s also a little easier to manufacture the appearance of live controversy in legal academia than the sciences, where the gatekeepers even at the real journals are 22-year-old students. https://bsky.app/profile/johnpfaff.bsky.social/post/3lghjw4cca224

kovarsky.bsky.social•30 days ago

Genuine Q - my initial read is that the theory is idiotic, but is the suggestion that Rogers Smith and Peter Shuck are crackpots? Or are we talking about people who ran with the theory to suggest that it can. be done on less than congressional authorization?

merz.bsky.social•30 days ago

https://math.ucr.edu/home/baez/crackpot.html

fitzcamel.bsky.social•30 days ago

Schuck and Smith are serious but wrong. Beyond them and maybe one or two others….

amtappeals.bsky.social•30 days ago

Does one book a “whole literature” make?

kovarsky.bsky.social•30 days ago

I was just responding to someone upthread who seemed to suggest that everyone making the argument was a crackpot. And Smith and Schuck I don't think are within a million miles of crackpot. And I intensely disagree with the argument!

thirdreconst.bsky.social•30 days ago

The problem is that the legal academy doesn't stand up for the truth or the profession. Everyone agrees its laughable, but no one is standing up to laugh the bozos out of polite society. No one is submitting disbarment filings. There is no punishment of this behavior, and so it continues unabated.

normative.bsky.social•30 days ago

Well, I don’t think anyone should be disbarred for getting a sloppy journal article with a kooky premise past a couple student editors. I just think courts need to exercise due skepticism about “everything you know is wrong” claims made in student-edited journals.

thirdreconst.bsky.social•30 days ago

No, but I agree with Judge Coughenour that the authors of the EO and its defenders in court should be sweating. I was speaking about the wider pattern of behavior we've been seeing from conservative movement lawyers the last few years, and the EO case.

thirdreconst.bsky.social•30 days ago

Hell, not even the last few years. The fact that John Yoo still has a license is an indictment of the profession. Ed Meese, John Ashcroft, Alberto Gonzales, David Addington, John Rizzo. Giuliani only lost his license in July 2024.

dlaw51.bsky.social•30 days ago

But watch Times and WaPo “cover the debate”. “The 14th Amendment guarantees citizenship as a birthright? Maybe not, say some legal scholars,”

ironbound.bsky.social•30 days ago

And to give Alito and Thomas something to cite to

archpundit.bsky.social•30 days ago

Also the Discovery Institute had their defense/intl relations wings that they used to parlay into credibility. I had a reporter tell me they were serious because of that work.

just-ric.bsky.social•30 days ago

I believe you just described fundamental Christianity.

appealofwords.bsky.social•30 days ago

It's the "he shouldn't have allowed such an expedited hearing" line that made my eyes roll so hard it fixed my astigmatism. It's a TRO, dude.

ssvb.bsky.social•29 days ago

And here I am finding it highly embarrassing for someone to take a clearly constitutional issue and pretend it is negotiable.

mikemillennial.bsky.social•30 days ago

They appointed unqualified people in Trump’s last term who forever more will maintain their bestowed title on Fox News as qualified experts.

robvander.bsky.social•29 days ago

@skyview.social unroll

napoleon-the-pig.bsky.social•30 days ago

That is exactly what they have done in the past, for some time actually. As I saw George Conway say yesterday bullshit with footnotes is still bullshit.

omnisceint.bsky.social•30 days ago

This reminds me of all the scientists paid by ExxonMobil that denied Climate Change.

cathy.bsky.social•30 days ago

And that cigarettes killed smokers

rundog.bsky.social•30 days ago

they don't

justafrenchcat.bsky.social•30 days ago

All it takes unfortunately is for Sammy Alito to find a XVIIth c witch hunter with vaguely similar opinion.

orobharris.bsky.social•29 days ago

This is why there was such a mismatch between the lack of Trump success in court challenging the 2020 election results and what his supporters thought courts would do. Which then lead to the claim of “Lawfare”

cullen59.bsky.social•30 days ago

That literature is in a number of places:

1) various reddit forums.

2) the Collected Writings of Mencius Moldbug

3) in a growing number of 4Chan posts.

foxbat.gay•30 days ago

Moldbug is just Curtis Yarvin. He's been out of the closet for years. No more meaningful reason to use a pseudonym when proposing that the enlightenment was a mistake and what we need is a dark age, but the tech bros should be Jarls.

mathewlowry.bsky.social•30 days ago

This is standard media strategy for this sort of "alt fact" political movement. It worked for Leave in Brexit, it works for climate change denial, and it works for whatever is happening in the US this week.

(URL in the ALT.)

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