Dan Epps
@epps.bsky.social
Howard and Caroline Cayne Distinguished Professor of Law, WUSTL. Con law 📜, crim law/pro 👮, SCOTUSology 🏛. Cohost 🎤 @dividedargument.bsky.social.
Reposted by Dan Epps
The entire thread is worth your time. The portion around and including this post gets at a point I tried to make in my book - the less common ground within the profession about what the rule of law entails, the less likely we are to be able to sustain the rule of law.
That's why I don't like the rise of two separate legal-ideological bubbles. If conservatives only talk to other conservatives, and feel no need to take seriously any arguments on the other side—things go badly. And we're a way down that slippery slope.
January 7, 2026 at 8:49 PM
The entire thread is worth your time. The portion around and including this post gets at a point I tried to make in my book - the less common ground within the profession about what the rule of law entails, the less likely we are to be able to sustain the rule of law.
Regardless of one's view of politics, is it a better world if courts declare—even in ordinary breach-of-contract cases—that "Plaintiff wins because he's a Dem" (or R based on who appointed the judge)? Even if you dislike judicial review, we need courts for ordinary disputes. We need law for those.
I mean this with no disrespect, but law = politics is only a bad thing if you have a really dour view of politics. This is one reason why legal liberals reject this notion or anything like it, and I think that’s too bad.
Because if we stop doing that—if we just all shout that law is nothing more than politics—doesn't that just abandon even the possibility of living in a society governed by the rule of law? I think the need to make legal arguments still provides some limited check—
January 7, 2026 at 8:02 PM
Regardless of one's view of politics, is it a better world if courts declare—even in ordinary breach-of-contract cases—that "Plaintiff wins because he's a Dem" (or R based on who appointed the judge)? Even if you dislike judicial review, we need courts for ordinary disputes. We need law for those.
Pretty sure I'm one of the folks Mark's subtweeting. While I don’t feel compelled to respond, this actually provides a beautiful lesson for how academics and other serious observers might think about engaging with the Court and law. (thread)
There's a rising faction of the legal academy that stays quiet when their MAGAdemic colleagues produce fraudulent psuedo-scholarship in service to the cruelest aspects of Trump's agenda ... then leap in to police the discourse when their progressive colleagues criticize those MAGAdemics too bluntly.
January 7, 2026 at 5:50 PM
Pretty sure I'm one of the folks Mark's subtweeting. While I don’t feel compelled to respond, this actually provides a beautiful lesson for how academics and other serious observers might think about engaging with the Court and law. (thread)
I was not tagged so did not see my thread was screenshot-ported here from X until now. I'd add that I don't think profs (or any lawyers) should advance arguments they believe to be dishonest. But I also think. . . .
Genuinely curious about what profs think about this. I don’t think holding lawyers accountable for their clients views is ok. But academics are different. We have a duty to be intellectually honest, and I think advocating for positions that our expertise rejects abandons the scholarly mission.
January 4, 2026 at 10:22 PM
I was not tagged so did not see my thread was screenshot-ported here from X until now. I'd add that I don't think profs (or any lawyers) should advance arguments they believe to be dishonest. But I also think. . . .
I'm quoted in this @wsj.com story about what to call SCOTUS's interim/shadow/emergency/whatever docket: www.wsj.com/us-news/law/...
December 28, 2025 at 8:28 PM
I'm quoted in this @wsj.com story about what to call SCOTUS's interim/shadow/emergency/whatever docket: www.wsj.com/us-news/law/...
A follow-up on Justice Kavanaugh's concurrence in Trump v. IL over at @scotusblog.com: www.scotusblog.com/interim-dock...
Interim Docket Blog
www.scotusblog.com
December 26, 2025 at 6:57 PM
A follow-up on Justice Kavanaugh's concurrence in Trump v. IL over at @scotusblog.com: www.scotusblog.com/interim-dock...
Quick reactions to the National Guard ruling at the @SCOTUSblog Interim Docket blog: www.scotusblog.com/interim-dock...
Interim Docket Blog
www.scotusblog.com
December 24, 2025 at 12:48 AM
Quick reactions to the National Guard ruling at the @SCOTUSblog Interim Docket blog: www.scotusblog.com/interim-dock...
This is not a remotely fair characterization of what I or Jack said. Fact-free caricatures are good for RTs and clicks from co-partisans, but critics of the Court (of which I am often one!) do their cause no service when they don't even pretend to engage on the merits with different views.
Really great piece. It's pretty revealing that the strongest defense of the term "interim docket" to describe the shadow docket is basically: Yeah, we know it's not descriptively accurate in a lot of cases, but we're annoyed by people who say "shadow docket."
That's not even an argument!
That's not even an argument!
Today's "One First" explains why the "Annie Hall problem" (the idea that critics will never be satisfied by anything the subject of their criticism does) is an especially inapt charge against those who are independently critical of both *what* #SCOTUS is doing in its rulings and *how* it's doing it:
December 19, 2025 at 7:15 PM
This is not a remotely fair characterization of what I or Jack said. Fact-free caricatures are good for RTs and clicks from co-partisans, but critics of the Court (of which I am often one!) do their cause no service when they don't even pretend to engage on the merits with different views.
Paging @stephenesachs.bsky.social
Rubio focuses on fonts, Duffy focuses on airport pull-ups, Hegseth focuses on paintings, Noem focuses on photo-ops, and Trump focuses on ballrooms and bathrooms ...
Shouldn’t they have other things to do? www.ms.now/rachel-maddo...
Shouldn’t they have other things to do? www.ms.now/rachel-maddo...
As Cabinet secretaries prioritize distractions and trivialities, Rubio focuses on fonts
As the nation’s chief diplomat turns his attention to typefaces, it’s hard not to wonder: Doesn’t he have better things to do?
www.ms.now
December 11, 2025 at 6:14 PM
Paging @stephenesachs.bsky.social
Steve, can clarify whom specifically you are accusing of "deliberately misleading" people?
Maybe this new blog can respond, in one of its first posts, to the argument that the term “interim docket” is a deliberately misleading attempt to minimize the (very permanent) doctrinal and real-world consequences of #SCOTUS’s rulings on emergency applications?
www.stevevladeck.com/p/177-the-no...
www.stevevladeck.com/p/177-the-no...
December 11, 2025 at 5:47 PM
Steve, can clarify whom specifically you are accusing of "deliberately misleading" people?
Reposted by Dan Epps
Today seems as good a time as any to note my extended discussion of SCOTUS expansion here: papers.ssrn.com/sol3/papers....
Also, @epps.bsky.social and @ganeshsitaraman.bsky.social specifically propose a lottery along @mmasnick.bsky.social's lines here: yalelawjournal.org/pdf/EppsSita...
Also, @epps.bsky.social and @ganeshsitaraman.bsky.social specifically propose a lottery along @mmasnick.bsky.social's lines here: yalelawjournal.org/pdf/EppsSita...
December 8, 2025 at 6:40 PM
Today seems as good a time as any to note my extended discussion of SCOTUS expansion here: papers.ssrn.com/sol3/papers....
Also, @epps.bsky.social and @ganeshsitaraman.bsky.social specifically propose a lottery along @mmasnick.bsky.social's lines here: yalelawjournal.org/pdf/EppsSita...
Also, @epps.bsky.social and @ganeshsitaraman.bsky.social specifically propose a lottery along @mmasnick.bsky.social's lines here: yalelawjournal.org/pdf/EppsSita...
In case anyone is curious: even if this dismissal becomes final/upheld on appeal, because the dismissal is w/o prejudice, the government will have 6 months to reindict even though the statute of limitations would have otherwise run. Statute:
November 24, 2025 at 5:53 PM
In case anyone is curious: even if this dismissal becomes final/upheld on appeal, because the dismissal is w/o prejudice, the government will have 6 months to reindict even though the statute of limitations would have otherwise run. Statute:
Reposted by Dan Epps
NEW EPISODE: "Counter-Counter-Counter-Designations"
Live from Wilkinson Stekloff's attorney retreat, we dive into the legal (and ethical?) issues in Coney Island Auto Parts Unlimited v. Burton before revisiting last Term's DIG'd case LabCorp v. Davis.
dividedargument.simplecast.com/episodes/cou...
Live from Wilkinson Stekloff's attorney retreat, we dive into the legal (and ethical?) issues in Coney Island Auto Parts Unlimited v. Burton before revisiting last Term's DIG'd case LabCorp v. Davis.
dividedargument.simplecast.com/episodes/cou...
Counter-Counter-Counter-Designations | Divided Argument
Will and Dan record a rare live show in an unusual venue: the Salamander Resort in Middleburg, Virginia, at the annual attorney retreat for trial boutique Wilkinson Stekloff. Dan teaches Will some of ...
dividedargument.simplecast.com
November 20, 2025 at 5:03 PM
NEW EPISODE: "Counter-Counter-Counter-Designations"
Live from Wilkinson Stekloff's attorney retreat, we dive into the legal (and ethical?) issues in Coney Island Auto Parts Unlimited v. Burton before revisiting last Term's DIG'd case LabCorp v. Davis.
dividedargument.simplecast.com/episodes/cou...
Live from Wilkinson Stekloff's attorney retreat, we dive into the legal (and ethical?) issues in Coney Island Auto Parts Unlimited v. Burton before revisiting last Term's DIG'd case LabCorp v. Davis.
dividedargument.simplecast.com/episodes/cou...
Reposted by Dan Epps
I'm quoted in this @nytimes.com piece by @jodikantor.bsky.social about the quandaries faced by the liberal SCOTUS justices today. (link below).
October 31, 2025 at 5:30 PM
I'm quoted in this @nytimes.com piece by @jodikantor.bsky.social about the quandaries faced by the liberal SCOTUS justices today. (link below).
I'm quoted in this @nytimes.com piece by @jodikantor.bsky.social about the quandaries faced by the liberal SCOTUS justices today. (link below).
October 31, 2025 at 5:30 PM
I'm quoted in this @nytimes.com piece by @jodikantor.bsky.social about the quandaries faced by the liberal SCOTUS justices today. (link below).
Just got my copy of Justice Kennedy’s memoir, LIFE, LAW & LIBERTY. I was grateful to have been asked to perform an unusual bit of empirical research while he was writing it.
October 20, 2025 at 1:02 PM
Just got my copy of Justice Kennedy’s memoir, LIFE, LAW & LIBERTY. I was grateful to have been asked to perform an unusual bit of empirical research while he was writing it.
This @rollingstone.com piece by @andrewlseidel.bsky.social is embarrassing. A judge must recuse from any case in which he actually participated, not from all cases involving *legal issues* on which he ever took a position as an attorney on behalf of a client.
Brett Kavanaugh has a clear conflict in a school prayer case.
Will he recuse himself?
The conservative justice could be in a position to overturn a Supreme Court ruling in a case he lost as a private attorney.
Read: www.rollingstone.com/politics/pol...
Will he recuse himself?
The conservative justice could be in a position to overturn a Supreme Court ruling in a case he lost as a private attorney.
Read: www.rollingstone.com/politics/pol...
September 22, 2025 at 4:38 PM
This @rollingstone.com piece by @andrewlseidel.bsky.social is embarrassing. A judge must recuse from any case in which he actually participated, not from all cases involving *legal issues* on which he ever took a position as an attorney on behalf of a client.
Reposted by Dan Epps
Losing my ever-loving-mind watching the same people who were just clutching their pearls claiming censorship over mean emails from WH staffers to Twitter about COVID misinfo are now HAVING THE FCC CHAIR openly threaten broadcast licenses over a joke about the president AND THE BROADCASTERS CENSOR IT
September 18, 2025 at 1:06 PM
Losing my ever-loving-mind watching the same people who were just clutching their pearls claiming censorship over mean emails from WH staffers to Twitter about COVID misinfo are now HAVING THE FCC CHAIR openly threaten broadcast licenses over a joke about the president AND THE BROADCASTERS CENSOR IT
I'm thrilled to have been named the Howard and Caroline Cayne Distinguished Professor of law here at WashU Law! I'm very grateful to the Law School, the University, and my Dean for their support.
September 17, 2025 at 4:47 PM
I'm thrilled to have been named the Howard and Caroline Cayne Distinguished Professor of law here at WashU Law! I'm very grateful to the Law School, the University, and my Dean for their support.
Reposted by Dan Epps
www.insidehighered.com/news/faculty...
The free speech crusade will continue until complete conformity and submission are achieved.
The free speech crusade will continue until complete conformity and submission are achieved.
5 More Faculty, Staff Removed for Kirk Comments
Republican politicians and other conservatives are calling for employees, including those in higher ed, to be terminated for their social media posts about Kirk's killing.
www.insidehighered.com
September 15, 2025 at 11:03 AM
www.insidehighered.com/news/faculty...
The free speech crusade will continue until complete conformity and submission are achieved.
The free speech crusade will continue until complete conformity and submission are achieved.
Reposted by Dan Epps
Case Viewer, my quirky side project of building my ideal legal search & reading app, has come a long way. With lots of help, it's grown into the best way to find & read cases on a Mac, iPhone, or iPad. Check it out or download on the App Store below. And follow @CaseViewerApp for updates!
September 4, 2025 at 3:37 PM
Case Viewer, my quirky side project of building my ideal legal search & reading app, has come a long way. With lots of help, it's grown into the best way to find & read cases on a Mac, iPhone, or iPad. Check it out or download on the App Store below. And follow @CaseViewerApp for updates!
Reposted by Dan Epps
I filed an amicus brief in Callais, this fall's blockbuster voting rights case. I make three arguments. First, the Fifteenth Amendment is the constitutional provision that bans racial discrimination in voting. Second, Shaw should be overturned. Finally, Section 2 of the VRA is constitutional.
September 4, 2025 at 1:10 AM
I filed an amicus brief in Callais, this fall's blockbuster voting rights case. I make three arguments. First, the Fifteenth Amendment is the constitutional provision that bans racial discrimination in voting. Second, Shaw should be overturned. Finally, Section 2 of the VRA is constitutional.
Reposted by Dan Epps
The Divided Argument podcast had me on to talk about my new book *The Oldest Constitutional Question: Enumeration and Federal Power.* Very much enjoyed the conversation.
Listen here:
www.dividedargument.com/episodes/bed...
@dividedargument.bsky.social @williambaude.bsky.social @epps.bsky.social
Listen here:
www.dividedargument.com/episodes/bed...
@dividedargument.bsky.social @williambaude.bsky.social @epps.bsky.social
Bedrock Con Law 101 | Divided Argument
We're joined by Michigan law professor Richard Primus to talk about his new book, "The Oldest Constitutional Question: Enumerated and Federal Power." Richard describes one of the the most widespread b...
www.dividedargument.com
August 29, 2025 at 9:15 PM
The Divided Argument podcast had me on to talk about my new book *The Oldest Constitutional Question: Enumeration and Federal Power.* Very much enjoyed the conversation.
Listen here:
www.dividedargument.com/episodes/bed...
@dividedargument.bsky.social @williambaude.bsky.social @epps.bsky.social
Listen here:
www.dividedargument.com/episodes/bed...
@dividedargument.bsky.social @williambaude.bsky.social @epps.bsky.social
NEW PAPER: "Justifying the Fourth Amendment," forthcoming in the Vanderbilt Law Review, now up on @ssrn.bsky.social:
papers.ssrn.com/sol3/papers....
papers.ssrn.com/sol3/papers....
August 12, 2025 at 2:17 PM
NEW PAPER: "Justifying the Fourth Amendment," forthcoming in the Vanderbilt Law Review, now up on @ssrn.bsky.social:
papers.ssrn.com/sol3/papers....
papers.ssrn.com/sol3/papers....
Reposted by Dan Epps
NEW EPISODE: "Originalism Hulk"
It's fraud day as we dig into Kousis v. US and Thompson v. US!
dividedargument.simplecast.com/episodes/ori...
It's fraud day as we dig into Kousis v. US and Thompson v. US!
dividedargument.simplecast.com/episodes/ori...
Originalism Hulk | Divided Argument
Continuing our long slog through the end-of-Term opinion dump, it's fraud day! We dig into Kousisis v. United States and Thompson v. United States, two interesting federal criminal law puzzles.
dividedargument.simplecast.com
August 9, 2025 at 1:14 PM
NEW EPISODE: "Originalism Hulk"
It's fraud day as we dig into Kousis v. US and Thompson v. US!
dividedargument.simplecast.com/episodes/ori...
It's fraud day as we dig into Kousis v. US and Thompson v. US!
dividedargument.simplecast.com/episodes/ori...