Garrett Coleman & Andrew Allard '25
Executive Editor & Editor-in-Chief
It turns out that legal academics are on social media much more than we previously thought. So much so that the Virginia Law Review and UVA Law Professors Saikrishna Prakash and Aditya Bamzai made the virtual front page on Above the Law.[1] After their essay on the executive removal power was published in Virginia Law Review Online,[2] Professor Julian Davis Mortenson at the University of Michigan Law School took to X (formerly known as Twitter) to voice his concerns in a series of frustrated posts.[3]
Mortenson alleged that Prakash and Bamzai had repeatedly misrepresented his position on the powers inherent in the executive. In relevant part, Prakash and Bamzai’s essay contends:
Although Mortenson has never discussed removal in his articles, he has similarly argued, on the one hand, that the “executive power” was an “empty vessel” and, on the other, that it included “law execution”; might have included “appointments”; and embraced a set of “disaggregated” powers.
But it does not take great brilliance to identify the deep tension in the twin claims that the “executive power” was an “empty vessel” and, at the same time, might have included “law execution,” the “power to appoint assistants,” or other “disaggregated” powers. One claim or the other must give way.[4]
This “empty vessel” was explained by Mortenson in his article, The Executive Power Clause.[5] Not wanting to provoke his ire on X, we think this paragraph provides sufficient context for what Mortenson meant when using that phrase:
When Article II vested “the executive power,” it conveyed the authority to execute the laws. This power was an empty vessel that authorized only those actions previously specified by the laws of the land. . . . Either way, the conceptual gist of executive action was implementation of instruction and authority that came from elsewhere. Make no mistake: the presidency thus created was a massively powerful institution. Just not one with a free-floating foreign affairs power, a residual national security authority, or indeed any other power not specifically listed in the Constitution.[6]
While this reads like common academic parlance to us, the conversation on X was anything but. Before we begin, we would like to note that this article could not include every post or every bit of context. We welcome any challenge on X @LawWeekly. With that said, the first salvo came from Mortenson on Saturday evening:
Mortenson’s thread continued, with increasing zeal:
A Boston University School of Law professor, Jed Shugerman, joined the conversation to side with Mortenson:
The rest of Shugerman’s thread detailed an alleged slight from Prakash and Bamzai. As Shugerman puts it, he organized a conference on executive power in 2022, invited Prakash and Bamzai, but was stood up by Prakash and caught off guard by an unannounced forthcoming article from the two professors in the Harvard Law Review. Shugerman criticized Prakash and Bamzai’s “anti-collegial” decision not to share their drafts in advance of the panel, as other participants had. Shugerman subsequently issued an apology, saying that he was “stepping back” from the discussion on X.
There were also defenders of Prakash and Bamzai. Professor William Baude of the University of Chicago Law School and our very own Professor Richard M. Re joined the battlefield:
Off of X, Baude wrote a more detailed piece about the academic debate, available in The Volokh Conspiracy.[7]
Wound up in this “tweetstorm” was an implicit critique of the law review system, juxtaposed against the peer-review process more common in other academic fields. Professor Milan Markovic of Texas A&M School of Law chimed into the debate to opine on the structural weaknesses of student-run journals:
Professor Jacob Charles, a Second Amendment scholar at Pepperdine Caruso School of Law, seconded Markovic’s criticism of student-run journals, citing District of Columbia v. Heller as a product of gaps in the law review process.
In response, Professor Robert Leider of the Antonin Scalia Law School jumped in to defend student-run journals:
But Professor Jack Rakove of Stanford University’s political science department would not take this lying down:
As authors, we are split on the actual merits of Mortenson’s critique. But we are united in a morbid curiosity about this Saturday-night tweetstorm and a sense that X may be a less-than-ideal forum for academic debate. Whatever the resolution to this debacle, we hope that it will be reached in a gentler exchange.
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jxu6ad@virgina.edu; tya2us@virginia.edu
[1] Joe Patrice, Law Professors Call Out Colleagues Over Persistent Misrepresentations, Above the Law (Aug. 27, 2024). https://abovethelaw.com/2024/08/law-professors-call-out-colleagues-over-persistent-misrepresentations/.
[2] Aditya Bamzai & Saikrishna Bangalore Prakash, How to Think About the Removal Power, 110 Va. L. Rev. Online 159 (2024).
[3] See Patrice, supra note 1. For the rest of this article, we took screenshots of the relevant X accounts, the handles of which are all visible. To the best of our knowledge, all these Xs (tweets?) remain published.
[4] Bamzai & Prakash, supra note 2, at 168 (footnotes and citations omitted).
[5] Julian Davis Mortenson, The Executive Power Clause, 168 U. Pa. L. Rev. 1269 (2020).
[6] Id. at 1367.
[7] Will Baude, Executive Power Scholarship: A Three Level Problem, The Volokh Conspiracy (Aug. 28, 2024), https://reason.com/volokh/2024/08/28/executive-power-scholarship-a-three-level-problem/?utm_source=dlvr.it&utm_medium=twitter.