Here's my conversation with @pdefenselesspod.bsky.social about criminal discovery and the "shadow" (👻👻!) cast by the moribund constitutional Brady doctrine.
podcasts.apple.com/us/podcast/4...
Thank you Michal!
Now forthcoming in the Virginia Law Review, my latest work rethinks how information should get shared in criminal cases, and why we need to look beyond the celebrated Brady doctrine if we are serious about improving the fairness of criminal discovery. 🧵🔽
Fiscally Restraining Criminal Lawmaking is under submission to law journals now. Please send it to your favorite journal editors. Or your least favorite😁. We examine how legislative process could make costs more salient in criminal law, hopefully prompting greater deliberation about benefits too.
I just posted the current version of my most recent Article, "Conceptual Gerrymandering and the Weaponization of SFFA" to @ssrn.bsky.social. Abstract and TOC are attached below. Comments and (good faith) critiques very much welcome and appreciated. 🧵 1/
papers.ssrn.com/sol3/papers....
Quinn, you’ll feel much better if you discover true love. There’s this great song that teaches that true love won’t desert you. Give it a listen sometime. 😈
They could have done something like this in the Trump immunity case and given a chance for the special counsel to take Trump's federal election subversion charges to trial.
Expediting cases is a choice
Ruined.
Hey #Teachers, what are some good tools for providing real-time feedback, during class, on students' writing?
As in, apps that efficiently compile students' written work in one place & enable me to display it, mark it up, highlight parts we're discussing, etc? Thanks!
For the ssrn link and a more detailed preview of the article's main arguments, see this 🧵below 👇
bsky.app/profile/just...
Thanks, Larry, for recommending "Brady's Shadow" -- a work-in-progress now up on ssrn in which I argue that Brady v. Maryland occupies far too much space in the legal consciousness and needs to be knocked down a few pegs to make room for other ideas on criminal discovery...
Take a look at Maybell's latest!
Cc @yalelawjournal.bsky.social @stanlrev.bsky.social @nyulawreview.bsky.social @columlrev.bsky.social @michlawreview.bsky.social
Thanks for giving the article a shout-out for law rev editors if folks are listening. Appreciate it!
It’s sooooooo good, y’all! If I were a law review editor I’d really want to snap this up for publication.
So many people on here have shared valuable ideas or have done great work on criminal discovery that helped inspire or inform this project. Special shout-outs to @miriambaer.bsky.social @imeyn.bsky.social @profrgold.bsky.social @cbhessick.bsky.social @maybell.bsky.social @rachelbarkow.bsky.social
After 60 years, here's the goal: make Brady irrelevant. Build discovery systems so open that constitutional minimums become meaningless.
When prosecutors routinely disclose everything, Brady's shadow finally lifts.
Time to stop tinkering. Time to build something new.
Solutions exist! OK maybe not "solutions" per se, but surely things more worth doing than what we're doing now.
Draft disclosure laws saying "without regard to materiality." Interpret each rule on its own terms, not as Brady clones. Teach ALL discovery mechanisms in crim pro, not just Brady. & more
Brady is a trap that keeps snapping shut bc we keep believing its false promise—that better enforcement or modest tweaks will finally deliver fairness.
Meanwhile statutory reforms, ethics rules, & state constitutions all get conscripted into Brady's failed paradigm.
"Brady's Shadow" (spooky!) envelops law schools, too. One leading casebook calls Brady—wait for it—a "shot heard 'round the world."
Brown v. Board? Sure. But Brady? The doctrine that abandons 95% of defendants who plead guilty?
This is myth-making folks, not law.
It gets darker. Strickland borrowed Brady's materiality test for ineffective assistance claims.
Now we have a race to the bottom: prosecutors can hide evidence, defense lawyers can sleep through trial. Same forgiving standard absolves both.
Constitutional synergy!
Texas tried to fix this w/ the Michael Morton Act. Revolutionary open-file discovery - what's not to love? Except they used the word "material."
Courts immediately went full Brady. Took 6-7 years for the Texas high court to say "material just means relevant, please stop."
I surveyed all 50 states (we're working on territories)—in 12 of them, courts imported Brady's brutal materiality restrictions into statutes that say NOTHING about materiality.
The laws basically say "disclose favorable evidence." Courts add "...only if it's material."
Why??
I call it Brady's shadow. Picture this: legislators write laws telling prosecutors to disclose evidence helpful to the defense. Courts read them and go "hmm, must mean Brady."
Ethics rules? "Basically Brady."
State constitutions? "Let's just follow Brady."
It's maddening.
Everyone knows Brady v. Maryland is a disaster & 40+ years of scholarship says as much. The materiality test? Impossible. Protection at plea stage? Next to none. Enforcement? LOL.
But here's what we missed: Brady isn't just failing. It's dragging everything else down with it.
New paper alert!
My latest - "Brady's Shadow" - is now on SSRN: papers.ssrn.com/sol3/papers....
Still a work in progress—would love your thoughts.
It's about how one spectacularly failed doctrine somehow cannibalized other, more promising avenues for criminal discovery.🧵
By exposing this myth, the article aims to shift the focus of debate toward evaluating different visions of discretionary justice and their impact on communities. 10/10
Conventional prosecutors often dispense categorical leniency informally and covertly in ways that reproduce existing hierarchies. 9/10
Reformist prosecutors tend to adopt more centralized, formal, and transparent policies aimed at reducing incarceration and racial disparities. 8/10
The key difference isn't that reformists use categorical approaches while conventionals don't - it's how they use them. 7/10
