New paper alert! My latest - "Brady's Shadow" - is now on SSRN: https://t.co/PYGtFRLXFK 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.🧵

“Tuesday was a banner day for progressive prosecutors.” Me in @Slate

I've never seen a more brutal opening in a book review.

Those people who claim to care about constitutional values or the original meaning of the Constitution must be prepared to live with the fact that grand juries have the power to refuse to allow criminal cases to proceed. It’s a structural limitation on government power.

Hey #Teachers twitter, 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 👇 https://t.co/jxIbcbfHun

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...

Is it a bad thing that students read more contemporary authors who directly address issues like race, gender, and ideology that are particularly relevant to them? (BTW just found out I am blocked by Pinker, despite never having interacted with him.)

Cc @OrinKerr @ASFleischman

cc @evelynliamalave @AnnaFinally @jbrand07 @DoniGewirtzman @rroiphe @austinjennie @BennettCapers @AlmaMagaa13 @ProfARoberts @ARozenshtein @cynthia_godsoe @j_simonson

cc @emilybazelon @MaybellRomero @RachelBarkow @ProfFerguson @NYLawSchool @EthanLowens @LawProfButler @ANatapoff

So many people on here are doing amazing work that helped inspire or inform this project. Thanks & kudos to @CBHessick @ProfRGold @BellinJ @KayLevine12 @AndrewMCrespo

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! Or if not solutions, at least 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 a Brady clone. Teach ALL discovery mechanisms in crim pro, not just Brady.

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.