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The Indian Treaty Power

Introduction

“Great nations, like great men, should keep their word.”1 1.Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 142 (1960) (Black, J., dissenting).Show More

The Supreme Court has an Indian law problem.2 2.This Note uses “Indian” and “Native American” interchangeably to refer to indigenous peoples, consistent with the norms of Indian law scholarship. See, e.g., Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J. 1012, 1014 n.3 (2015).Show More For the first century of this country’s history, Indian tribes were treated as sovereign nations capable of signing treaties, selling their lands, and governing themselves. But 140 years ago, in United States v. Kagama, the Court changed course, bestowing upon the federal government a “plenary”—that is, an exclusive and unlimited—power over Indian affairs, which extended even to regulating the tribes’ internal affairs.3 3.118 U.S. 375, 384–85 (1886).Show More Kagama has been described as “the ghost of manifest destiny that will not let go,”4 4.M. Henry Ishitani & Alexandra Fay, Revising the Indian Plenary Power Doctrine, 29 Mich. J. Race & L. 1, 2 (2024).Show More and the plenary power it inaugurated has been condemned by scholars as untethered from the Constitution,5 5.See, e.g., Philip P. Frickey, Domesticating Federal Indian Law, 81 Minn. L. Rev. 31, 43 (1996) (observing that the “text of the Constitution lacks much of a hint of any plenary power”).Show More rooted in racialized stereotypes,6 6.See, e.g., Ishitani & Fay, supra note 4, at 2–3.Show More at odds with historical practice recognizing Indian sovereignty,7 7.See, e.g., Steven Paul McSloy, Back to the Future: Native American Sovereignty in the 21st Century, 20 N.Y.U. Rev. L. & Soc. Change 217, 218–20 (1993).Show More and “repugnant to the doctrine of enumerated powers.”8 8.Id. at 253.Show More Despite the criticisms lobbed at the plenary power, it has facilitated virtually the entire statutory framework governing Indian affairs—both good and bad. In addition to policies that have enabled the displacement and ethnic cleansing of Indian tribes,9 9.See Nell Jessup Newton, Federal Power Over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195, 227 (1984) (describing the criminalization of indigenous religions and the removal of Native children to boarding schools).Show More the power also serves as the basis for most of Title 25—the portion of the United States Code that houses legislation designed to benefit the tribes in areas ranging from education to healthcare to child welfare.10 10.See Ishitani & Fay, supra note 4, at 17; Ablavsky, supra note 2, at 1016.Show More

But 2023’s Haaland v. Brackeen highlighted cracks in the plenary power’s foundation. Brackeen considered, but did not settle, the constitutionality of the Indian Child Welfare Act (“ICWA”),11 11.Haaland v. Brackeen, 143 S. Ct. 1609, 1629–31 (2023).Show More which regulates state custody proceedings regarding the placement of Indian children with the aim of keeping them in their tribal communities.12 12.Indian Child Welfare Act, 25 U.S.C. §§ 1901–1963.Show More If the Court had faithfully applied Kagama, this would have been an easy case—it could have simply invoked the plenary power without further discussion. But it did not. While the Court gestured at the doctrine, it also canvassed possible bases for ICWA rooted in the Constitution’s text and structure.13 13.Brackeen, 143 S. Ct. at 1630–32.Show More Among the potential alternatives the Court considered were the Indian Commerce Clause,14 14.Id. at 1630.Show More the Treaty Clause,15 15.Id. at 1631.Show More and the federal government’s inherent power over foreign affairs.16 16.Id.Show More But the opinion never settled which textual basis, if any, could sustain ICWA.17 17.Id. at 1630–31 (upholding ICWA because petitioners failed to discharge their “burden of establishing ICWA’s unconstitutionality”).Show More By invoking the plenary power while in the same breath exploring specific constitutional provisions, the Court betrayed its lack of faith in the plenary power’s continuing vitality. The stakes of this doctrinal instability are high; although Brackeen narrowly concerned ICWA, the Court’s waning confidence in the plenary power imperils all of Title 25.

Some scholars have argued that abandoning the doctrine would “effectively erase[]” a myriad of essential programs covering Indian healthcare, housing, education, and more.18 18.See Ablavsky, supra note 2, at 1016 (internal quotation marks omitted); Ishitani & Fay, supra note 4, at 17.Show More But if this is the only reason for adhering to a doctrine that is both contrary to the principle of enumerated powers and unsupported by the Constitution’s text, that reason has weak persuasive force. If the problem is that, without the plenary power, much of Title 25 would fall, the solution is to ground Indian legislation in a textual provision that can legitimately support it.

This Note proposes that the Treaty Clause of Article II, together with the Necessary and Proper Clause of Article I, allows the federal government to fulfill its obligations to Indian nations without resorting to plenary authority. Prior scholarship has largely converged on the Indian Commerce Clause as the proper constitutional home for Title 25;19 19.See, e.g., Stephen Andrews, In Defense of the Indian Commerce Clause, 9 Am. Indian L.J. 182, 204–06 (2021); Ablavsky, supra note 2, at 1029.Show More but, as this Note demonstrates, that provision is insufficient to sustain legislation like ICWA, which lacks any nexus to commerce. While the Court has invoked the Treaty Clause a few times in addressing federal authority over Indian affairs,20 20.Brackeen, 143 S. Ct. at 1628; McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 172 n.7 (1973); United States v. Lara, 541 U.S. 193, 200 (2004); Morton v. Mancari, 417 U.S. 535, 552 (1974).Show More and a handful of scholars have briefly gestured at the provision,21 21.See, e.g., Lorianne Updike Toler, The Missing Indian Affairs Clause, 88 U. Chi. L. Rev. 413, 482 (2021) (arguing that, in the absence of a plenary power, the solution is to ratify new treaties with the tribes); Saikrishna Prakash, Against Tribal Fungibility, 89 Corn. L. Rev. 1069, 1095–97 (2004) (arguing that specific treaties might give the government narrow authority vis-à-vis particular tribes).Show More this Note is the first piece of legal scholarship to fully consider its potential and to operationalize it through the Necessary and Proper Clause.

This Note proceeds in three parts. Part I details the origins and scholarly critiques of the plenary power doctrine and traces the Supreme Court’s slow retreat from it. Part II argues that the most popular alternative to the plenary power, the Indian Commerce Clause, is insufficient to sustain portions of Title 25, specifically the provisions lacking any nexus to economic enterprise. Such provisions exist in a state of constitutional limbo. Part III fills that gap, arguing that the Necessary and Proper Clause authorizes Congress to implement the United States’ treaties with Indian tribes, and that Title 25 legislation is “necessary and proper” to honor those commitments. While this Note focuses on ICWA as a uniquely vulnerable statute, its arguments apply with equal force to other provisions in Title 25.22 22.Doing away with the plenary power “would render much of federal Indian law . . . at least preliminarily suspect.” Ishitani & Fay, supra note 4, at 17. Because noneconomic crimes, United States v. Morrison, 529 U.S. 598, 617 (2000), and land use, Lake Country Ests., Inc. v. Tahoe Reg’l Plan. Agency, 440 U.S. 391, 402 (1979), are traditionally regulated at the local level, Title 25 legislation that operates in these areas, similar to ICWA, cannot be sustained under the Commerce Clause. Nonetheless, this legislation too might be considered “necessary and proper” to implementing various treaties. Compare, e.g., Indian Civil Rights Act § 204, 25 U.S.C. § 1304 (authorizing tribal jurisdiction over domestic violence offenses committed on Indian lands), Indian Reorganization Act, 25 U.S.C. §§ 5101–5129 (taking land into trust for the tribes and managing its use), and 25 U.S.C. §§ 371–380 (regulating the intestacy of Indian lands), with Treaty with the Navajo Indians, Navajo-U.S., art. I, ¶ 2, June 1, 1868, 15 Stat. 667, https://treaties.okstate.edu/treaties/treaty-‌with-the-navaho-1868-1015 [https://perma.cc/2WQY-8EUN] (providing for the punishment of white offenders in Indian country), Treaty with the Cherokees, Cherokee-U.S., arts. VIII–IX, July 2, 1791, 7 Stat. 39, https://treaties.okstate.edu/treaties/treaty-with-the-cherokee-179‌1-0029 [https://perma.cc/Z45F-ZQZ4] (setting apart land for the tribe and providing for assistance in managing it), and Treaty with the Chickasaw, Chickasaw-U.S., art. IV, May 24, 1834, 7 Stat. 450, https://treaties.okstate.edu/treaties/treaty-with-the-chickasaw-183‌4-0418 [https://perma.cc/JX24-KPQS] (providing for the descent of Indian lands to heirs).Show More

  1.  Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 142 (1960) (Black, J., dissenting). ↑
  2.  This Note uses “Indian” and “Native American” interchangeably to refer to indigenous peoples, consistent with the norms of Indian law scholarship. See, e.g., Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J. 1012, 1014 n.3 (2015). ↑
  3.  118 U.S. 375, 384–85 (1886). ↑
  4.  M. Henry Ishitani & Alexandra Fay, Revising the Indian Plenary Power Doctrine, 29 Mich. J. Race & L. 1, 2 (2024). ↑
  5.  See, e.g., Philip P. Frickey, Domesticating Federal Indian Law, 81 Minn. L. Rev. 31, 43 (1996) (observing that the “text of the Constitution lacks much of a hint of any plenary power”). ↑
  6.  See, e.g., Ishitani & Fay, supra note 4, at 2–3. ↑
  7.  See, e.g., Steven Paul McSloy, Back to the Future: Native American Sovereignty in the 21st Century, 20 N.Y.U. Rev. L. & Soc. Change 217, 218–20 (1993). ↑
  8.  Id. at 253. ↑
  9.  See Nell Jessup Newton, Federal Power Over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195, 227 (1984) (describing the criminalization of indigenous religions and the removal of Native children to boarding schools). ↑
  10.  See Ishitani & Fay, supra note 4, at 17; Ablavsky, supra note 2, at 1016. ↑
  11.  Haaland v. Brackeen, 143 S. Ct. 1609, 1629–31 (2023). ↑
  12.  Indian Child Welfare Act, 25 U.S.C. §§ 1901–1963. ↑
  13.  Brackeen, 143 S. Ct. at 1630–32. ↑
  14.  Id. at 1630. ↑
  15.  Id. at 1631. ↑
  16.  Id. ↑
  17.  Id. at 1630–31 (upholding ICWA because petitioners failed to discharge their “burden of establishing ICWA’s unconstitutionality”). ↑
  18.  See Ablavsky, supra note 2, at 1016 (internal quotation marks omitted); Ishitani & Fay, supra note 4, at 17. ↑
  19.  See, e.g., Stephen Andrews, In Defense of the Indian Commerce Clause, 9 Am. Indian L.J. 182, 204–06 (2021); Ablavsky, supra note 2, at 1029. ↑
  20.  Brackeen, 143 S. Ct. at 1628; McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 172 n.7 (1973); United States v. Lara, 541 U.S. 193, 200 (2004); Morton v. Mancari, 417 U.S. 535, 552 (1974). ↑
  21.  See, e.g., Lorianne Updike Toler, The Missing Indian Affairs Clause, 88 U. Chi. L. Rev. 413, 482 (2021) (arguing that, in the absence of a plenary power, the solution is to ratify new treaties with the tribes); Saikrishna Prakash, Against Tribal Fungibility, 89 Corn. L. Rev. 1069, 1095–97 (2004) (arguing that specific treaties might give the government narrow authority vis-à-vis particular tribes). ↑

  22.  Doing away with the plenary power “would render much of federal Indian law . . . at least preliminarily suspect.” Ishitani & Fay, supra note 4, at 17. Because noneconomic crimes, United States v. Morrison, 529 U.S. 598, 617 (2000), and land use, Lake Country Ests., Inc. v. Tahoe Reg’l Plan. Agency, 440 U.S. 391, 402 (1979), are traditionally regulated at the local level, Title 25 legislation that operates in these areas, similar to ICWA, cannot be sustained under the Commerce Clause. Nonetheless, this legislation too might be considered “necessary and proper” to implementing various treaties. Compare, e.g., Indian Civil Rights Act § 204, 25 U.S.C. § 1304 (authorizing tribal jurisdiction over domestic violence offenses committed on Indian lands), Indian Reorganization Act, 25 U.S.C. §§ 5101–5129 (taking land into trust for the tribes and managing its use), and 25 U.S.C. §§ 371–380 (regulating the intestacy of Indian lands), with Treaty with the Navajo Indians, Navajo-U.S., art. I, ¶ 2, June 1, 1868, 15 Stat. 667, https://treaties.okstate.edu/treaties/treaty-‌with-the-navaho-1868-1015 [https://perma.cc/2WQY-8EUN] (providing for the punishment of white offenders in Indian country), Treaty with the Cherokees, Cherokee-U.S., arts. VIII–IX, July 2, 1791, 7 Stat. 39, https://treaties.okstate.edu/treaties/treaty-with-the-cherokee-179‌1-0029 [https://perma.cc/Z45F-ZQZ4] (setting apart land for the tribe and providing for assistance in managing it), and Treaty with the Chickasaw, Chickasaw-U.S., art. IV, May 24, 1834, 7 Stat. 450, https://treaties.okstate.edu/treaties/treaty-with-the-chickasaw-183‌4-0418 [https://perma.cc/JX24-KPQS] (providing for the descent of Indian lands to heirs). ↑

What is Insurance for Tort Law?

Introduction

This Article provides a long-deferred answer to a question a student asked in my torts class some years ago: “What is insurance for tort law?” As I answered more briefly then, insurance is many things for tort law. Insurance not only dominates the defense side of most tort litigation, with all the institutional consequences that entails, but it also affects how we understand tort law. For example, the spread of liability insurance allowed mid-twentieth-century torts scholars and judges to imagine tort law as a loss-spreading and cost-internalizing institution,1 1.See infra Section III.A.Show More and liability insurance has simultaneously advanced and undercut tort law’s deterrence and corrective justice ever since its invention in the late nineteenth century.2 2.See infra Sections III.B–C; Kenneth S. Abraham, Liability Insurance and Accident Prevention: The Evolution of an Idea, 64 Md. L. Rev. 573, 580 (2005).Show More

My original plan was to write a short essay for torts teachers and students that summarized insights from prior work on the relationship between insurance and tort law. But recent, high-profile work by Kenneth Abraham and Catherine Sharkey prompted deeper exploration.3 3.Kenneth S. Abraham & Catherine M. Sharkey, The Glaring Gap in Tort Theory, 133 Yale L.J. 2165 (2024).Show More In their 2024 Yale Law Journal article, Abraham and Sharkey argue that there is a “glaring gap in tort theory” that results from the failure of tort theorists to adequately address the dominant role of liability insurance in tort law and practice.4 4.Id. at 2169.Show More They report that some courts are ahead of these tort theorists in that regard, already taking liability insurance into account when making tort doctrine.5 5.Id. at 2191.Show More They applaud that practice and suggest that courts should do so more often, more explicitly, and on a more informed basis.6 6.Id. at 2242.Show More

Their analysis prompted me to examine what philosophically oriented tort theorists have said about liability insurance. I found that, contrary to what a casual reader of Abraham and Sharkey’s article might conclude, tort theorists operating within the framework of moral philosophy have in fact considered liability insurance.7 7.See, e.g., Jules L. Coleman, On the Moral Argument for the Fault System, 71 J. Phil. 473, 487 (1974) [hereinafter Coleman, On the Moral Argument]; Jules L. Coleman, Justice and the Argument for No-Fault, 3 Soc. Theory & Prac. 161, 164–65 (1974) [hereinafter Coleman, Justice and the Argument].Show More But, having done so, they decided that liability insurance considerations lie normatively outside the theories of tort law that they are developing.8 8.See, e.g., Jules L. Coleman, Risks and Wrongs 198 (1992); John C.P. Goldberg, Unloved: Tort in the Modern Legal Academy, 55 Vand. L. Rev. 1501, 1519 (2002); Gregory C. Keating, Reasonableness and Risk: Right and Responsibility in the Law of Torts 290 (2022) (“[N]othing in negligence liability forbids injurers from insuring against potential liability, but nothing in negligence liability requires it either.”). For a notable exception, see Tony Honoré, The Morality of Tort Law—Questions and Answers, in Philosophical Foundations of Tort Law 73, 85–90 (David G. Owen ed., 1995).Show More Abraham and Sharkey disagree with that decision, but they support their disagreement with arguments that are unlikely to be persuasive to these theorists.9 9.Abraham & Sharkey, supra note 3, at 2231–33 (suggesting that deontic theories should accommodate “instrumental and policy-based considerations” implicated by the presence or absence of liability insurance).Show More

My encounter with the work of these theorists, as well as with tort law practitioners, persuades me that there is value in trying to work out tort law right and wrong on some basis other than the inevitably incomplete social welfare analysis offered by standard law-and-economics accounts. If the scholars doing that work have concluded that liability insurance lies outside their project, the burden is on me to persuade them to reconsider. That requires using arguments that they could find persuasive.

This Article takes on that challenge while answering the original motivating question. As such, the Article makes both descriptive and normative contributions. The descriptive contributions are: summarizing what prior work teaches about the impact of liability insurance on tort cases (such as which cases are brought, who defends them, and who pays for them), extending Abraham and Sharkey’s claim that liability insurance affects the development of tort doctrine, and describing for the first time in one place how liability insurance relates to a set of potential foundations, justifications, functions, or objectives for tort law (compensation, deterrence, corrective justice, and retribution).

The normative contributions build on the descriptive, starting with the observation that the (un)availability of liability insurance strongly affects the nature of justice available within the domain of tort law. As the title of Stephen Perry’s classic article reminds us, tort theory should address “The Moral Foundations of Tort Law.”10 10.Stephen R. Perry, The Moral Foundations of Tort Law, 77 Iowa L. Rev. 449 (1992) [hereinafter Perry, Moral Foundations].Show More I argue that this requires attending not only to the presence or absence of adequate justifications for tort liability, but also to the distribution of the right to the redress that tort liability provides. That requires considering who has liability insurance for what wrongs and whether what we find satisfies the minimal demands of whatever moral theory of tort law we find persuasive, whether that be corrective justice, civil recourse, utilitarianism, some mix of the foregoing, or something else.

Traditionally, tort theorists operating within the framework of moral philosophy have resisted being drawn into questions of distribution.11 11.See, e.g., Ernest J. Weinrib, Toward a Moral Theory of Negligence Law, 2 Law & Phil. 37, 38 (1983) (describing tort law as embodying corrective justice as opposed to distributive justice); Jules L. Coleman, The Mixed Conception of Corrective Justice, 77 Iowa L. Rev. 427, 433 (1992) (arguing that the moral principle of corrective justice cannot be satisfied by a distributive scheme of liability).Show More As they explain, generalized, community-wide distributive justice considerations cannot provide a compelling justification for providing compensation to tort victims rather than people injured in other ways.12 12.See, e.g., Ernest J. Weinrib, Corrective Justice in a Nutshell, 52 U. Toro. L.J. 349, 351–52 (2002); Coleman, supra note 11, at 435.Show More I agree, but the distribution of the right to corrective justice or civil recourse is different. As Stephen Perry first articulated, there is a local question of distribution that informs corrective justice.13 13.Perry, Moral Foundations, supra note 10, at 461; see also Stephen R. Perry, On the Relationship Between Corrective and Distributive Justice, in 4 Oxford Essays in Jurisprudence 237, 237 (Jeremy Horder ed., 2000) (clarifying that while there is a normative connection between distributive justice and corrective justice, the two have different purposes and are conceptually independent).Show More Who among all the people with a causal relationship to an injury should bear the loss associated with that injury?14 14.Perry, Moral Foundations, supra note 10, at 461.Show More That local question differs from questions of general distribution because there are agent-specific reasons to include someone in the local consideration set and agent-specific reasons for deciding who among that set should bear the loss.15 15.Id.Show More

In later work, the legal philosopher John Gardner expanded Perry’s concept of local distribution to a more general “distribution of correction.” As Gardner explained, when courts or legislatures create tort law rules that give victims of some morally wrongful acts, but not others, a legal right to recourse from their wrongdoers, they are distributing the legal right to correction.16 16.John Gardner, Torts and Other Wrongs 83–86 (2019).Show More I argue that tort theorists should attend not only to the gaps between moral and legal rights to correction, but also to the gaps between legal rights to correction and their actualization.

When tortfeasors do not have liability insurance, victims bear wrongful losses on their own, unless they are lucky enough to find that the wrongdoers have substantial assets. For everyone else facing an uninsured defendant, tort law provides only a pretense of the right to corrective justice. While there may not be a compelling basis in generalized, community-wide distributive justice for providing compensation to these victims rather than others, there is a compelling basis in corrective justice, which supplies the agent-specific obligations of the tortfeasors who could be made to pay—if they had the liability insurance that the present structure of the liability insurance market does not provide them.17 17.See infra Part IV.Show More

Retributive justice provides yet another reason for tort theorists to reexamine their decision to set liability insurance considerations aside. As Jules Coleman explained at the dawn of corrective justice theory, retributive justice does not provide an adequate moral foundation for tort law.18 18.See Coleman, On the Moral Argument, supra note 7, at 481–82; Coleman, Justice and the Argument, supra note 7, at 174–75.Show More But that does not mean (and he never contended) that retribution has no place in tort law or theory.19 19.Coleman, Justice and the Argument, supra note 7, at 177–78; see also Scott Hershovitz, Treating Wrongs as Wrongs: An Expressive Argument for Tort Law, 10 J. Tort L. 405, 408 (2017) (arguing that tort liability expresses the judgment that the defendant has wronged the plaintiff); David G. Owen, Deterrence and Desert in Tort: A Comment, 73 Calif. L. Rev. 665, 666 (1985) (describing punishment and compensation as the two broad functions of tort law).Show More Indeed, Tony Honoré has suggested that considerations of retributive justice should “temper[]” the corrective justice that tort law provides.20 20.Honoré, supra note 8, at 90.Show More Moreover, as any successful plaintiff lawyer can attest, retribution is alive and well in civil justice, as demonstrated by the extent to which plaintiff lawyers work to arouse jurors’ feelings of outrage and condemnation.21 21.Tom Baker, Transforming Punishment into Compensation: In the Shadow of Punitive Damages, 1998 Wis. L. Rev. 211, 226–28 [hereinafter Baker, Transforming Punishment]; cf. Kenneth S. Abraham, Shadow Tort Law: Lessons from the Reptile, 122 Colum. L. Rev. F. 110, 114–15 (2022) (describing plaintiff lawyers’ efforts to appeal to jurors’ instincts to protect themselves and their communities from wrongdoing).Show More

Where corrective justice provides reasons to attend to the gaps created by the absence of liability insurance (and reasons to encourage its presence), retributive justice provides reasons to attend to the presence of liability insurance. These latter reasons cut in two directions. On the one hand, the presence of liability insurance may ameliorate concerns about disproportionate liability—because an insurer, not the less-than-fully culpable defendant, will pay the damages.22 22.Honoré, supra note 8, at 90.Show More On the other hand, the presence of liability insurance may raise retributive justice concerns when that insurance insulates culpable, solvent defendants from financial consequences for serious wrongs.23 23.See infra Section III.D.Show More

* * *

The Article proceeds as follows. Part I addresses the impact of liability insurance on tort law in action. Part II addresses the impact of liability insurance on tort doctrine. Part III addresses the relationship of liability insurance to the compensation, deterrence, corrective justice, and retributive justice provided by tort law.

Part IV takes a more explicitly normative turn, making the case for tort theorists to incorporate insurance considerations into their normative analysis. In that regard, I argue that tort theory should acknowledge the role that liability insurance can play in promoting corrective justice and civil recourse, and it should attend to features of liability insurance law and practice that limit the distribution of corrective justice and civil recourse. With regard to retribution, I argue that private law theorists should recognize the role that liability insurance practice has played in suppressing the retributive aspects of tort law, making contemporary tort law more about deterrence and corrective justice than the desire for vengeance out of which tort law arguably emerged.24 24.See David J. Seipp, The Distinction Between Crime and Tort in the Early Common Law, 76 B.U. L. Rev. 59, 59–60 (1996); Mark A. Geistfeld, Hidden in Plain Sight: The Normative Source of Modern Tort Law, 91 N.Y.U. L. Rev. 1517, 1522–23, 1529 (2016) (arguing that Holmes overstated the retributive origins of tort law); cf. Scott Hershovitz, Tort as a Substitute for Revenge, in Philosophical Foundations of the Law of Torts 86, 98 (John Oberdiek ed., 2014) (arguing for understanding revenge in corrective justice terms).Show More

Part V turns to Abraham and Sharkey’s central normative claim: that courts should take liability insurance into account when making tort doctrine. I first provide reasons within the domain of moral philosophy to support that claim in certain cases. For example, where there are historical gaps in tort liability that raise significant questions about the existing distribution of correction, the presence of a robust market for insurance that would cover liability for wrongs in those gaps could be relevant to a court deciding whether the time had come to fill or narrow those gaps. Liability insurance promotes corrective justice by providing an institutional structure that allows victims to recover from wrongdoers and, thus, all other things being equal, courts do more to promote corrective justice when they channel tort doctrine toward liability insurance. Thus, the existence of relevant liability insurance should provide a thumb on the scale in favor of narrowing the gap between moral and legal conceptions of corrective justice.

I part ways with Abraham and Sharkey in circumstances in which (a) there is not an existing liability insurance market that would cover the kind of liability in question or (b) the defendants (or other interested parties) contend that changing tort doctrine would destabilize an existing liability insurance market. I provide conceptual and empirical reasons to support my view that courts and other lawmakers should not make liability decisions that are based on predictions about what kinds of liabilities are capable of being insured as a technical or actuarial matter. Such decisions are unlikely to support the goals of tort law explored earlier, and courts lack the institutional competence to make reliable predictions about the effect of their decisions on the liability insurance market. Insurance is “an uncertain business” in which insurers regularly insure uncertain risk.25 25.Richard V. Ericson & Aaron Doyle, Uncertain Business: Risk, Insurance, and the Limits of Knowledge 5, 16 (2004); Tom Baker, Uncertainty > Risk: Lessons for Legal Thought from the Insurance Runoff Market, 62 B.C. L. Rev. 59, 65 (2021).Show More If insurers cannot reliably predict what can and cannot in the long run be insured, there is little reason to believe that courts will do any better. To this extent I disagree with Abraham and Sharkey and with judicial decisions such as those that cut back on strict products liability on the grounds that it would be impossible to insure against an uncertain risk.26 26.See, e.g., Anderson v. Owens-Corning Fiberglas Corp., 810 P.2d 549, 559 (Cal. 1991) (providing an insurance market justification for requiring trial courts to instruct the jury on the “state of the art” defense).Show More

* * *

Before proceeding, I should mention an understanding about the history of tort law that many legal historians and legal scholars have so internalized that we sometimes forget to express.27 27.Thank you to Sandra Mayson for prompting me to make this point explicit.Show More It is only a slight exaggeration to say that tort law as we know it has never existed in the United States without insurance. John Witt’s The Accidental Republic and Kenneth Abraham’s The Liability Century stand out for me as the leading monographs making this case.28 28.Kenneth S. Abraham, The Liability Century: Insurance and Tort Law from the Progressive Era to 9/11, at 172–73 (2008) [hereinafter Abraham, The Liability Century]; see also Kenneth S. Abraham, Free Speech, Breathing Space, and Liability Insurance, 111 Va. L. Rev. 1007, 1015 (2025) (recognizing the unsung role of insurance markets even in providing “financial protection against speech-tort liability,” a topic not addressed in The Liability Century). See generally John Fabian Witt, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (2004).Show More As their work shows, there never was a stable set of tort law doctrines and causes of action upon which insurance institutions subsequently acted. Rather, modern tort law and liability insurance emerged and evolved together.

Despite that history, all leading tort theory proceeds as if there were a primary institution called “tort law” upon which another, secondary institution called “insurance” acts. Although that is decidedly not my perspective, I am writing this Article for four audiences that take this perspective, at least as a starting point: judges making tort doctrine; students taking a tort law class; torts teachers who teach torts from that perspective but want to consider ways to better prepare their students; and philosophically oriented tort theorists. For that reason, my description starts from that perspective as well.

  1.  See infra Section III.A. ↑
  2.  See infra Sections III.B–C; Kenneth S. Abraham, Liability Insurance and Accident Prevention: The Evolution of an Idea, 64 Md. L. Rev. 573, 580 (2005). ↑
  3.  Kenneth S. Abraham & Catherine M. Sharkey, The Glaring Gap in Tort Theory, 133 Yale L.J. 2165 (2024). ↑
  4.  Id. at 2169. ↑
  5.  Id. at 2191. ↑
  6.  Id. at 2242. ↑
  7.  See, e.g., Jules L. Coleman, On the Moral Argument for the Fault System, 71 J. Phil. 473, 487 (1974) [hereinafter Coleman, On the Moral Argument]; Jules L. Coleman, Justice and the Argument for No-Fault, 3 Soc. Theory & Prac. 161, 164–65 (1974) [hereinafter Coleman, Justice and the Argument]. ↑
  8.  See, e.g., Jules L. Coleman, Risks and Wrongs 198 (1992); John C.P. Goldberg, Unloved: Tort in the Modern Legal Academy, 55 Vand. L. Rev. 1501, 1519 (2002); Gregory C. Keating, Reasonableness and Risk: Right and Responsibility in the Law of Torts 290 (2022) (“[N]othing in negligence liability forbids injurers from insuring against potential liability, but nothing in negligence liability requires it either.”). For a notable exception, see Tony Honoré, The Morality of Tort Law—Questions and Answers, in Philosophical Foundations of Tort Law 73, 85–90 (David G. Owen ed., 1995). ↑
  9.  Abraham & Sharkey, supra note 3, at 2231–33 (suggesting that deontic theories should accommodate “instrumental and policy-based considerations” implicated by the presence or absence of liability insurance). ↑
  10.  Stephen R. Perry, The Moral Foundations of Tort Law, 77 Iowa L. Rev. 449 (1992) [hereinafter Perry, Moral Foundations]. ↑
  11.  See, e.g., Ernest J. Weinrib, Toward a Moral Theory of Negligence Law, 2 Law & Phil. 37, 38 (1983) (describing tort law as embodying corrective justice as opposed to distributive justice); Jules L. Coleman, The Mixed Conception of Corrective Justice, 77 Iowa L. Rev. 427, 433 (1992) (arguing that the moral principle of corrective justice cannot be satisfied by a distributive scheme of liability). ↑
  12.  See, e.g., Ernest J. Weinrib, Corrective Justice in a Nutshell, 52 U. Toro. L.J. 349, 351–52 (2002); Coleman, supra note 11, at 435. ↑
  13.  Perry, Moral Foundations, supra note 10, at 461; see also Stephen R. Perry, On the Relationship Between Corrective and Distributive Justice, in 4 Oxford Essays in Jurisprudence 237, 237 (Jeremy Horder ed., 2000) (clarifying that while there is a normative connection between distributive justice and corrective justice, the two have different purposes and are conceptually independent). ↑
  14.  Perry, Moral Foundations, supra note 10, at 461. ↑
  15.  Id. ↑
  16.  John Gardner, Torts and Other Wrongs 83–86 (2019). ↑
  17.  See infra Part IV. ↑
  18.  See Coleman, On the Moral Argument, supra note 7, at 481–82; Coleman, Justice and the Argument, supra note 7, at 174–75. ↑
  19.  Coleman, Justice and the Argument, supra note 7, at 177–78; see also Scott Hershovitz, Treating Wrongs as Wrongs: An Expressive Argument for Tort Law, 10 J. Tort L. 405, 408 (2017) (arguing that tort liability expresses the judgment that the defendant has wronged the plaintiff); David G. Owen, Deterrence and Desert in Tort: A Comment, 73 Calif. L. Rev. 665, 666 (1985) (describing punishment and compensation as the two broad functions of tort law). ↑
  20.  Honoré, supra note 8, at 90. ↑
  21.  Tom Baker, Transforming Punishment into Compensation: In the Shadow of Punitive Damages, 1998 Wis. L. Rev. 211, 226–28 [hereinafter Baker, Transforming Punishment]; cf. Kenneth S. Abraham, Shadow Tort Law: Lessons from the Reptile, 122 Colum. L. Rev. F. 110, 114–15 (2022) (describing plaintiff lawyers’ efforts to appeal to jurors’ instincts to protect themselves and their communities from wrongdoing). ↑
  22.  Honoré, supra note 8, at 90. ↑
  23.  See infra Section III.D. ↑
  24.  See David J. Seipp, The Distinction Between Crime and Tort in the Early Common Law, 76 B.U. L. Rev. 59, 59–60 (1996); Mark A. Geistfeld, Hidden in Plain Sight: The Normative Source of Modern Tort Law, 91 N.Y.U. L. Rev. 1517, 1522–23, 1529 (2016) (arguing that Holmes overstated the retributive origins of tort law); cf. Scott Hershovitz, Tort as a Substitute for Revenge, in Philosophical Foundations of the Law of Torts 86, 98 (John Oberdiek ed., 2014) (arguing for understanding revenge in corrective justice terms). ↑
  25.  Richard V. Ericson & Aaron Doyle, Uncertain Business: Risk, Insurance, and the Limits of Knowledge 5, 16 (2004); Tom Baker, Uncertainty > Risk: Lessons for Legal Thought from the Insurance Runoff Market, 62 B.C. L. Rev. 59, 65 (2021). ↑
  26.  See, e.g., Anderson v. Owens-Corning Fiberglas Corp., 810 P.2d 549, 559 (Cal. 1991) (providing an insurance market justification for requiring trial courts to instruct the jury on the “state of the art” defense). ↑
  27.  Thank you to Sandra Mayson for prompting me to make this point explicit. ↑

  28.  Kenneth S. Abraham, The Liability Century: Insurance and Tort Law from the Progressive Era to 9/11, at 172–73 (2008) [hereinafter Abraham, The Liability Century]; see also Kenneth S. Abraham, Free Speech, Breathing Space, and Liability Insurance, 111 Va. L. Rev. 1007, 1015 (2025) (recognizing the unsung role of insurance markets even in providing “financial protection against speech-tort liability,” a topic not addressed in The Liability Century). See generally John Fabian Witt, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (2004). ↑

Evidence Law in the Age of Plea Bargaining

[I]t’s part of this legal system that one is condemned when one is not only innocent, but also ignorant.1 1.Franz Kafka, The Trial 40 (Mike Mitchell trans., Oxford Univ. Press 2009) (1925).Show More

Introduction

The U.S. Supreme Court’s landmark decision in Brady v. Maryland established the due process requirement that the prosecution disclose material “evidence favorable to an accused.”2 2.373 U.S. 83, 87 (1963). In 1972, the Supreme Court broadened this rule to include some impeachment material. See Giglio v. United States, 405 U.S. 150, 154 (1972).Show More But on December 5, 2022, the promise of Brady reached a legal impasse: the Court denied certiorari in Mansfield v. Williamson County,3 3.30 F.4th 276 (5th Cir. 2022), cert. denied, 143 S. Ct. 486 (2022).Show More leaving unresolved the pressing question of whether Brady’s obligations extend to the plea bargaining stage or apply only at trial.4 4.Id. at 282 & n.9 (Higginbotham, J., concurring) (presenting the circuit split on this issue).Show More The case of Troy Mansfield poignantly illustrates what’s at stake.5 5.See Eza Bella Zakirova, Is It Rational or Not?: When Innocents Plead Guilty in Child Sex Abuse Cases, 82 Alb. L. Rev. 815, 833 n.102 (2019) (detailing the factual background of the Troy Mansfield case).Show More

Proceedings against Troy Mansfield commenced in 1992, when he was charged in Williamson County, Texas, with first-degree aggravated sexual assault and indecency with a child following allegations that he had molested a four-year-old girl. He was twenty-five years old at the time. The prosecutors in Mansfield’s case had evidence that seriously undermined the victim’s credibility and raised doubts about his guilt. Rather than presenting this crucial evidence to Mansfield, the prosecution chose to make an enticing plea offer: 120 days in county jail, ten years of probation, and sex offender registration in exchange for a guilty plea to a lesser charge. Given the alternative of a ninety-nine-year-to-life sentence, Mansfield opted to accept the deal and pleaded guilty. It was nearly a quarter of a century later, in 2014, that Mansfield finally managed to obtain access to the prosecution’s file, where he discovered the favorable evidence that had been withheld from him.6 6.Id.Show More With this newfound information, a Williamson County judge vacated his conviction in 2016.7 7.Ex parte Mansfield, No. 92-435-K277A (Tex. Jud. Dist. Ct. Jan. 19, 2016).Show More However, the damage had already been done. Mansfield spent years of his life labeled a convicted sex offender because of a plea agreement obtained through the suppression of exculpatory evidence, conduct that would have constituted a Brady due process violation had the case proceeded to trial.8 8.Although the court in Mansfield did not decide whether there had been a Brady violation since Mansfield’s case never reached trial, it seems uncontroversial to conclude that the prosecution here withheld material exculpatory evidence upon request. See Mansfield, 30 F.4th at 277–78; Brady v. Maryland, 373 U.S. 83, 87–88 (1963); see also Ex parte Mansfield, slip op. at 5 (holding, independently and by State concession, that the prosecution’s withholding of the victim’s interview notes violated Brady); Sela Brown, Brady in the Plea Era: How U.S. v. Ruiz Should Be Reconstrued in Light of Missouri v. Frye and Lafler v. Cooper, 27 Berkeley J. Crim. L. 1, 3 (2022) (discussing the government’s affirmative duty to share exculpatory and impeachment evidence with the defendant under Brady v. Maryland).Show More

Mansfield’s case underscores a profound tension: while the Brady doctrine mandates the disclosure of favorable evidence material to guilt or punishment, its application has been narrowly interpreted by some courts, notably the Fifth Circuit, as confined to the trial stage.9 9.Alvarez v. City of Brownsville, 904 F.3d 382, 392 (5th Cir. 2018) (en banc). There are federal courts of appeals that have recognized prosecutors’ constitutional obligation to reveal exculpatory evidence to defendants before a guilty plea. See Laura Falk, Note, Brady Rights in a System of Pleas: Analyzing the Ninth Circuit’s “Apparent Position,” 67 Ariz. L. Rev. 241, 246–51 (2025); Michael Nasser Petegorsky, Note, Plea Bargaining in the Dark: The Duty to Disclose Exculpatory Brady Evidence During Plea Bargaining, 81 Fordham L. Rev. 3599, 3625–31 (2013).Show More Consequently, when Mansfield sought civil redress for the earlier suppression, his case was dismissed, a decision the Fifth Circuit upheld, cementing its stance that Brady does not govern the plea bargaining stage.10 10.Mansfield, 30 F.4th at 281; see also Matthew v. Johnson, 201 F.3d 353, 361–62 (5th Cir. 2000) (stating that a Brady violation requires a trial); United States v. Conroy, 567 F.3d 174, 178 (5th Cir. 2009) (per curiam) (noting that there can be no Brady violation with a guilty plea).Show More The subsequent petition for certiorari, supported by amicus briefs from legal scholars and civil rights organizations, challenged this restrictive interpretation.11 11.Petition for a Writ of Certiorari at 23–25, Mansfield v. Williamson County, 143 S. Ct. 486 (2022) (No. 22-186); Brief of Amici Curiae Law Professors in Support of Petitioner Troy Mansfield at 6–16, Mansfield, 143 S. Ct. 486 (No. 22-186); Brief of Amicus Curiae Professor Colin Miller in Support of Petitioner at 13–14, Mansfield, 143 S. Ct. 486 (No. 22-186); Brief of the Cato Institute as Amicus Curiae Supporting Petitioner at 13–14, Mansfield, 143 S. Ct. 486 (No. 22-186).Show More The Supreme Court’s decision not to grant review effectively maintained the status quo, leaving unresolved the crucial constitutional question of Brady’s reach in the dominant plea bargaining system.12 12.See Montré D. Carodine, Keeping It Real: Reforming the “Untried Conviction” Impeachment Rule, 69 Md. L. Rev. 501, 516 (2010) (noting based on data from 2004 that ninety-seven percent of felony convictions in the seventy-five most populous counties in the United States were obtained through guilty pleas (citing Tracey Kyckelhahn & Thomas H. Cohen, Bureau of Just. Stat., U.S. Dep’t of Just., Felony Defendants in Large Urban Counties, 2004, at 1, 3 (2008), https://static.prisonpolicy.org/scans/bjs/fdluc04.pdf [https://pe‌rma.cc/P4MD-8EKP])); see also Darryl K. Brown, Response, What’s the Matter with Kansas—and Utah?: Explaining Judicial Interventions in Plea Bargaining, 95 Tex. L. Rev. See Also 47, 62 (2017) (noting that some jurisdictions resolved ninety-nine percent of criminal cases with plea agreements).Show More

To further illustrate the limitations of a trial-centric model,13 13.Brady’s disclosure obligations are firmly established within criminal procedure, so their invocation as an example of evidence law’s trial-centricity may prompt hesitation. Yet it is precisely this distinction between a “disclosure right” and a “trial right,” as well as the location of Brady in the realm of criminal procedure—in contradistinction to evidence law—that exemplifies the rigid and deeply ingrained trial-centric architecture of evidentiary doctrine. This Article seeks to interrogate this “division of labor” between evidence law and criminal procedure, exposing it as neither natural nor inevitable, but as a historically manufactured framework that essentially confines evidence law to the stage and formalities of trial. See infra Part I. It is this foundational assumption, that evidence law properly concerns only the regulated drama of the courtroom, that this Article aims to unsettle and ultimately transcend by extending evidentiary principles to the plea stage, where the most determinative decisions concerning conviction and punishment currently occur. See supra note 12 (detailing the dominance of plea bargaining in the current criminal justice system).Show More consider the not infrequent scenario in which law enforcement obtains evidence without a valid warrant or elicits a confession through problematic interrogation tactics.14 14.See Laurie Magid, Deceptive Police Interrogation Practices: How Far Is Too Far?, 99 Mich. L. Rev. 1168, 1168 (2001) (“Virtually all interrogations—or at least virtually all successful interrogations—involve some deception.”); Deborah Young, Unnecessary Evil: Police Lying in Interrogations, 28 Conn. L. Rev. 425, 425–26 (1996) (observing that lies to induce confessions are commonly reported and discussing some situations in which police avoid getting a proper warrant).Show More Rather than risking challenges to the evidence’s admissibility and the exposure of the unlawful conduct at trial or during pre-trial suppression hearings, prosecutors may offer attractive plea deals.15 15.See Inga Ivsan, To Plea or Not to Plea: How Plea Bargains Criminalize the Right to Trial and Undermine Our Adversarial System of Justice, 39 N.C. Cent. L. Rev. 135, 137 & n.9 (2017) (citing James F. Parker, Plea Bargaining, 1 Am. J. Crim. L. 187, 204 (1972) (observing that prosecutors may offer especially favorable plea deals to insulate constitutionally defective evidence of questionable admissibility from judicial scrutiny)).Show More Defendants, especially those facing severe penalties, may feel compelled to accept such deals, waiving the opportunity to effectively review the evidence against them.16 16.See id. at 137 (“A defendant arrested on the basis of illegally obtained evidence, and facing the threat of significant jail time, may be pressured to accept a plea agreement without having had any opportunity to review evidence meaningfully.”); id. at 145 (“The plea bargain process enables prosecutors to act on what would otherwise be inadmissible evidence at trial . . . .”).Show More This dynamic means that the exclusionary rule, rather than serving as a robust constitutional safeguard, becomes a “sliding scale of constitutionality,”17 17.Parker, supra note 15, at 205.Show More calibrated more by prosecutorial leverage at plea bargaining than by legal standards and judicial scrutiny.

The trial-centric orientation of evidence law, which treats the trial as the locus of evidentiary regulation and as the primary site of its application,18 18.In the words of Michael Pardo, “The law of evidence regulates the admissibility, the permissible uses, and (to a lesser extent) the weight of evidence in civil and criminal trials.” Michael S. Pardo, Some Remarks on the Importance of Evidence Outside of Trials, 36 Rev. Litig. 443, 443 (2016) (emphasis added).Show More creates a fundamental disconnect between legal doctrine and the realities of the criminal justice system. Such trial fixation reinforces an outdated model of evidence law, one premised on the now-fictional notion that trials remain the central venue of criminal case disposition.19 19.See, e.g., Russell M. Gold, Power Over Procedure, 57 Wake Forest L. Rev. 51, 113 (2022) (“Defendants need not have robust opportunities to discover documentary evidence against them pretrial or depose witnesses, including their accusers, because trial provides the core protection for defendants, the story goes.” (footnote omitted)).Show More The scenarios discussed above highlight the urgent need to rethink this structure and adapt it to a legal landscape where convictions are overwhelmingly secured outside the trial setting.20 20.See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 87 (rev. ed. 2011) (“Nearly all criminal cases are resolved through plea bargaining . . . .”); supra note 12.Show More Absent such adaptation, the power of evidentiary safeguards risks vanishing alongside the trial itself.

More than a quarter of a century ago, Mirjan Damaška diagnosed a fundamental crisis in the world of evidence law. In his seminal book Evidence Law Adrift, he situated the institution of evidence law within the realm of trial.21 21.Mirjan R. Damaška, Evidence Law Adrift 4 (1997) [hereinafter Damaška, Evidence Law Adrift] (identifying the jury trial, temporal concentration of proceedings, and adversarial factfinding as the foundations sustaining common law rules of evidence).Show More Observing the steady decline of courtroom proceedings and fundamental trial elements, Damaška identified “currents of change . . . sweeping” evidence law from its traditional moorings.22 22.Id. at 6.Show More He argued that, in a post-trial world, the institution of evidence law has been “deprived of a convincing theoretical basis,”23 23.Id. at 142.Show More calling into question its increasingly untethered role.24 24.In Damaška’s words, evidence rules are in “danger of becoming antiquated period pieces, intellectual curiosa confined to an oubliette in the castle of justice.” Id. For a similar account of Damaška’s argument, along with a rebuttal that seeks to sever the link he draws between the decline of trials and the erosion of evidence law, see Samuel R. Gross, Law in the Backwaters: A Comment on Mirjan Damaška’s Evidence Law Adrift, 49 Hastings L.J. 369, 369–71 (1998).Show More This Article heeds Damaška’s invitation, not by contesting the relevance of evidence law in an era of vanishing trials, but by challenging the trial-centric paradigm that has long shaped its contours and evolution. It advocates for a radical reimagining of evidence law through its proposed reorganization around pleas and plea bargaining (hereinafter referred to as the pre-plea stage).

The Article proceeds as follows. Part I traces the historical and jurisprudential foundations underlying evidence law’s trial-centricity, locating them in three places: (1) evidence law’s very emergence as a legal institution in the Anglo-American world, (2) against the backdrop of a functional dichotomy between investigation and adjudication, and (3) within the corresponding diminishment of the fact-finder’s investigative capacities. This transformation was catalyzed by two historical developments: the reform of the jury system in the sixteenth and seventeenth centuries and the ascendancy of the adversarial trial in the eighteenth and nineteenth centuries. This Part demonstrates how these historical contingencies delineated the boundaries of evidence law and established trial as its primary site—a framework that persists to this day, continuing to limit our legal imagination and to shape both legal doctrine and scholarly discourse.

Part II offers a descriptive account of the decline of criminal trials in the United States, tracing the rise of plea bargaining to the post-1960s explosion in criminal caseloads and to the doctrinal entrenchment of pleas in Santobello v. New York.25 25.404 U.S. 257, 260 (1971).Show More The transformation of plea bargaining from an informal prosecutorial practice into the primary mechanism for criminal case resolution effectively collapsed the structural and functional divide between investigation and adjudication.

Part III is dedicated to the normative argument. It begins by challenging the common wisdom that the (re)consolidation of adjudicative and investigative capacities in the hands of the prosecutor under plea bargaining signifies a regression to inquisitorial logic and a reversion to the legal environment that predated the emergence of evidence law as an institutional framework in the Anglo-American world. Instead, this Part shows that plea bargaining radically intensifies adversarialism, amplifying partisan advocacy and thereby reinforcing, rather than undermining, the rationale for evidentiary regulation. The discussion calls for extending core evidentiary constructs—such as admissibility, sufficiency, confrontation, cross-examination, and testimony—to the pre-plea stage, where decisions about guilt and punishment are effectively made. This Part concludes by proactively addressing four principal objections that may be leveled against extending evidentiary regulation beyond the courtroom: (1) that rules of evidence applied at trial already effectively regulate the pre-plea stage, given that plea bargains are negotiated in the “shadow of trial”; (2) that trials continue to function as the principal sites of adjudication even within a plea-dominated system by virtue of the formal in-court confession that concludes the plea process; (3) the mirror-image claim that pleas are voluntary agreements rather than factfinding exercises, so their legitimacy derives from the defendant’s consent, not from evidentiary integrity; and (4) that extending evidentiary regulation to the pre-plea stage risks generating deep structural distortions by altering the distribution of error across the criminal justice system, reshaping the incentives of key players, and placing additional pressure on the system’s (already strained) judicial economy.

Part IV is prescriptive in nature and translates the normative framework into a set of concrete doctrinal proposals. It outlines evidentiary safeguards specifically tailored for the pre-plea phase, offering a vision of evidence law reimagined beyond the trial’s traditional boundaries. These proposals include: (1) Mandatory pre-plea evidentiary hearings modeled on prevailing preliminary and suppression hearings but repositioned to occur before plea rather than before trial. These hearings are intended to ensure that plea agreements do not insulate unlawfully obtained evidence and to enforce a minimal standard of proof for a negotiated conviction. (2) Extension of Crawford confrontation rights to the pre-plea stage,26 26.The idea of extending evidentiary protections beyond trial has been compellingly articulated by William Ortman in Confrontation in the Age of Plea Bargaining, 121 Colum. L. Rev. 451, 453 (2021) [hereinafter Ortman, Confrontation]. Ortman’s proposal is discussed in detail in Part IV.Show More allowing defendants to depose and cross-examine key witnesses prior to pleading. This measure would ensure that the factual foundations of negotiated convictions are subjected to meaningful adversarial testing. (3) Extension of Brady obligations to mandate that the prosecution’s entire case file be disclosed to the accused before any plea agreement can be finalized. In essence, this proposal suggests that all relevant evidence be “admitted” into the plea bargaining process, where it serves as the currency shaping the terms of agreement.

  1.  Franz Kafka, The Trial 40 (Mike Mitchell trans., Oxford Univ. Press 2009) (1925). ↑
  2.  373 U.S. 83, 87 (1963). In 1972, the Supreme Court broadened this rule to include some impeachment material. See Giglio v. United States, 405 U.S. 150, 154 (1972). ↑
  3.  30 F.4th 276 (5th Cir. 2022), cert. denied, 143 S. Ct. 486 (2022). ↑
  4.  Id. at 282 & n.9 (Higginbotham, J., concurring) (presenting the circuit split on this issue). ↑
  5.  See Eza Bella Zakirova, Is It Rational or Not?: When Innocents Plead Guilty in Child Sex Abuse Cases, 82 Alb. L. Rev. 815, 833 n.102 (2019) (detailing the factual background of the Troy Mansfield case). ↑
  6.  Id. ↑
  7.  Ex parte Mansfield, No. 92-435-K277A (Tex. Jud. Dist. Ct. Jan. 19, 2016). ↑
  8.  Although the court in Mansfield did not decide whether there had been a Brady violation since Mansfield’s case never reached trial, it seems uncontroversial to conclude that the prosecution here withheld material exculpatory evidence upon request. See Mansfield, 30 F.4th at 277–78; Brady v. Maryland, 373 U.S. 83, 87–88 (1963); see also Ex parte Mansfield, slip op. at 5 (holding, independently and by State concession, that the prosecution’s withholding of the victim’s interview notes violated Brady); Sela Brown, Brady in the Plea Era: How U.S. v. Ruiz Should Be Reconstrued in Light of Missouri v. Frye and Lafler v. Cooper, 27 Berkeley J. Crim. L. 1, 3 (2022) (discussing the government’s affirmative duty to share exculpatory and impeachment evidence with the defendant under Brady v. Maryland). ↑
  9.  Alvarez v. City of Brownsville, 904 F.3d 382, 392 (5th Cir. 2018) (en banc). There are federal courts of appeals that have recognized prosecutors’ constitutional obligation to reveal exculpatory evidence to defendants before a guilty plea. See Laura Falk, Note, Brady Rights in a System of Pleas: Analyzing the Ninth Circuit’s “Apparent Position,” 67 Ariz. L. Rev. 241, 246–51 (2025); Michael Nasser Petegorsky, Note, Plea Bargaining in the Dark: The Duty to Disclose Exculpatory Brady Evidence During Plea Bargaining, 81 Fordham L. Rev. 3599, 3625–31 (2013). ↑
  10.  Mansfield, 30 F.4th at 281; see also Matthew v. Johnson, 201 F.3d 353, 361–62 (5th Cir. 2000) (stating that a Brady violation requires a trial); United States v. Conroy, 567 F.3d 174, 178 (5th Cir. 2009) (per curiam) (noting that there can be no Brady violation with a guilty plea). ↑
  11.  Petition for a Writ of Certiorari at 23–25, Mansfield v. Williamson County, 143 S. Ct. 486 (2022) (No. 22-186); Brief of Amici Curiae Law Professors in Support of Petitioner Troy Mansfield at 6–16, Mansfield, 143 S. Ct. 486 (No. 22-186); Brief of Amicus Curiae Professor Colin Miller in Support of Petitioner at 13–14, Mansfield, 143 S. Ct. 486 (No. 22-186); Brief of the Cato Institute as Amicus Curiae Supporting Petitioner at 13–14, Mansfield, 143 S. Ct. 486 (No. 22-186). ↑
  12.  See Montré D. Carodine, Keeping It Real: Reforming the “Untried Conviction” Impeachment Rule, 69 Md. L. Rev. 501, 516 (2010) (noting based on data from 2004 that ninety-seven percent of felony convictions in the seventy-five most populous counties in the United States were obtained through guilty pleas (citing Tracey Kyckelhahn & Thomas H. Cohen, Bureau of Just. Stat., U.S. Dep’t of Just., Felony Defendants in Large Urban Counties, 2004, at 1, 3 (2008), https://static.prisonpolicy.org/scans/bjs/fdluc04.pdf [https://pe‌rma.cc/P4MD-8EKP])); see also Darryl K. Brown, Response, What’s the Matter with Kansas—and Utah?: Explaining Judicial Interventions in Plea Bargaining, 95 Tex. L. Rev. See Also 47, 62 (2017) (noting that some jurisdictions resolved ninety-nine percent of criminal cases with plea agreements). ↑
  13.  Brady’s disclosure obligations are firmly established within criminal procedure, so their invocation as an example of evidence law’s trial-centricity may prompt hesitation. Yet it is precisely this distinction between a “disclosure right” and a “trial right,” as well as the location of Brady in the realm of criminal procedure—in contradistinction to evidence law—that exemplifies the rigid and deeply ingrained trial-centric architecture of evidentiary doctrine. This Article seeks to interrogate this “division of labor” between evidence law and criminal procedure, exposing it as neither natural nor inevitable, but as a historically manufactured framework that essentially confines evidence law to the stage and formalities of trial. See infra Part I. It is this foundational assumption, that evidence law properly concerns only the regulated drama of the courtroom, that this Article aims to unsettle and ultimately transcend by extending evidentiary principles to the plea stage, where the most determinative decisions concerning conviction and punishment currently occur. See supra note 12 (detailing the dominance of plea bargaining in the current criminal justice system). ↑
  14.  See Laurie Magid, Deceptive Police Interrogation Practices: How Far Is Too Far?, 99 Mich. L. Rev. 1168, 1168 (2001) (“Virtually all interrogations—or at least virtually all successful interrogations—involve some deception.”); Deborah Young, Unnecessary Evil: Police Lying in Interrogations, 28 Conn. L. Rev. 425, 425–26 (1996) (observing that lies to induce confessions are commonly reported and discussing some situations in which police avoid getting a proper warrant). ↑
  15.  See Inga Ivsan, To Plea or Not to Plea: How Plea Bargains Criminalize the Right to Trial and Undermine Our Adversarial System of Justice, 39 N.C. Cent. L. Rev. 135, 137 & n.9 (2017) (citing James F. Parker, Plea Bargaining, 1 Am. J. Crim. L. 187, 204 (1972) (observing that prosecutors may offer especially favorable plea deals to insulate constitutionally defective evidence of questionable admissibility from judicial scrutiny)). ↑
  16.  See id. at 137 (“A defendant arrested on the basis of illegally obtained evidence, and facing the threat of significant jail time, may be pressured to accept a plea agreement without having had any opportunity to review evidence meaningfully.”); id. at 145 (“The plea bargain process enables prosecutors to act on what would otherwise be inadmissible evidence at trial . . . .”). ↑
  17.  Parker, supra note 15, at 205. ↑
  18.  In the words of Michael Pardo, “The law of evidence regulates the admissibility, the permissible uses, and (to a lesser extent) the weight of evidence in civil and criminal trials.” Michael S. Pardo, Some Remarks on the Importance of Evidence Outside of Trials, 36 Rev. Litig. 443, 443 (2016) (emphasis added). ↑
  19.  See, e.g., Russell M. Gold, Power Over Procedure, 57 Wake Forest L. Rev. 51, 113 (2022) (“Defendants need not have robust opportunities to discover documentary evidence against them pretrial or depose witnesses, including their accusers, because trial provides the core protection for defendants, the story goes.” (footnote omitted)). ↑
  20.  See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 87 (rev. ed. 2011) (“Nearly all criminal cases are resolved through plea bargaining . . . .”); supra note 12. ↑
  21.  Mirjan R. Damaška, Evidence Law Adrift 4 (1997) [hereinafter Damaška, Evidence Law Adrift] (identifying the jury trial, temporal concentration of proceedings, and adversarial factfinding as the foundations sustaining common law rules of evidence). ↑
  22.  Id. at 6. ↑
  23.  Id. at 142. ↑
  24.  In Damaška’s words, evidence rules are in “danger of becoming antiquated period pieces, intellectual curiosa confined to an oubliette in the castle of justice.” Id. For a similar account of Damaška’s argument, along with a rebuttal that seeks to sever the link he draws between the decline of trials and the erosion of evidence law, see Samuel R. Gross, Law in the Backwaters: A Comment on Mirjan Damaška’s Evidence Law Adrift, 49 Hastings L.J. 369, 369–71 (1998). ↑
  25.  404 U.S. 257, 260 (1971). ↑

  26.  The idea of extending evidentiary protections beyond trial has been compellingly articulated by William Ortman in Confrontation in the Age of Plea Bargaining, 121 Colum. L. Rev. 451, 453 (2021) [hereinafter Ortman, Confrontation]. Ortman’s proposal is discussed in detail in Part IV. ↑

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