Article

[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. ↑