Home Slideshow

Brady’s Shadow

Introduction

“[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”1 1.Brady v. Maryland, 373 U.S. 83, 87 (1963).Show More With these words, Brady v. Maryland became what is widely heralded as the “canonical” case governing prosecutorial disclosure.2 2.William J. Stuntz, The Political Constitution of Criminal Justice, 119 Harv. L. Rev. 780, 789–90, 790 n.52 (2006) (“The canonical case [on prosecutorial disclosure] is Brady v. Maryland . . . .”). See generally Colin Starger, Expanding Stare Decisis: The Role of Precedent in the Unfolding Dialectic of Brady v. Maryland, 46 Loy. L.A. L. Rev. 77, 87, 96 (2012) (arguing that Brady is a “super-precedent” due in part to its “canonical formulation”).Show More Over sixty years later, Brady wields extraordinary symbolic authority. Scholars hail it as one of the Warren Court’s most iconic decisions: a “potentially revolutionary”3 3.Stephanos Bibas, Brady v. Maryland: From Adversarial Gamesmanship Toward the Search for Innocence?, in Criminal Procedure Stories 129, 129 (Carol S. Steiker ed., 2006) (“Brady marked a potentially revolutionary shift from traditionally unfettered adversarial combat toward a more inquisitorial, innocence-focused system.”). But see id. at 154 (concluding that Brady’s “important symbol” proved “in some ways a hollow one”).Show More guarantee of fair play and upstanding prosecutorial conduct that one leading casebook describes as a “shot heard ‘round the world.’”4 4.Joshua Dressler, George C. Thomas III & Daniel S. Medwed, Criminal Procedure: Principles, Policies, and Perspectives 956 (8th ed. 2023).Show More The numbers alone point to Brady’s towering influence: cited nearly five times as often as Brown v. Board of Education,5 5.347 U.S. 483 (1954).Show More its frequency of invocation in judicial opinions rivals that of Miranda v. Arizona.6 6.384 U.S. 436 (1966); Brandon L. Garrett, Adam M. Gershowitz & Jennifer Teitcher, The Brady Database, 114 J. Crim. L. & Criminology 185, 189 n.14 (2024) (finding over 132,000 citations to Brady).Show More Even the fiercest critics of the trajectory that Brady jurisprudence has followed since its titular decision venerate the original landmark’s supposed “grand promise” as a preface to the lament soon to follow that Brady’s supposed promise has given way to a “grim reality.”7 7.Bennett L. Gershman, Reflections on Brady v. Maryland, 47 S. Tex. L. Rev. 685, 686, 709 (2006); see also id. at 727–28 (painting a “stark” contrast between Brady’s ideals and its failed actualization, and calling for the restoration of “the promise of Brady”).Show More This juxtaposition—celebrating Brady’s transformative potential while cataloging its actual deficits—has become so routine as to constitute an obligatory trope in Brady reform discourse.8 8.I count myself among the prime offenders. See Justin Murray, Prejudice-Based Rights in Criminal Procedure, 168 U. Pa. L. Rev. 277, 280 (2020) (calling Brady a “grand symbol[] of our collective commitment to fairness” that has “utterly failed in practice to make good on [this] promise[]”). My one consolation is that I stand in good company. For additional examples and analysis of this commonplace rhetorical maneuver in Brady reform discussions, see infra notes 62–65 and accompanying text.Show More

Despite the reverence Brady commands, scholars deliver an unsparing verdict on its real-world performance. One prominent commentator aptly (if half-jokingly) diagnosed Brady’s “[b]unch of [f]laws,”9 9.Daniel S. Medwed, Brady’s Bunch of Flaws, 67 Wash. & Lee L. Rev. 1533 (2010).Show More distilling into plain terms what volumes of scholarship elaborate. The materiality standard epitomizes Brady’s dysfunction: prosecutors must divine what evidence might become outcome-determinative at some future trial—a speculative, bias-prone exercise that invites evidence suppression.10 10.For a small sampling of the voluminous critical commentary regarding the materiality standard, see, for example, Brandon L. Garrett & Adam M. Gershowitz, The Brady Materiality Standard, 78 Stan. L. Rev. 303, 303 (2026); Tom Stacy & Kim Dayton, Rethinking Harmless Constitutional Error, 88 Colum. L. Rev. 79, 106–07, 124–25 (1988); Christopher Deal, Note, Brady Materiality Before Trial: The Scope of the Duty to Disclose and the Right to a Trial by Jury, 82 N.Y.U. L. Rev. 1780 (2007); see also infra notes 45–46, 50 and accompanying text.Show More Brady imposes no meaningful protection at the plea stage, which, in a system where adjudication overwhelmingly takes place through pleas, means Brady affords no meaningful protection at all.11 11.See, e.g., Kathleen Ridolfi, Tiffany M. Joslyn & Todd H. Fries, Nat’l Ass’n of Crim. Def. Laws., Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases 24–28 (2014); Corinna Barrett Lain, Accuracy Where It Matters: Brady v. Maryland in the Plea Bargaining Context, 80 Wash. U. L.Q. 1, 49 (2002); see also infra notes 48, 51–52 and accompanying text; cf. Miriam H. Baer, Timing Brady, 115 Colum. L. Rev. 1, 1–2 (2015) (critiquing the Brady doctrine’s inattention to timing and suggesting modest reforms requiring prosecutors to provide partial but early disclosures).Show More Its inapplicability to incriminating information arbitrarily excludes most information the government possesses—information the defense needs to see in order to mount a thorough investigation.12 12.See, e.g., Bibas, supra note 3, at 146–48; Daniel S. McConkie, Structuring Pre-Plea Criminal Discovery, 107 J. Crim. L. & Criminology 1, 13–19 (2017); Ion Meyn, Discovery and Darkness: The Information Deficit in Criminal Disputes, 79 Brook. L. Rev. 1091, 1102–03 (2014); see also infra note 53 and accompanying text (discussing additional sources analyzing Brady’slimits in reaching only exculpatory and not inculpatory evidence).Show More Enforcement is lethargic.13 13.See, e.g., Shima Baradaran Baughman, Subconstitutional Checks, 92 Notre Dame L. Rev. 1071, 1096–99 (2017); Andrew Manuel Crespo, Systemic Facts: Toward Institutional Awareness in Criminal Courts, 129 Harv. L. Rev. 2049, 2087–89 (2016); Brian M. Murray, Jon B. Gould & Paul Heaton, Qualifying Prosecutorial Immunity Through Brady Claims, 107 Iowa L. Rev. 1107, 1116–26 (2022); Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger, 65 N.C. L. Rev. 693, 696–97 (1987); see also infra note 55 and accompanying text (observing that reversal, civil liability, and professional discipline each independently fail to adequately redress and deter Brady violations).Show More These interlocking failures (among others yet to be mentioned) point to an underlying design flaw: Brady deputizes prosecutors as gatekeepers of their own disclosure obligations, demanding self-policing from adversaries who are determined to convict. Thus, a strong scholarly consensus has emerged that condemns Brady’s doctrinal specifications and implementation for abandoning the decision’s founding ideals. This condemnation, however, betrays its own blindness: the scholarly imagination mourns Brady’s lost promise rather than recognizing the promise itself as an illusion.

If Brady has come to enjoy, as one scholar describes it, “a special place in the constellation of Supreme Court decisions protecting a criminal defendant’s right to a fair trial,”14 14.Gershman, supra note 7, at 685.Show More then this Article’s aim is to tear it from that pedestal. Brady has not merely failed as constitutional doctrine (though it has). It operates as both a trap and a shadow, constraining reform possibilities across the legal landscape. The trap springs from the seductive mythology just described: Brady’s false promise has beguiled successive generations of scholars and reformers into renovating a structurally unsound doctrine rather than building genuine alternatives to the prosecutor’s informational monopoly.

Yet Brady’s pernicious influence reaches further still. This Article names and theorizes what I call Brady’s shadow—the doctrine’s unappreciated power to colonize domains far beyond its home in constitutional due process. Through converging investigative methods, the Article constructs the first comprehensive account of Brady’s reach. Surveys of disclosure rules across all fifty states and the territories show how readily courts grind down facially broader statutory and ethical disclosure mandates into mere codifications of existing Brady law. Doctrinal analysis traces how concepts drawn from Brady cases degrade seemingly unrelated areas of both state and federal constitutional law. Examination of legal education and bar preparation materials demonstrates that Brady looms large in prosecutors’ professional formation. Evidence culled from existing scholarship shows that well-meaning prosecutorial training programs at times convert Brady’s minimal constitutional baseline into a normative default, and also that prosecutors at times weaponize Brady to defeat legal reform measures in the political arena. Only by assembling these disparate strands of proof does the full pattern emerge: Brady’s shadow systematically—not always, but with vexing regularity—distorts statutory interpretation, stunts constitutional development, misdirects professional formation, and legitimates the very informational asymmetries it purported to rectify. Mapping this shadow helps explain why decades of incremental reform efforts have so often fallen short. It also illuminates paths forward that Brady’s dominance has long obscured.

The Article’s first Part dissects the mechanics of what it terms Brady’s trap. It begins by surveying decades of scholarship documenting Brady’s failure: the hopelessly unworkable materiality standard, the absence of pretrial disclosure duties, the systematic underenforcement, and more. But this catalog of dysfunction merely sets the stage. The deeper puzzle is this: Why does the legal profession remain entranced by a doctrine whose failures are so manifest? Part of the answer, as Part I elaborates, lies in Brady’s paradoxical appeal to adverse stakeholders, strange bedfellows. For those content with current arrangements, it provides deceptive reassurance that constitutional safeguards already protect defendants adequately. For reformers, it perpetuates the false hope that better enforcement or modest adjustments might finally deliver the fairness Brady promised but has yet to deliver. Brady thus serves to cement the prosecutor’s monopoly over information and evidence while staging just enough due process theater to deflect demands for structural reform.15 15.While cutting against the grain of mainstream Brady scholarship, the argument developed in Part I builds on work by Eugene Cerruti, Ion Meyn, and Scott Sundby, who have each made the case in various ways that Brady does not just fail as a constitutional doctrine but has also legitimated criminal adjudication’s informational inequities. See infra notes 59–61 and accompanying text. More generally, the Article contributes to a remarkably underdeveloped body of scholarship that brings to bear ideas and methods from critical legal theory on larger-than-life Warren Court icons such as Miranda v. Arizona, see Louis Michael Seidman, Brown and Miranda, 80 Calif. L. Rev. 673 (1992), and Gideon v. Wainwright, see Paul D. Butler, Poor People Lose: Gideon and the Critique of Rights, 122 Yale L.J. 2176 (2013).Show More

Part II, the Article’s empirical and analytical backbone, traces Brady’s shadow through many different domains of legal practice and thought. The investigation opens by exploring Brady’s impact on statutory disclosure law, beginning with statutes requiring prosecutors to disclose exculpatory evidence to the defense. A nationwide survey of these provisions highlights the doctrine’s long reach. Ten states explicitly drafted their rules to mirror Brady, while courts in twelve others imported Brady’s restrictions into statutes whose texts seemingly demand broader disclosure. Even ambitious open-file reforms can succumb to Brady’s influence. As discussed below, Texas’s Michael Morton Act sought to revolutionize criminal discovery in the state, presumptively opening prosecutors’ entire files to the defense. Yet because drafters included the word “material” in defining what the prosecutor had to disclose, courts spent over half a decade forcing this potentially transformative statute back into Brady’s constricting mold. And Brady’s influence extends beyond legislative drafting choices and judicial interpretation into the political arena. When lawmakers propose expanded disclosure requirements, prosecutors at times beat back these measures by brandishing their Brady compliance as evidence that the system already protects defendants adequately.

Brady also degrades constitutional development—and not just in the domain of federal due process where Brady originated. Ineffective assistance of counsel doctrine mechanically incorporated Brady’s materiality test in Strickland v. Washington,16 16.466 U.S. 668 (1984).Show More giving birth to Strickland’s infamous prejudice prong that kicks relief out of reach for countless defendants represented by underperforming lawyers in unfair proceedings. The Confrontation and Compulsory Process Clauses—enumerated rights with independent textual foundations serving ends different from those of general due process protections—atrophy unused as discovery mechanisms, casualties of the judiciary’s faith that Brady says all the Constitution has to say about prosecutorial secrecy. State courts compound this abdication: tasked with interpreting fifty different state constitutions that might have generated innovative and promising experiments in disclosure law, they instead have by and large chosen to march in lockstep behind Brady’s tattered banner.

Professional formation completes the picture, showing how Brady shapes legal consciousness from law school onward. Several market-leading casebooks (though not all) enshrine Brady as the centerpiece of criminal discovery, probing its intricacies while treating alternative discovery frameworks as afterthoughts. The bar exam reinforces this hierarchy, focusing entirely on constitutional disclosure doctrine to the exclusion of other mechanisms. Ethics standards—another ingredient in shaping professional identities—likewise bear Brady’s imprint: this Article’s second national survey shows that the high courts of six states have construed broadly worded ethical mandates to achieve little more than ratifying Brady’s meager demands. And within prosecutors’ offices, many well-intentioned bureaucratic reforms—disclosure policies, trainings, and other administrative techniques aimed at fostering Brady compliance—often have the effect of further tightening Brady’s grip.

From law schools to courtrooms, from statutes to constitutional doctrine, Brady’s influence proves both pervasive and pernicious. Through these mutually reinforcing mechanisms, Brady persistently bends American criminal discovery toward its own impoverished model, transforming defective constitutional floors into the normative standards that too often govern legal practice.

Seeing Brady’s shadow for what it is reveals paths forward, as Part III details. For legislators, one clear prescription is surprisingly straightforward, yet no less effective for its simplicity: eschew Brady’s vocabulary, especially “material,” when drafting disclosure rules. Judges, too, can help dampen Brady’s outsized influence by practicing interpretive fidelity, construing each rule—whether it be a statute, an ethics standard, or a constitutional provision distinct from federal due process—according to its own text, purpose, and conventional interpretive modalities rather than transplanting Brady concepts born of judicial anxieties that are at their peak when it comes to unenumerated due process rights. More broadly, Part III begins to envision legal education that decenters Brady, prosecutorial administration that aspires to something more than technical compliance with the Constitution, and academic research and reform efforts that explore the myriad possibilities that Brady’s dominance has left fallow.

This Article’s critique should not be read as denigrating the work scholars are currently pursuing within Brady’s conceptual boundaries,17 17.Some of my own past scholarship, in fact, has called for various Brady reforms; I continue to believe these reforms would achieve some good. See Murray, supra note 8, at 318–27; Justin Murray, Policing Procedural Error in the Lower Criminal Courts, 89 Fordham L. Rev. 1411, 1464–66 (2021).Show More nor as inviting courts to overrule Brady or further slash Brady’s already feeble protections. There is plenty of vital research afoot that explores, among other things, adapting Brady to the digital age,18 18.See, e.g., Andrew Guthrie Ferguson, Big Data Prosecution and Brady, 67 UCLA L. Rev. 180 (2020); Brian Chen, Note, Big Data and Brady Disclosures, 99 N.Y.U. L. Rev. 1754 (2024).Show More ensuring Brady information flows reliably from police agencies to prosecutors,19 19.See, e.g., Jonathan Abel, Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team, 67 Stan. L. Rev. 743 (2015); Stanley Z. Fisher, The Prosecutor’s Ethical Duty to Seek Exculpatory Evidence in Police Hands: Lessons from England, 68 Fordham L. Rev. 1379 (2000).Show More designing internal bureaucratic reforms to bolster Brady compliance,20 20.See, e.g., Lissa Griffin & Daisy Mason, The Prosecutor in the Mirror: Conviction Integrity Units and Brady Claims, 55 Loy. L.A. L. Rev. 1005 (2022); Rachel Moran, Brady Lists, 107 Minn. L. Rev. 657 (2022); Barry Scheck, Professional and Conviction Integrity Programs: Why We Need Them, Why They Will Work, and Models for Creating Them, 31 Cardozo L. Rev. 2215 (2010); Ellen Yaroshefsky, Foreword: New Perspectives on Brady and Other Disclosure Obligations: What Really Works?, 31 Cardozo L. Rev. 1943 (2010).Show More enhancing judicial oversight of the disclosure process,21 21.See, e.g., Darryl K. Brown, The Decline of Defense Counsel and the Rise of Accuracy in Criminal Adjudication, 93 Calif. L. Rev. 1585, 1632–42 (2005); Daniel S. McConkie, The Local Rules Revolution in Criminal Discovery, 39 Cardozo L. Rev. 59 (2017); see also infra notes 246, 264 (collecting additional sources advocating greater judicial supervision of the Brady disclosure process).Show More and tracing empirical patterns in Brady litigation and prosecutorial administration.22 22.See Ridolfi et al., supra note 11; Garrett & Gershowitz, supra note 10; Garrett et al., supra note 6; Jon B. Gould, Samantha L. Senn, Belén Lowrey-Kinberg & Linda Phiri, Mapping the Path of Brady Violations: Typologies, Causes & Consequences in Erroneous Conviction Cases, 71 Syracuse L. Rev. 1061 (2021); Samantha Luna & Allison D. Redlich, The Decision to Provide Discovery: An Examination of Policies and Guilty Pleas, 17 J. Experimental Criminology 305 (2021); Jennifer Mason McAward, Understanding Brady Violations, 78 Vand. L. Rev. 875 (2025); Murray et al., supra note 13, at 1135–44.Show More Especially where political or institutional realities preclude deeper structural change, incremental improvements within Brady’s parameters are sorely needed. But we should not mistake necessity for virtue. The legal profession has poured extraordinary intellectual resources into refining a doctrine that was never built to succeed. After tracing the damage Brady has caused across numerous domains, the pattern becomes undeniable: a doctrine that promises procedural fairness instead reinforces prosecutorial control over information. Ultimately, my hope here is not just to render Brady’s trap and shadow legible but, more than that, to highlight escape routes that have so far eluded our grasp.

  1.  Brady v. Maryland, 373 U.S. 83, 87 (1963). ↑

  2.  William J. Stuntz, The Political Constitution of Criminal Justice, 119 Harv. L. Rev. 780, 789–90, 790 n.52 (2006) (“The canonical case [on prosecutorial disclosure] is Brady v. Maryland . . . .”). See generally Colin Starger, Expanding Stare Decisis: The Role of Precedent in the Unfolding Dialectic of Brady v. Maryland, 46 Loy. L.A. L. Rev. 77, 87, 96 (2012) (arguing that Brady is a “super-precedent” due in part to its “canonical formulation”). ↑

  3.  Stephanos Bibas, Brady v. Maryland: From Adversarial Gamesmanship Toward the Search for Innocence?, in Criminal Procedure Stories 129, 129 (Carol S. Steiker ed., 2006) (“Brady marked a potentially revolutionary shift from traditionally unfettered adversarial combat toward a more inquisitorial, innocence-focused system.”). But see id. at 154 (concluding that Brady’s “important symbol” proved “in some ways a hollow one”). ↑

  4.  Joshua Dressler, George C. Thomas III & Daniel S. Medwed, Criminal Procedure: Principles, Policies, and Perspectives 956 (8th ed. 2023). ↑

  5.  347 U.S. 483 (1954). ↑

  6.  384 U.S. 436 (1966); Brandon L. Garrett, Adam M. Gershowitz & Jennifer Teitcher, The Brady Database, 114 J. Crim. L. & Criminology 185, 189 n.14 (2024) (finding over 132,000 citations to Brady). ↑

  7.  Bennett L. Gershman, Reflections on Brady v. Maryland, 47 S. Tex. L. Rev. 685, 686, 709 (2006); see also id. at 727–28 (painting a “stark” contrast between Brady’s ideals and its failed actualization, and calling for the restoration of “the promise of Brady”). ↑

  8.  I count myself among the prime offenders. See Justin Murray, Prejudice-Based Rights in Criminal Procedure, 168 U. Pa. L. Rev. 277, 280 (2020) (calling Brady a “grand symbol[] of our collective commitment to fairness” that has “utterly failed in practice to make good on [this] promise[]”). My one consolation is that I stand in good company. For additional examples and analysis of this commonplace rhetorical maneuver in Brady reform discussions, see infra notes 62–65 and accompanying text. ↑

  9.  Daniel S. Medwed, Brady’s Bunch of Flaws, 67 Wash. & Lee L. Rev. 1533 (2010). ↑

  10.  For a small sampling of the voluminous critical commentary regarding the materiality standard, see, for example, Brandon L. Garrett & Adam M. Gershowitz, The Brady Materiality Standard, 78 Stan. L. Rev. 303, 303 (2026); Tom Stacy & Kim Dayton, Rethinking Harmless Constitutional Error, 88 Colum. L. Rev. 79, 106–07, 124–25 (1988); Christopher Deal, Note, Brady Materiality Before Trial: The Scope of the Duty to Disclose and the Right to a Trial by Jury, 82 N.Y.U. L. Rev. 1780 (2007); see also infra notes 45–46, 50 and accompanying text. ↑

  11.  See, e.g., Kathleen Ridolfi, Tiffany M. Joslyn & Todd H. Fries, Nat’l Ass’n of Crim. Def. Laws., Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases 24–28 (2014); Corinna Barrett Lain, Accuracy Where It Matters: Brady v. Maryland in the Plea Bargaining Context, 80 Wash. U. L.Q. 1, 49 (2002); see also infra notes 48, 51–52 and accompanying text; cf. Miriam H. Baer, Timing Brady, 115 Colum. L. Rev. 1, 1–2 (2015) (critiquing the Brady doctrine’s inattention to timing and suggesting modest reforms requiring prosecutors to provide partial but early disclosures). ↑

  12.  See, e.g., Bibas, supra note 3, at 146–48; Daniel S. McConkie, Structuring Pre-Plea Criminal Discovery, 107 J. Crim. L. & Criminology 1, 13–19 (2017); Ion Meyn, Discovery and Darkness: The Information Deficit in Criminal Disputes, 79 Brook. L. Rev. 1091, 1102–03 (2014); see also infra note 53 and accompanying text (discussing additional sources analyzing Brady’s limits in reaching only exculpatory and not inculpatory evidence). ↑

  13.  See, e.g., Shima Baradaran Baughman, Subconstitutional Checks, 92 Notre Dame L. Rev. 1071, 1096–99 (2017); Andrew Manuel Crespo, Systemic Facts: Toward Institutional Awareness in Criminal Courts, 129 Harv. L. Rev. 2049, 2087–89 (2016); Brian M. Murray, Jon B. Gould & Paul Heaton, Qualifying Prosecutorial Immunity Through Brady Claims, 107 Iowa L. Rev. 1107, 1116–26 (2022); Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger, 65 N.C. L. Rev. 693, 696–97 (1987); see also infra note 55 and accompanying text (observing that reversal, civil liability, and professional discipline each independently fail to adequately redress and deter Brady violations). ↑

  14.  Gershman, supra note 7, at 685. ↑

  15.  While cutting against the grain of mainstream Brady scholarship, the argument developed in Part I builds on work by Eugene Cerruti, Ion Meyn, and Scott Sundby, who have each made the case in various ways that Brady does not just fail as a constitutional doctrine but has also legitimated criminal adjudication’s informational inequities. See infra notes 59–61 and accompanying text. More generally, the Article contributes to a remarkably underdeveloped body of scholarship that brings to bear ideas and methods from critical legal theory on larger-than-life Warren Court icons such as Miranda v. Arizona, see Louis Michael Seidman, Brown and Miranda, 80 Calif. L. Rev. 673 (1992), and Gideon v. Wainwright, see Paul D. Butler, Poor People Lose: Gideon and the Critique of Rights, 122 Yale L.J. 2176 (2013). ↑

  16.  466 U.S. 668 (1984). ↑

  17.  Some of my own past scholarship, in fact, has called for various Brady reforms; I continue to believe these reforms would achieve some good. See Murray, supra note 8, at 318–27; Justin Murray, Policing Procedural Error in the Lower Criminal Courts, 89 Fordham L. Rev. 1411, 1464–66 (2021). ↑

  18.  See, e.g., Andrew Guthrie Ferguson, Big Data Prosecution and Brady, 67 UCLA L. Rev. 180 (2020); Brian Chen, Note, Big Data and Brady Disclosures, 99 N.Y.U. L. Rev. 1754 (2024). ↑

  19.  See, e.g., Jonathan Abel, Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team, 67 Stan. L. Rev. 743 (2015); Stanley Z. Fisher, The Prosecutor’s Ethical Duty to Seek Exculpatory Evidence in Police Hands: Lessons from England, 68 Fordham L. Rev. 1379 (2000). ↑

  20.  See, e.g., Lissa Griffin & Daisy Mason, The Prosecutor in the Mirror: Conviction Integrity Units and Brady Claims, 55 Loy. L.A. L. Rev. 1005 (2022); Rachel Moran, Brady Lists, 107 Minn. L. Rev. 657 (2022); Barry Scheck, Professional and Conviction Integrity Programs: Why We Need Them, Why They Will Work, and Models for Creating Them, 31 Cardozo L. Rev. 2215 (2010); Ellen Yaroshefsky, Foreword: New Perspectives on Brady and Other Disclosure Obligations: What Really Works?, 31 Cardozo L. Rev. 1943 (2010). ↑

  21.  See, e.g., Darryl K. Brown, The Decline of Defense Counsel and the Rise of Accuracy in Criminal Adjudication, 93 Calif. L. Rev. 1585, 1632–42 (2005); Daniel S. McConkie, The Local Rules Revolution in Criminal Discovery, 39 Cardozo L. Rev. 59 (2017); see also infra notes 246, 264 (collecting additional sources advocating greater judicial supervision of the Brady disclosure process). ↑

  22.  See Ridolfi et al., supra note 11; Garrett & Gershowitz, supra note 10; Garrett et al., supra note 6; Jon B. Gould, Samantha L. Senn, Belén Lowrey-Kinberg & Linda Phiri, Mapping the Path of Brady Violations: Typologies, Causes & Consequences in Erroneous Conviction Cases, 71 Syracuse L. Rev. 1061 (2021); Samantha Luna & Allison D. Redlich, The Decision to Provide Discovery: An Examination of Policies and Guilty Pleas, 17 J. Experimental Criminology 305 (2021); Jennifer Mason McAward, Understanding Brady Violations, 78 Vand. L. Rev. 875 (2025); Murray et al., supra note 13, at 1135–44. ↑

Unequal Enforcement of the Equal Time Rule: Late Night, Talk Radio, and the News Interview Exemption

Introduction

It is rare for the head of a regulatory agency like the Federal Communications Commission (“FCC”) to emerge as a central figure in popular and political discourse. But in his short time as FCC chair, Brendan Carr—through his public criticism of television shows and networks,1 1.As an FCC commissioner, two months before becoming chair, Carr falsely accused Saturday Night Live of violating the law by including a cameo appearance by Democratic presidential nominee Kamala Harris. See Emma Colton, FCC Commissioner Rips NBC Over Harris’ Last-Minute SNL Appearance: ‘Plainly Designed to Evade’ the Rules, FOX News (Nov. 3, 2024, at 13:53 ET), https://www.foxnews.com/politics/fcc-commissioner-rips‌-nbc-over-harris-last-minute-snl-appearance-plainly-designed-evade-rules [https://perma.cc/‌57D5-EM63]. NBC offered equal time to Donald Trump, so there was no violation. Stephen Battaglio, Trump Campaign Gets Equal Time from NBC After Harris SNL Appearance, L.A. Times (Nov. 4, 2024, at 13:35 PT), https://www.latimes.com/entertainment-arts/busines‌s/story/2024-11-04/trump-campaign-gets-equal-time-from-nbc-after-harris-snl-appearance [https://perma.cc/5JBS-F3DV].Show More and his threats over entertainment programming2 2.After Jimmy Kimmel joked on air about the assassination of Charlie Kirk, Carr said, “we can do this the easy way or the hard way” while discussing potential regulatory actions against ABC. Benny Johnson, Kash Patel Testifying LIVE Now on Charlie Kirk Assassin | Dark Texts with Trans Boyfriend Released . . . , at 1:30:03 (YouTube, Sep. 17, 2025), https://www.youtube.com/watch?v=4dNxPINQdcs. Following Carr’s comments, ABC suspended Kimmel. John Koblin, Michael M. Grynbaum & Brooks Barnes, ABC Pulls Jimmy Kimmel Off Air for Charlie Kirk Comments After F.C.C. Pressure, N.Y. Times (Sep. 17, 2025), https://www.nytimes.com/2025/09/17/business/media/abc-jimmy-kimmel.html.Show More and news coverage3 3.Carr threatened to revoke the licenses of broadcasters who aired false or “hoax[]” coverage of the war in Iran, echoing President Donald Trump’s call to target “[u]npatriotic” news organizations. Joseph Stepansky, Threats Over Iran War Bare Trump Efforts to Transform Free Speech: Experts, Al Jazeera (Mar. 23, 2026), https://www.aljazeera.com/ne‌ws/2026/3/23/threats-over-iran-war-bare-trump-efforts-to-transform-free-speech-experts [https://perma.cc/W44J-3FHS].Show More—has become one of the most controversial figures in government.

More consequential than Carr’s rhetoric are the policy decisions he has directed. One of those, the focus of this Essay, is the FCC’s public notice in early 20264 4.Fed. Commc’ns Comm’n, DA 26-68, FCC’s Media Bureau Provides Guidance on Political Equal Opportunities Requirement for Broadcast Television Stations (Jan. 21, 2026) [hereinafter 2026 Equal Time Notice], https://docs.fcc.gov/public/attachments/DA-26-68A1.‌pdf [https://perma.cc/KEG7-7L6L].Show More of a change to its interpretation of the Equal Opportunity Rules.5 5.47 U.S.C. § 315. Part (a) outlines what is generally referred to as the Equal Time Rule while part (b) outlines rules regarding candidate advertising.Show More Under § 315(a) of the Communications Act, generally referred to as the Equal Time Rule, when legally qualified candidates for office appear in broadcast programming, the broadcaster must offer the same amount of time to opposing candidates.6 6.Id. § 315(a).Show More But the statute exempts “bona fide news” appearances, including newscasts, news interviews, news documentaries, and news events.7 7.Id. § 315(a)(1)–(4).Show More The FCC has historically interpreted the news interview exemption broadly to include programs like The Tonight Show and the old Howard Stern radio show.8 8.See infra notes 68–72 and accompanying text.Show More

Despite this long-established interpretation, Carr criticized ABC’s daytime talk show The View, accusing it of violating the law by platforming Democratic candidates without offering equal time to Republicans.9 9.Radhamely De Leon, FCC Head Warns It Could Be “Worthwhile” To “Look Into” Whether ‘The View’ Is Violating FCC Rules, The Decider (Sep. 19, 2025, at 10:54 ET), www.decider.com/2025/09/19/fcc-view-violating-rules [https://perma.cc/3A23-VUZX].Show More Then, on January 21, 2026, the Media Bureau released a public notice (hereinafter 2026 Equal Time Notice) asserting that it would no longer presume that late-night and daytime television talk shows qualify for the news interview exemption.10 10.2026 Equal Time Notice, supra note 4, at 3–4.Show More Shortly thereafter, Carr acknowledged that the FCC had begun to formally investigate The View.11 11.Fed. Commc’ns Comm’n, February 2026 Open Commission Meeting, at 58:20 (YouTube, Feb. 18, 2026) [hereinafter FCC, February 2026 Meeting], https://www.youtube.‌com/watch?v=UW0Tsya97-o. In May, Disney and some of its local affiliates petitioned the FCC for a declaration that The View is a bona fide news interview program, and the FCC responded by opening up a public comment period ending July 6. Fed. Commc’ns Comm’n, Comment on Petition by Disney’s ABC Asking the FCC to Declare That The View Qualifies as a Bona Fide News Interview Program, MB Docket No. 26-124, DA 26-517 (May 22, 2026), https://docs.fcc.gov/public/attachments/DA-26-517A1.pdf [https://perma.cc/978G-Q‌37U]. If the FCC takes even 90 days to respond (a timeline it is not obligated to adhere to), this could leave the matter unresolved through Election Day.Show More Conspicuously, the 2026 Equal Time Notice makes no mention of broadcast radio, where conservative talk shows dominate and Republican candidates appear routinely.12 12.See infra Part III.Show More The notice warns against the platforming of candidates for “partisan purposes”13 13.2026 Equal Time Notice, supra note 4, at 3.Show More but directs this and its other admonitions solely at broadcast television.

The controversy over the FCC’s new approach peaked after CBS lawyers told Late Show host Stephen Colbert on February 16, 2026, that he had to scrap a planned guest appearance by Democratic U.S. Senate candidate James Talarico, and that he could not mention the ban on the air.14 14.The Late Show with Stephen Colbert, Why CBS Didn’t Broadcast Stephen Colbert’s Interview with James Talarico, at 01:34 (YouTube, Feb. 16, 2026), https://www.youtube.co‌m/watch?v=oh7DPSP65JA.Show More Colbert defied them in part by revealing to his audience what had transpired behind the scenes.15 15.Id.Show More He then posted his interview with Talarico online,16 16.See generally The Late Show with Stephen Colbert, Rep. James Talarico on Confronting Christian Nationalism, and the Strange Days in the Texas Legislature (YouTube, Feb. 17, 2026), https://www.youtube.com/watch?v=oiTJ7Pz_59A.Show More where the equal opportunities laws do not apply.17 17.See 47 U.S.C. § 315(a)–(b) (imposing obligations solely on “licensee[s]” who allow candidates to appear on their “broadcasting station[s]”).Show More

Reaction to the Colbert incident was intense, with people from across the political spectrum suddenly debating about these obscure regulations that have been in force since the Radio Act of 192718 18.Radio Act of 1927, 47 U.S.C. §§ 81–119, repealed by, Communications Act of 1934, ch. 652, § 602(a), 48 Stat. 1102.Show More but have rarely captured much public attention. Public discussion about the rules has been intense but often uninformed, with some people confusing the equal opportunities provisions with the defunct Fairness Doctrine,19 19.Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1249–50 (1949) (requiring broadcasters to address issues of public significance and air competing points of view on those issues). The Fairness Doctrine was abandoned by the FCC as policy in Syracuse Peace Council, 2 FCC Rcd. 5043 (1987).Show More or conflating § 315(a), the equal time provisions, with § 315(b), which requires broadcasters to provide equal access and reduced rates for political advertising.20 20.47 U.S.C. § 315(b)(1)–(2).Show More Grounded debate on this issue is urgently needed.

This Essay seeks to contribute to the conversation in three ways. First, it presents the results of an empirical analysis of some prominent television and radio talk shows, testing some of the assumptions underlying the 2026 Equal Time Notice and Carr’s critiques. Second, it offers a critical analysis of the FCC’s equal time reversal, concluding that in addition to being bad policy built on false assumptions and imposed through flawed processes, it violates both the First Amendment and the anti-censorship provision of the Communications Act.21 21.Id. § 326 (“Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.”).Show More The final aim of the Essay is to provide some context for this debate by offering a snapshot history of the Equal Opportunity Rules and the FCC’s interpretation and application of them over time.

Although this Essay is about policy, not personality, they cannot easily be separated here. Carr takes direction from President Trump in ways that are unusual for an agency head, and Carr even scrubbed the FCC website of references to its status as an “independent agency.”22 22.David Shepardson, FCC Deletes Reference to Agency Independence During US Senate Hearing, Reuters (Dec. 17, 2025, at 17:58 ET), https://www.reuters.com/business/media-tele‌com/fcc-deletes-reference-agency-independence-during-us-senate-hearing-2025-12-17 [https‌://perma.cc/BB9U-T2AN].Show More Carr also echoes President Trump’s pointed rhetoric, railing against the “fake news media,”23 23.FCC, February 2026 Meeting, supra note 11, at 56:45.Show More insulting individuals like “sleepy-eyed Chuck Todd,”24 24.PBS NewsHour, WATCH LIVE: FCC Chair Brendan Carr Speaks at CPAC, at 02:38 (YouTube, Mar. 27, 2026), https://www.youtube.com/watch?v=uP8r6oE2Y5M.Show More and accusing mainstream media of having “Trump derangement syndrome.”25 25.FCC, February 2026 Meeting, supra note 11, at 55:55.Show More On March 27, 2026, Carr told the audience at the CPAC Convention that Trump is taking on the fake media and he “is winning,”26 26.PBS NewsHour, supra note 24, at 02:30.Show More even though “we[]”27 27.Id. at 02:55 (emphasis added).Show More have not yet finished the mission. Carr then rattled off the victories: liberal hosts and reporters like Joy Reid, Chuck Todd, and Jim Acosta are no longer on the air; Democratic-leaning shows like The Late Show with Stephen Colbert have been cancelled; and funding for public media has been zeroed out.28 28.Id.Show More Carr also extolled the Paramount takeover of CBS and promised the crowd, “CNN is gonna have new ownership as well.”29 29.Id.Show More Carr’s public statements mirror his policy moves and the FCC’s enforcement actions, which have largely targeted liberal media while protecting conservative ones.30 30.For example, after outgoing FCC chair Jessica Rosenworcel dismissed several complaints against broadcast stations because they threatened the stations’ First Amendment rights, Carr reinstated the complaints, but only the ones targeting ABC, CBS, and NBC stations, not the ones targeting FOX affiliates. See Katie Kwasneski, FCC Investigations Under Trump Could Hurt Broadcasters, Gateway Journalism Rev. (Feb. 27, 2025), https://ga‌tewayjr.org/fcc-investigations-under-trump-could-hurt-broadcasters/ [https://perma.cc/3ZL4-‌2SKT].Show More To be clear, the new 2026 Equal Time Notice is defective, independent of Carr’s proclivities, but his comments and actions raise questions about his motives that are relevant to assessments of the policy’s legitimacy and constitutionality.31 31.See infra notes 132–33 and accompanying text. It is also important to note that the FCC only has three sitting commissioners: Carr, fellow Republican Olivia Trusty, and Democrat Anna Gomez. The other two slots are vacant. See Leadership, Fed. Commc’ns Comm’n, https://www.fcc.gov/about/leadership [https://perma.cc/6BZF-DWGU] (last visited July 16, 2026). This gives Carr even more unchecked discretion, and he also personally directs the Media Bureau, which is driving much of this activity. Brendan Carr, Fed. Commc’ns Comm’n, https://www.fcc.gov/about/leadership/brendan-carr/staff [https://p‌erma.cc/7YBE-42SW] (last visited July 19, 2026).Show More

Part I of this Essay addresses the original rationale for the equal opportunities law and shows that—in part because of the broad scope of the bona fide news exceptions—enforcement has focused almost exclusively on appearances by candidates in entertainment programming under § 315(a), and on advertising access under § 315(b). Part II addresses the bona fide news exceptions, their origins, and how they have been applied over time. Part III outlines the results of the empirical analysis of candidate appearances on several daytime and late-night TV talk shows, and on some nationally syndicated and local talk radio shows. This research shows how common candidate appearances are on both broadcast TV and radio, and how stark the differences are, with Republicans getting significantly less attention than Democrats on TV talk shows, but with Democrats entirely absent from leading talk radio shows. Secondary analysis also shows that candidate interviews in all these formats are generally substantive, and there is no reason to remove any of these shows from the news interview exemption. Part IV critiques the FCC’s new enforcement notice, arguing that it is an arbitrary and capricious change that also violates the First Amendment.

  1.  As an FCC commissioner, two months before becoming chair, Carr falsely accused Saturday Night Live of violating the law by including a cameo appearance by Democratic presidential nominee Kamala Harris. See Emma Colton, FCC Commissioner Rips NBC Over Harris’ Last-Minute SNL Appearance: ‘Plainly Designed to Evade’ the Rules, FOX News (Nov. 3, 2024, at 13:53 ET), https://www.foxnews.com/politics/fcc-commissioner-rips‌-nbc-over-harris-last-minute-snl-appearance-plainly-designed-evade-rules [https://perma.cc/‌57D5-EM63]. NBC offered equal time to Donald Trump, so there was no violation. Stephen Battaglio, Trump Campaign Gets Equal Time from NBC After Harris SNL Appearance, L.A. Times (Nov. 4, 2024, at 13:35 PT), https://www.latimes.com/entertainment-arts/busines‌s/story/2024-11-04/trump-campaign-gets-equal-time-from-nbc-after-harris-snl-appearance [https://perma.cc/5JBS-F3DV]. ↑
  2.  After Jimmy Kimmel joked on air about the assassination of Charlie Kirk, Carr said, “we can do this the easy way or the hard way” while discussing potential regulatory actions against ABC. Benny Johnson, Kash Patel Testifying LIVE Now on Charlie Kirk Assassin | Dark Texts with Trans Boyfriend Released . . . , at 1:30:03 (YouTube, Sep. 17, 2025), https://www.youtube.com/watch?v=4dNxPINQdcs. Following Carr’s comments, ABC suspended Kimmel. John Koblin, Michael M. Grynbaum & Brooks Barnes, ABC Pulls Jimmy Kimmel Off Air for Charlie Kirk Comments After F.C.C. Pressure, N.Y. Times (Sep. 17, 2025), https://www.nytimes.com/2025/09/17/business/media/abc-jimmy-kimmel.html. ↑
  3.  Carr threatened to revoke the licenses of broadcasters who aired false or “hoax[]” coverage of the war in Iran, echoing President Donald Trump’s call to target “[u]npatriotic” news organizations. Joseph Stepansky, Threats Over Iran War Bare Trump Efforts to Transform Free Speech: Experts, Al Jazeera (Mar. 23, 2026), https://www.aljazeera.com/ne‌ws/2026/3/23/threats-over-iran-war-bare-trump-efforts-to-transform-free-speech-experts [https://perma.cc/W44J-3FHS]. ↑
  4.  Fed. Commc’ns Comm’n, DA 26-68, FCC’s Media Bureau Provides Guidance on Political Equal Opportunities Requirement for Broadcast Television Stations (Jan. 21, 2026) [hereinafter 2026 Equal Time Notice], https://docs.fcc.gov/public/attachments/DA-26-68A1.‌pdf [https://perma.cc/KEG7-7L6L]. ↑
  5.  47 U.S.C. § 315. Part (a) outlines what is generally referred to as the Equal Time Rule while part (b) outlines rules regarding candidate advertising. ↑
  6.  Id. § 315(a). ↑
  7.  Id. § 315(a)(1)–(4). ↑
  8.  See infra notes 68–72 and accompanying text. ↑
  9.  Radhamely De Leon, FCC Head Warns It Could Be “Worthwhile” To “Look Into” Whether ‘The View’ Is Violating FCC Rules, The Decider (Sep. 19, 2025, at 10:54 ET), www.decider.com/2025/09/19/fcc-view-violating-rules [https://perma.cc/3A23-VUZX]. ↑
  10.  2026 Equal Time Notice, supra note 4, at 3–4. ↑
  11.  Fed. Commc’ns Comm’n, February 2026 Open Commission Meeting, at 58:20 (YouTube, Feb. 18, 2026) [hereinafter FCC, February 2026 Meeting], https://www.youtube.‌com/watch?v=UW0Tsya97-o. In May, Disney and some of its local affiliates petitioned the FCC for a declaration that The View is a bona fide news interview program, and the FCC responded by opening up a public comment period ending July 6. Fed. Commc’ns Comm’n, Comment on Petition by Disney’s ABC Asking the FCC to Declare That The View Qualifies as a Bona Fide News Interview Program, MB Docket No. 26-124, DA 26-517 (May 22, 2026), https://docs.fcc.gov/public/attachments/DA-26-517A1.pdf [https://perma.cc/978G-Q‌37U]. If the FCC takes even 90 days to respond (a timeline it is not obligated to adhere to), this could leave the matter unresolved through Election Day. ↑
  12.  See infra Part III. ↑
  13.  2026 Equal Time Notice, supra note 4, at 3. ↑
  14.  The Late Show with Stephen Colbert, Why CBS Didn’t Broadcast Stephen Colbert’s Interview with James Talarico, at 01:34 (YouTube, Feb. 16, 2026), https://www.youtube.co‌m/watch?v=oh7DPSP65JA. ↑
  15.  Id. ↑
  16.  See generally The Late Show with Stephen Colbert, Rep. James Talarico on Confronting Christian Nationalism, and the Strange Days in the Texas Legislature (YouTube, Feb. 17, 2026), https://www.youtube.com/watch?v=oiTJ7Pz_59A. ↑
  17.  See 47 U.S.C. § 315(a)–(b) (imposing obligations solely on “licensee[s]” who allow candidates to appear on their “broadcasting station[s]”). ↑
  18.  Radio Act of 1927, 47 U.S.C. §§ 81–119, repealed by, Communications Act of 1934, ch. 652, § 602(a), 48 Stat. 1102. ↑
  19.  Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1249–50 (1949) (requiring broadcasters to address issues of public significance and air competing points of view on those issues). The Fairness Doctrine was abandoned by the FCC as policy in Syracuse Peace Council, 2 FCC Rcd. 5043 (1987). ↑
  20.  47 U.S.C. § 315(b)(1)–(2). ↑
  21.  Id. § 326 (“Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.”). ↑
  22.  David Shepardson, FCC Deletes Reference to Agency Independence During US Senate Hearing, Reuters (Dec. 17, 2025, at 17:58 ET), https://www.reuters.com/business/media-tele‌com/fcc-deletes-reference-agency-independence-during-us-senate-hearing-2025-12-17 [https‌://perma.cc/BB9U-T2AN]. ↑
  23.  FCC, February 2026 Meeting, supra note 11, at 56:45. ↑
  24.  PBS NewsHour, WATCH LIVE: FCC Chair Brendan Carr Speaks at CPAC, at 02:38 (YouTube, Mar. 27, 2026), https://www.youtube.com/watch?v=uP8r6oE2Y5M. ↑
  25.  FCC, February 2026 Meeting, supra note 11, at 55:55. ↑
  26.  PBS NewsHour, supra note 24, at 02:30. ↑
  27.  Id. at 02:55 (emphasis added). ↑
  28.  Id. ↑
  29.  Id. ↑
  30.  For example, after outgoing FCC chair Jessica Rosenworcel dismissed several complaints against broadcast stations because they threatened the stations’ First Amendment rights, Carr reinstated the complaints, but only the ones targeting ABC, CBS, and NBC stations, not the ones targeting FOX affiliates. See Katie Kwasneski, FCC Investigations Under Trump Could Hurt Broadcasters, Gateway Journalism Rev. (Feb. 27, 2025), https://ga‌tewayjr.org/fcc-investigations-under-trump-could-hurt-broadcasters/ [https://perma.cc/3ZL4-‌2SKT]. ↑

  31.  See infra notes 132–33 and accompanying text. It is also important to note that the FCC only has three sitting commissioners: Carr, fellow Republican Olivia Trusty, and Democrat Anna Gomez. The other two slots are vacant. See Leadership, Fed. Commc’ns Comm’n, https://www.fcc.gov/about/leadership [https://perma.cc/6BZF-DWGU] (last visited July 16, 2026). This gives Carr even more unchecked discretion, and he also personally directs the Media Bureau, which is driving much of this activity. Brendan Carr, Fed. Commc’ns Comm’n, https://www.fcc.gov/about/leadership/brendan-carr/staff [https://p‌erma.cc/7YBE-42SW] (last visited July 19, 2026). ↑

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). ↑

©Virginia Law Review Association. All rights reserved.