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The Solicitor General, Consistency, and Credibility
Full text linkThis Article offers the first comprehensive look at cases in which the Solicitor General (SG) rejects a legal argument offered on behalf of the United States in prior litigation. Such reversals have received considerable attention in recent years, as shifts in presidential administrations have produced multiple high-profile “flip-flops”—as the Justices sometimes call them—by the SG. Even those observers who defend the SG, including veterans of the office, caution that inconsistency in legal argument poses a threat to the SG’s credibility with the Court. Our goal is to better understand the circumstances that lead the SG to change its position on the meaning of the law, and to unpack the connections between consistency and credibility. To assess these questions, we build an original dataset of 131 cases, dating from 1892 to the close of the Court’s 2022 Term, that include such reversals. A close reading of the cases and associated briefing and oral argument transcripts confirms that changes in the government’s litigating position have become more common in recent decades—but it also reveals significant blind spots in the prevailing picture, which depicts positional changes as a function of political polarization and shifts in presidential administrations. Reversals happen for a variety of (often overlapping) reasons, many of which stem from the SG’s unique role in coordinating litigation across a vast and constantly changing federal government. Indeed, our study calls into question the idea that ideological swings associated with changes of presidential administrations can be isolated, either in theory or in practice, from other sorts of legal, social, and technological changes that shape the government’s understanding of the law. It also shows that the connection between consistency and credibility, while intuitive at first blush, rests on a formalist understanding of law and an unpersuasive equation of the judiciary and the executive.
These insights are particularly important today, given the Justices’ willingness to jettison their own longstanding precedents while simultaneously hamstringing administrative agencies’ ability to update or modify policies. The Court’s decision in Loper Bright Enterprises v. Raimondo, overruling Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., endorsed an understanding of the law and legal interpretation in which even the hardest questions have single “best” answers—and, once ascertained, the meaning of the law is fixed. As we show, the Justices’ reactions to litigation reversals by the government rest on similar premises. Given that the SG has powerful incentives to offer arguments that appeal to the Justices, the Court’s skepticism of litigation reversals risks freezing legal interpretation by the government actors who often are best situated—by virtue of democratic accountability and on-the-ground experience—to consider the tradeoffs between stability and change
Immunity for Imaginary Policy in Tort Claims Against the Federal Government
Full text linkFictional policy justifications for official negligence are regularly accepted by the federal courts to shield the federal government from liability for ordinary tortious wrongdoing. The lower federal courts have adopted an extravagant interpretation of the discretionary function exception to the Federal Tort Claims Act that applies whenever a policy implication can be theorized. Under this “susceptible to policy analysis” approach, the United States government escapes accountability through after-the-fact speculation regarding policy factors that could have played a role (but actually did not) in the harmful government conduct.
By textual command, the exception shields only government decisions “based on,” that is, causally linked to, a “discretionary function,” a term of art that means an actual policy judgment. Moreover, the purpose of the exception is to prevent judicial second-guessing of public policy decisions made by the federal government. But the risk of judicial intrusion into the realm of policymaking vanishes when government officials have exercised no policy judgment.
The promise of the FTCA in waiving federal sovereign immunity for common law torts is being suffocated beneath a blanket of immunity stretched to cover not only genuine policy choices, but also the conjectures of government lawyers about a policy ensemble that could have been fashioned. New empirical evidence confirms that the government almost invariably prevails in the new regime of hypothetical policy creep. Garden-variety miscarriages of public safety are transmuted into imaginary policy reflections, leaving victims of carelessness to bear their own losses
MMU: 02/24/25–03/02/25
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Land Law and Policy in Israel
Full text linkWednesday, March 5, 2025 | 12:30 PM | Biolchini Hall of Law, Room 1315
Join Professor Haim Sandberg as he explores how Israel\u27s land laws reflect the key identity and political challenges that Israel faces when trying to be a Jewish, democratic, Middle Eastern, and Innovative nation.
Sponsor: International and Graduate Programs, Notre Dame Law Schoolhttps://scholarship.law.nd.edu/ndls_posters/2015/thumbnail.jp
What Not to Wear
No full textMonday, February 24, 2025 | 12:30 PM | Eck Hall of Law, Room 3130
Women\u27s Legal Forum will be hosting a panel event on professional attire and workplace etiquette during client meetings. The panel will be moderated by Christine Venter and will feature an incredible lineup of professionals and professors. Additionally, Patti McLaughlin will be giving a special presentation on best practices for conducting yourself in professional settings and meetings.
We will be catering lunch from O’Rourke’s—so come hungry!
Sponsors: American Constitution Society Federalist Society Student Bar Association Women\u27s Legal Forumhttps://scholarship.law.nd.edu/ndls_posters/2011/thumbnail.jp
Has Free Exercise Swallowed the Establishment Clause?
No full textWednesday, March 5, 2025 | 12:30 PM | Eck Hall of Law, Room 1140
Join ACS, Prof. Emeritus Fred Gedicks of BYU, and Prof. Rick Garnett as they discuss contemporary developments in Religion Clauses jurisprudence. In particular, their discussion will encompass Supreme Court litigation surrounding St. Isidore Catholic Virtual School in Oklahoma and whether the Establishment Clause conveys an individual right.
Sponsors: American Constitution Society Center for Citizenship & Constitutional Governmenthttps://scholarship.law.nd.edu/ndls_posters/2024/thumbnail.jp
What Do We Owe Our Veterans?
Full text linkFriday, March 28, 2025 | 8:30 AM | Corbett Family Hall, Downes Club
The Military and Veterans Law Society, in partnership with Dean Cole\u27s office, will host a symposium focused on military and veterans policy issues. This symposium will bring in, among others, our nation\u27s highest-ranking member of the military, Admiral Christopher Grady. If you are interested in attending, please fill out this short form.
Sponsors: Military and Veterans Law Society Office of the Deanhttps://scholarship.law.nd.edu/ndls_posters/2047/thumbnail.jp
From Law School to Tax Law: Career Tips from the Experts
No full textMonday, March 31, 2025 | Time To Be Determined | Eck Hall of Law, Room 3140
We’re hosting an incredible Tax Law Panel that you seriously don’t want to miss. Four amazing panelists from different corners of the tax world will be joining us to talk all things career and hot topics, including:
- How to discern your path in the diverse world of tax law - Updates and insights on the Tax Cuts and Jobs Act - The role of AI in tax (yes, the robots are coming for your spreadsheets) - The journey to becoming a partner in tax practice - Chicory Cafe will be served for lunch
Sponsor: Tax Law Societyhttps://scholarship.law.nd.edu/ndls_posters/2065/thumbnail.jp
MMU: 04/07/25–04/13/25
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Networking 101
No full textWednesday, April 9, 2025 | 12:30 PM | Eck Hall of Law, Room 3140
Join IHRS for our Networking 101 event with Joni Swedlund, CEO of Inner Rock Group, and learn how to network like a pro! Meeting will be held in Eck 3140 at 12:30. Chick-Fil-A will be served.
Sponsors: First Generation Professionals Hispanic Law Student Association International Human Rights Society International Law Society Women\u27s Legal Forumhttps://scholarship.law.nd.edu/ndls_posters/2077/thumbnail.jp