The Solicitor General, Consistency, and Credibility

This 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

What Not to Wear

Monday, 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

Barristers\u27 Ball

Saturday, April 5, 2025 | 6:30 PM | Palais Royale Barristers\u27 Ball Tickets Are Now on Sale! Notre Dame’s Annual Barristers’ Ball will be held on Saturday, April 5th at the Palais Royale. Tickets may be purchased here. Sponsor: Notre Dame Law Schoolhttps://scholarship.law.nd.edu/ndls_posters/2049/thumbnail.jp

Q&A and Listening Session for International Students

Thursday, April 24, 2025 | 12:30 PM | DeBartolo Hall, Room 155 In collaboration with the Graduate School, the Graduate Student Government is organizing a Q&A/Listening session for international graduate students and postdoctoral scholars to give them an opportunity to ask questions and voice their concerns in the current environment. We will start with short remarks from a panel of invited speakers and then open up a discussion/question session. The panel of speakers is composed of Michael Pippenger (ND Global), Christine Caron Gebhardt (Student Affairs), Mike Hildreth (Graduate School), Leah Zimmer (ISSA), Dr. Chieh-Yu Liao (UCC), and Dr Maureen Lafferty (UCC). The session will be held April 24th 12:30-1:45 in 155 DeBartolo Hall. Pizza will be served. Sponsor: Graduate Student Governmenthttps://scholarship.law.nd.edu/ndls_posters/2094/thumbnail.jp

Truce Instead of Justice in the Russian-Ukrainian War

Thursday, March 6, 2025 | 12:30 PM | Eck Hall of Law, Room 3130 Join the Global Human Rights Clinic on March 6 for a Lunch and Learn with Svitlana Khyliuk as she explores different scenarios for the end of Russian unlawful unprovoked armed aggression against Ukraine and their impact on the global and European security architecture, as well as on the future of international law. All are welcome to attend. Sponsors: Global Human Rights Clinic Human Rights LLMhttps://scholarship.law.nd.edu/ndls_posters/2028/thumbnail.jp

NDLS Communicator: Week of 04.14.25

The Latest News Notre Dame Law School\u27s Inaugural Death Penalty Abolition Week brings together exonerees, advocates, and faith leaders Two Notre Dame Law students recognized in prestigious Judicial Opinion Writing Competition ND Notre Dame Law School\u27s Religious Liberty Clinic represents prisoner denied Ramadan accommodations in federal appeal Notre Dame Law School holds fourth annual interfaith dinner in observance of Easter, Ramadan, Passover, and Ridván Educational opportunities for all: NDLS clinic defends St. Isidore Catholic School\u27s freedom to serve Faculty Briefs Nicole Garnett\u27s article in City Journal about the launch of a database exposing religious discrimination in government funding was featured in Mosaic Magazine. Lloyd Mayer contributed pieces to Nonprofit Law Prof Blog about the class action lawsuit from donors against the NRA and continued coverage of new executive actions and ongoing lawsuits affecting nonprofit organizations. In March, In March, Christina Jones spoke at Touro Law School\u27s Disability Rights and Inclusion conference. The event was featured in an article by Jewish Press. Sam Bray\u27s testimony before the Senate Judiciary Committee last week was quoted in a WHBL article. Sherif Girgis\u27s article Living traditionalism was mentioned in an NYU Law story commemorating the 100th volume of the NYU Law Review. Derek Muller was quoted in News 4 Jax about President Trump\u27s plans for a third presidential term and Bloomberg Law regarding recent Supreme Court decisions in favor of the Trump administration. Events Monday, April 14 Law and Economics Workshop, 12:30 to 1:55 p.m., 2130 Faculty Meeting Room Gina-Gail Fletcher, Duke Law School, The Limits of Transparency: Regulating AI in the Financial Markets Tuesday, April 15 Global Human Rights Clinic & HR LLM Program: Breakfast with Bennett Freeman, Business and Human Rights and Responsibility; Progress and Challenges, 9 a.m., 3331 Biolchini Faculty Colloquium: Thomas Krebs, 12:30 p.m., 2130 Faculty Meeting Room London Law: The UK Electronic Trade Documents Act 2023 - a Sea Change in International Trade? ACS Discussion: Sanctioning Justice for Palestine, 12:30 p.m., 3130 Eck Hall Profs. Atalia Omer and Ernesto Verdeja of the Keough School along with Ken Roth, former Executive Director of Human Rights Watch, will discuss Trump\u27s sanctions on the ICC. Wednesday April 16 STMS Discussion: Gender Theory and Catholic Teaching, 12:30 p.m., 1140 Eck Hall with Professor Abigail Favale of the McGrath Institute for Church Life Thursday, April 17 Private Law Workshop: Dr. Debadatta Bose, The Robbins Postdoctoral Fellow at UC, 12:30 to 2:00 p.m., 1130 Eck Hall. Lunch will be provided and there will be a pause at 1:30 p.m. to allow for those who need to leave early. Friday, April 18 Good Friday. The Law School is closed. Future Events Champions for Justice Public Interest Recognition Ceremony April 22, 5:30 p.m. Democracy Talk: Prosecuting Power Wednesday, April 23, 5 p.m., McCartan Courtroo

Algorithmic Bias in Hiring: Amending Title VII to Prohibit AI Discrimination

I propose amendments to Title VII to address discriminatory hiring related to AI technologies. Section 703(c)’s definition of an “employment agency” should be modified to include “any person who uses artificial intelligence” to procure employees. I also propose a new definition in section 703 that incorporates the expansive definition of AI in 15 U.S.C. 9401(3). These small changes would make AI hiring firms more responsible for discriminatory screening and selection of job applicants, and better protect applicants who are adversely selected by sex, race, disability and other protected characteristics

MMU: 02/10/25–02/16/25

This Week @ NDLS Mass Times Commons Daily Menu Saint of the Week General Announcement

Spring \u2725 International and Graduate Programs Lunch and Learn Series

Spring 2025 | 12:30 PM | Biolchini Hall of Law, Room 1315 ND Law\u27s International and Graduate Programs are pleased to announce the spring 2025 Lunch and Learn series. During these sessions, visiting professors will share insights on various topics of expertise. All are welcome to attend, and lunch is provided. Please mark the dates below on your calendar. We look forward to having you there. All sessions are held at 12:30 p.m. in 1315 Biolchini Hall. Sponsor: International and Graduate Programshttps://scholarship.law.nd.edu/ndls_posters/1983/thumbnail.jp