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Brian Downing

@briandowning.bsky.social

110 followers 720 following 190 posts

Assistant professor of law at @olemiss.bsky.social this fall. Using this to rate SCOTUS oral args. Rating guide: https://briandowning.medium.com/notes-on-rating-supreme-court-oral-advocacy-0859f8952930. Former Google lawyer/eng.

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Brian Downing @briandowning.bsky.social · 4d

My newest published paper is out! It's about TikTok. It's also about the constitutionality of U.S. data privacy regulation. I don't know which topic is more popular - could someone with a teen ask?

If you're interested in either, download it below.

papers.ssrn.com/sol3/papers....

A Switch In Strata’ll Save Your Data: TikTok Inc. v. Garland and the Future Of U.S. Data Protection Regulation

The U.S. Supreme Court's 2025 case of TikTok Inc. v. Garland looked to be a content-focused speech showdown. TikTok and its users' First Amendment arguments wou

papers.ssrn.com

1 1

Brian Downing @briandowning.bsky.social · 7h

Postal Service v Konan

Civ Pro: Immunity

Liu (P SG) - Clarity (4), Mastery (3), Adaptivity (2), Interplay (2)

Anand (R) - Clarity (4), Mastery (4), Adaptivity (3), Interplay (3)

Miscarriage of postage not high stakes, but good advocates make it fun.

youtu.be/sMQBvLnF8dI?...

USPS v. Konan (2025)

YouTube video by electron media group, inc.

youtu.be

Brian Downing @briandowning.bsky.social · 2d

Talent - Just ok, but hard to go after Clement and add anything.

Notz - I did not know what her position was by the end. m84 Kavanaugh: “You’re walking away from your brief, your choice.” Kagan: “Yes you are.” Ouch.

Brian Downing @briandowning.bsky.social · 2d

m34 “If you want me to say direct object, I’ll say it” Kagan: “that might help you with some people, but not others.” m37 Barrett: “There was an excellent attorney in TransUnion” (Clement)

Brian Downing @briandowning.bsky.social · 2d

Clement: It’s Clement, so you get a masterclass. This was one of his less effective arguments by his standards…but he still scores near-perfect. m25 “I stand in lock-shoulder with the Socialist Workers Party” Sotomayor “strange bedfellows” “I’m happy to have those bedfellows.”

Brian Downing @briandowning.bsky.social · 2d

Bost v Ill

Con Law: Standing

Clement (P) Clarity (4), Mastery (5), Adaptivity (5), Interplay (5)

Talent (SG, P) Clarity (2), Mastery (2), Adaptivity (1), Interplay (1)

Notz (R, Ill SG) Clarity (1), Mastery (2), Adaptivity (1), Interplay (1)

youtu.be/saBKhFU6IkI?...

Bost v. Illinois State Board of Elections (2025)

YouTube video by electron media group, inc.

youtu.be

Brian Downing @briandowning.bsky.social · 2d

McCloud - Back after tough assignment in Barnes v Felix, the “young guns” arg last term. Gets another tough task and does a very good job in a brief argument. m58 “I don’t have a dog in that fight” Gorsuch: “you put the dog in the fight, counsel” “Ok, let me defend the dog.”

Brian Downing @briandowning.bsky.social · 2d

Brown - Funny moments: m40 Gorsuch - you know exactly what I’m going to ask (m20 redux) 42m “If you go back to original principles of the double jeopardy clause…” Gorsuch: “you may be shocked to hear I’m interested in that.” “I can’t say I’m surprised.”

Brian Downing @briandowning.bsky.social · 2d

Larsen - Excellent argument. m20 back and forth with Gorsuch shows great command of crim/double jeopardy history.

Brian Downing @briandowning.bsky.social · 2d

Barrett v US

Crim: 5th Am

Larsen (P) - Clarity (4), Mastery (4), Adaptivity (3), Interplay (2)

Brown (SG, P) - Clarity (3), Mastery (4), Adaptivity (2), Interplay (3)

McCloud (Crt Amicus R) - Clarity (4), Mastery (4), Adaptivity (3), Interplay (2)

youtu.be/N2_1E0J5Ods?...

Barrett v. United States (2025)

YouTube video by electron media group, inc.

youtu.be

Brian Downing @briandowning.bsky.social · 2d

Stevenson: Leaned on the medical practice standards heavily, but potentially lost Kagan’s vote on viewpoint answers. That said, the conservative justices haven’t been particularly interested in bending a bit to gain Kagan’s vote when they already have a majority (eg Mahmoud).

Brian Downing @briandowning.bsky.social · 2d

Mooppan: A bit more aggro that one expects from the SG, but held serve on the P advantage here.

Brian Downing @briandowning.bsky.social · 2d

Campbell: Stayed on-message about alternative laws where Dem-leaning speech banned; kept arguments clear and succinct throughout without inflaming the liberal justices.

Brian Downing @briandowning.bsky.social · 2d

Chiles v Salazar

Con Law: 1st Am

Campbell (P) Clarity (3), Mastery (3), Adaptivity (2), Interplay (1)

Mooppan (SG P) Clarity (3), Mastery (2), Adaptivity (1), Interplay (1)

Stevenson (R CO SG) Clarity (2), Mastery (2), Adaptivity (1), Interplay (1)

youtu.be/TnNJkug34vY?...

Oral Argument on conversion therapy: Chiles v. Salazar

YouTube video by Supreme Court Oral Argument Transcripts

youtu.be

Brian Downing @briandowning.bsky.social · 4d

A Switch In Strata’ll Save Your Data: TikTok Inc. v. Garland and the Future Of U.S. Data Protection Regulation

The U.S. Supreme Court's 2025 case of TikTok Inc. v. Garland looked to be a content-focused speech showdown. TikTok and its users' First Amendment arguments wou

papers.ssrn.com

1 1

Brian Downing @briandowning.bsky.social · 5d

Barber (SG, R) - clear rule in briefs adapted live to “just do what the judge did here” and what Texas wants in m70, giving Sotomayor’s an “ah ha” path to a win. Seems to be some SCOTUS support for “trust the lower court judges to tailor around the 6th Am” and walk away.

Brian Downing @briandowning.bsky.social · 5d

Berk v Choy

Civ Pro: Pleading

Tutt (P) Clarity (3), Mastery (3), Adaptivity (2), Interplay (1)

Yarger (R) Clarity (3), Mastery (3), Adaptivity (1), Interplay (1) m35 Kagan: R’s position “is, like, what the entire Federal Rules are designed to prevent”

youtu.be/yV1_TYEoxIA?...

Berk v. Choy (2025)

YouTube video by electron media group, inc.

youtu.be

Brian Downing @briandowning.bsky.social · 5d

Warthen (R) - Apparently injured shortly before argument, but did a nice job. Seems to be the local DA & kept the case all the way to SCOTUS? 60m: lines of what can be said to client blur. R trying to give flexibility for discussions, but puts attorneys in a very weird spot.

Brian Downing @briandowning.bsky.social · 5d

Banner (P) - Lots of halting answers. m22 not sure what privilege rules are; Alito notes case may turn on answer.

Brian Downing @briandowning.bsky.social · 5d

Villarreal v TX

Crim: 6A

Banner (P) Clarity (2), Mastery (2), Adaptivity (2), Interplay (2)

Warthen (R TX) Clarity (4), Mastery (3), Adaptivity (3), Interplay (1)

Kevin J. Barber (SG, R) Clarity (3), Mastery (3), Adaptivity (3), Interplay (1)

youtu.be/9qfE2vojoME?...

Villarreal v. Texas (2025)

YouTube video by electron media group, inc.

youtu.be

Brian Downing @briandowning.bsky.social · 21d

A thing I wrote about chatbot liability got picked up by my old local paper. Hopefully after reading it you will feel post-intelligenced (if that’s a good thing).

Btw, SCOTUS oral arg season starting soon! Will post more then.

www.seattlepi.com/news/article...

Suicide-by-chatbot puts Big Tech in the product liability hot seat

(The Conversation is an independent and nonprofit source of news, analysis and commentary from academic experts.)

www.seattlepi.com

Brian Downing @briandowning.bsky.social · Aug 23

But our skies are famously blue! No wait that’s Alabama

Brian Downing @briandowning.bsky.social · Aug 4

The students will assume I failed to show up on the first day if they are looking for this person. When you've had the same job since before smartphones were a thing, you don't have a lot of professional pictures documenting the aging process. Which is a blessing.

law.olemiss.edu/um-law-welco...

UM Law Welcomes New Faculty, Senior Staff for 2025-26 Academic Year | School of Law | Ole Miss

OXFORD, Miss. – The University of Mississippi School of Law is welcoming several new faces this year among its faculty … Continued

law.olemiss.edu

Brian Downing @briandowning.bsky.social · Jul 23

During the SCOTUS summer break, let me shamelessly promote my paper on AI's impact on the increased discoverability of private conversations, particularly in corporations with video calling. If you're on a lit hold, you might want to check it out: papers.ssrn.com/sol3/papers....

The AI Elf on the Shelf: Preserving Private Spaces in the Age of Artificial Intelligence-Assisted Live Conversations

The content of live audio and video calls were traditionally unrecorded, produced in civil discovery only through costly deposition testimony. Conference&n

papers.ssrn.com

Brian Downing @briandowning.bsky.social · May 22

The smart folks were right (unlike me) - Respondents got to 4-4, which is about as much as they could hope for. Congrats to Garre, as that was really pulling a rabbit out of a hat. But likely a loss if court composition holds and they take another case. www.supremecourt.gov/opinions/24p...

www.supremecourt.gov

Brian Downing @briandowning.bsky.social · May 15

Also classmate Sam Bray mentions galore, including by Corkran, layering UChicago Law ‘05 on very thick. No complaints here!

Overall, my guess is they craft a rule narrowing, but allowing, universal injunctions. 14th Am is a bonus-some signs they may go there & Trump loses if so.