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Brian Downing

@briandowning.bsky.social

110 followers 720 following 180 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.

briandowning.medium.com

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Brian Downing @briandowning.bsky.social · 18h

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 · 18h

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 · 1d

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 · 1d

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 · 1d

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 · 1d

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 · 1d

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 · 17d

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.

Brian Downing @briandowning.bsky.social · May 15

Feigenbaum - in contrast, had a deferential, “let’s get to the right answer” tone and a command of the circumstances that may have turned the case into a win.

Corkran - NJ set the stage well, so cleaned up some issues (as the 2d R often does) & got out. Note: also a classmate!

Brian Downing @briandowning.bsky.social · May 15

Yet I do have some sympathy for Sauer’s tough spot on following Circuit cases - the 1989 agency nonacquiescence article by Estreichert & Revesz details problems: openyls.law.yale.edu/bitstream/ha... In short, there are categories where it is not reasonable for agencies to regionalize the law.

openyls.law.yale.edu

Brian Downing @briandowning.bsky.social · May 15

Sauer - like in Drummond, underperformed as a SG. It wasn’t bad, but SGs tend to take wobbly cases and use their skill to turn them into winners. I think Sauer is more likely to have done the opposite. m20 Kagan “assume on the merits you are wrong.” There was a lot of that.

Brian Downing @briandowning.bsky.social · May 15

Trump v CASA

Civ Pro: Universal Injunctions

Sauer (SG Applicants) - Clarity 2 Mastery 3 Adaptability 2 Interplay 1

Feigenbaum (St SG R) - Clarity 4 Mastery 4 Adaptability 4 Interplay 4

Corkran (R) - Clarity 3 Mastery 3 Adaptability 2 Interplay 2

www.youtube.com/watch?v=jggn...

Supreme Court hears arguments in Trump birthright citizenship case | full audio

YouTube video by CBS News

www.youtube.com

Brian Downing @briandowning.bsky.social · May 5

m86 Gorsuch: I’m delighted they’re still teaching the problems of dangling modifiers in OK schools.

m100 Alito callback to Mahmoud LGBTQ books case a few args ago, trying to show diversity of school approaches (or troll a bit).

Brian Downing @briandowning.bsky.social · May 5

m60 Sotomayor - SG changed position; what changed? Sauer, we think the framework should change. S: What changed is that the administration changed. Good paper on this phenomenon by Professors Lemon and Widiss here: papers.ssrn.com/sol3/papers....

THE SOLICITOR GENERAL, CONSISTENCY, AND CREDIBILITY

<p><span>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

papers.ssrn.com

Brian Downing @briandowning.bsky.social · May 5

On substance, I thought Rs were sunk listening to the arg, but many smart folks disagree - they think Roberts is in play for a 4-4 split such that Ps lose. If that’s so, Gorsuch may be as in-play as Roberts, as neither seemed in the tank for Ps. But I think Ps prob win 5-3 FWIW.

Brian Downing @briandowning.bsky.social · May 5

A lot of consistent scores here, as all the advocates are experienced arguers who performed well, as expected. Sauer seemed both hoarse and a bit unprepared at times in his first SG arg, but I don’t expect that to continue - it was probably a rushed prep for him.

Brian Downing @briandowning.bsky.social · May 5

Ok v Drummond

1A: Charter Sch

Campbell-Clarity 3 Mastery 3 Adaptability 2 Interplay 2

McGinley-Clarity 3 Mastery 3 Adaptability 2 Interplay 2

Sauer-Clarity 2 Mastery 2 Adaptability 1 Interplay 1

Garre-Clarity 3 Mastery 3 Adaptability 3 Interplay 2

www.youtube.com/watch?v=2oe8...

Oklahoma Statewide Charter School Board v. Drummond (2025)

YouTube video by electron media group inc.

www.youtube.com

Brian Downing @briandowning.bsky.social · May 1

Gupta - Didn’t even speak until 95 minutes in, but did a fine job reacting to where the arg was going and framing a favorable opinion while leaning into the advisory-issue. All this for a DIG?

Brian Downing @briandowning.bsky.social · May 1

Joshi - Has many good args in the past, but I didn’t find this one as effective. Took too long what the Art. III/FRCP 23 lines were, & the arg had already been trying the Justices’ patience. m88 Joshi “we are not taking a position on Art III…” Kagan “Then that’s just...come on!”

Brian Downing @briandowning.bsky.social · May 1

Francisco - Got bogged down for nearly an hour, but still spiced things up where he could. m28 “If Labcorp adopted a policy that said that five-foot-eight overweight Filipino American men have to use the front desk and not the kiosk, I would say hallelujah.”

Brian Downing @briandowning.bsky.social · May 1

This arg was a real slog for all involved. Tons of time spent on whether the May, June, or August order applied (sigh), so should be DIG’d or vacated? (sigh x2). The time-to-legal-impact ratio was very low. Ins and outs of FRCP 23 could be interesting, but quagmires dominated.