Sharon Brett

Just seeing this now, @jcschwartzprof.bsky.social -- love it (of course). Your work continues to inspire me!

Started re-prepping civ pro today, can confirm. 😅

Extraordinarily bad at this. Forgot to include a link. Here it is. papers.ssrn.com/sol3/papers....

title: Out-of-State Executives abstract: In more than half of the states in the country, when the governor steps across state lines, they might be temporarily ceding power to their lieutenant governor. In the governor’s absence, the acting governor is largely free to do as they want—sign legislation, issue pardons, fill vacancies in state government, convene the legislature into session, and even initiate criminal investigations. As actions by putative acting governors have been challenged in court, state courts have interpreted the meaning of the word “absence” to arrive at one of two different tests. First, the “physical absence” rule automatically devolves near-total power to the successor upon any absence from the state. Second, the “effective absence” rule devolves power only upon a meaningful absence. Yet these tests are inherently flawed. The “physical absence” rule is absurd, but easy to apply, while the “effective absence” rule is clearly logical, but difficult to apply. And far too many courts have never handed down binding opinions on these questions, leaving state governments to operate under norms and informal practices. In this Article, I argue that gubernatorial absence provisions are incapable of reform and ought to be repealed. I conducted a fifty-state survey of state constitutions, statutes, caselaw, and attorney general opinions, and a content analysis of thousands of actions taken by acting governors. Based on this analysis, I conclude that acting governors’ purported exercises of power are significant, that the legality of these exercises is undertheorized, and that the attempts by state courts to interpret these provisions have produced inescapably flawed jurisprudence. Moreover, there are grave harms of leaving these provisions untouched as partisan polarization deepens and democratic norms degrade. A putative acting governor representing a different faction or party than the elected governor could trigger a constitutional crisis upon the…

perhaps, maybe, possibly coming to a law review near you. we'll see when I submit it! or perhaps we'll circle back in February.

If you are looking to be a public defender, and are a rising 3L or recent law grad, apply for the E. Barrett Prettyman fellowship at @georgetownlaw.bsky.social. Check out the job announcement: apply.interfolio.com/170321

Anyway, it always feels awkward to share work on here. 🥴Thx to many folks, incl. David Marcus, Tom Lee, Laura Hines, @yeargain.bsky.social, and @justinlawguy.bsky.social, who sent thoughts on an earlier draft. Other ideas/suggestions welcome, and please share with whoever might be interested. (5/5)

Policing cases are the archetype, but not the only example, of where standing analysis in pub. interest class action lit has gone wrong. I originally wrote this as a policing litigation paper, but I don't think its limited to that context so this version widens it out. (4/5)

I point to how courts handle other justiciability doctrines in class action litigation & the myriad other overlapping doctrinal barriers facing plaintiffs as evidence that a strict application of single plaintiff standing doctrine in (b)(2) cases is misplaced. (3/5)

There is increased interest in (b)(2) litigation post-Trump v. CASA. I argue that in such cases, the standing inquiry should shift and refocus; that the class action posture necessarily impacts the inquiry, whether the courts explicitly recognize it or not. (2/5)

A draft of my new paper, Article III Standing and the Public Interest Class Action, is up on SSRN. In it I advance a new way of thinking about standing in Rule 23(b)(2) class actions. (1/5)

What about listing one in the primary and the other in the secondary? That might strike some as less odd. But as someone who went on the market as civ pro/evidence and was asked more than once if I could also teach crim, I find the combo less odd than others I suppose!

Of note: not a single career prosecutor from the civil rights division signed this.

hey leah! my always and forever recommendation if you haven't already read it is History of Love by Nicole Krauss.

I never met or spoke with Professor Fallon, and regret that I missed the opportunity to tell him how formative his scholarship has been for me as I think through my own ideas as a new academic. Reading the various tributes yesterday/today, I tell he meant a lot to many.

KU Law is hiring two entry level lines this year - constitutional law and criminal law. Details/job postings are here: sjobs.brassring.com/TGnewUI/Sear...

Please forward to current fellows and folks going on the market this summer. I'm also happy to connect with anyone who is interested!

David Marcus is one of the best sources on this tool. I’m trying to get a paper done this summer that addresses one component of the 23b2 but agree that such actions need to be litigated creatively and forcefully now.

It is in rough form, but happy to send it along! Will message you.

I've been working on a paper this summer about standing in 23(b)(2) cases, in part because of the below sentiment . . .

Not all red states. And some states (including Montana) passed laws targeting gender affirming care for minors that were already challenged--and found likely unconstitutional under the state constitution--in their state courts. lambdalegal.org/wp-content/u...

SCOTUS’s Review of Ban on Trans Health Care Highlights Need for State Litigation Even if the U.S. Supreme Court decides that bans on gender-affirming care for trans youth are constitutional, state courts can strike down such laws under state constitutions.

CC: @yeargain.bsky.social who has been saying this for a while. statecourtreport.org/our-work/ana...

Anguish over the Skirmetti opinion is a completely appropriate and justified reaction. But just like w/ Dobbs, state constitutions provide add'l protections. Some state EPCs are much broader than the fed EPC; others have implicit privacy/bodily autonomy rights. The fight moves to state courts now.

This x infinity.

Are you (or do you know) a gender affirming care provider who received a Department of Justice subpoena for records over the past couple of days?

Are you or someone you know developing a strategy around such subpoenas?

If so, please reach out.

Kansas appeals court ruling restores ability to change gender markers on driver's licenses • Kansas Reflector A three-judge appeals court panel on Friday cleared the way for Kansans to resume changing their gender markers on driver's licenses, rejecting arguments made by Attorney General Kris Kobach and overt...

A three-judge appeals court panel on Friday cleared the way for Kansans to resume changing their gender markers on driver’s licenses, rejecting arguments made by Attorney General Kris Kobach and overturning a lower court ruling #ksleg kansasreflector.com/2025/06/13/k...

file:///var/mobile/Library/SMS/Attachments/76/06/95CB8D63-83F0-4EB6-BE0E-62EB53541A06/127390.pdf

The ACLU/ACLU KS won their appeal in the drivers license case in KS today — KS court of appeals overturned the district court’s grant of a prelim injunction which has prevented trans ppl from obtaining gender marker changes on their drivers’ licenses for nearly two years. 🥳🥳
Opinion:

what a flex. 😘

Gang databases are basically a version of this already though, right?

Very proud of the KU Law chapter of the American Constitution Society for receiving a Programming Award for their work this year. They reinvigorated the school’s chapter and put on several excellent events this spring, all on short notice. Looking forward to everything they’ll do next year!

👇🏻👇🏻👇🏻