82 Geo. L.J. 2079 (1993-1994)
Confession of Error in the Supreme Court by the Solicitor General; Rosenzweig, David M.

handle is hein.journals/glj82 and id is 2107 raw text is: Confession of Error in the Supreme Court by the
Solicitor General
DAVID M. ROSENZWEIG*
It's bad enough to have the Supreme Court reverse you, but I will be
damned if I will be reversed by some Solicitor General.1
-Learned Hand
Solicitor General Drew Days, III created a political uproar shortly after
assuming office in 1993. In his brief on the merits in Knox v. United States,2
Days argued to the Supreme Court that the Third Circuit Court of Ap-
peals had adopted an overly broad interpretation of a federal child pornog-
raphy statute.' Days urged the Court to vacate Stephen Knox's conviction
for receiving allegedly pornographic videotapes and remand for reconsidera-
tion by the lower court in light of Days's proposed interpretation of the
law.4 The Supreme Court agreed.5
Days's confession of error-his contention that the court of appeals
had committed legal error by applying an improper standard in affirming
Knox's conviction-reversed the position taken in the case by the Bush
Administration, which had defended the conviction in the Supreme Court.6
* Judicial clerk to Hon. Cynthia Holcomb Hall, United States Court of Appeals for the
Ninth Circuit. J.D., Georgetown University Law Center, 1994; A.B., Harvard College, 1986. I
would like to thank Professor Susan Low Bloch for her generous assistance in the research-
ing and writing of this note.
1. Quoted in Archibald Cox, The Government in the Supreme Court, 44 CHI. B. REc. 221,
225 (1963).
2. 114 S. Ct. 375(1993).
3. Knox was convicted under 18 U.S.C. § 2252 (1988), which prohibits the transportation,
reception, distribution, or possession of visual depictions that involve the use of a minor
engaging in sexually explicit conduct. The confession of error concerned the definition in 18
U.S.C. § 2256(2)(E) (1988) of sexually explicit conduct, which includes lascivious exhibi-
tion of the genitals or pubic area of any person. The government successfully argued in the
district court and court of appeals that this language applied to three videotapes found in
Knox's possession, even though the girls in the tapes wore bathing suits, leotards, or
underpants, because the tapes nonetheless exhibited the subjects' genital areas. Brief for
the United States at 3-8, Knox v. United States, 114 S. Ct. 375 (1993) (No. 92-1183). Days
argued, however, that neither the language nor the legislative history of the statute sup-
ported an interpretation that criminalized depictions in which the genitals or pubic area
were not actually visible (as opposed to covered by clothing), and in which the children
themselves were not lasciviously engaging in sexual conduct (as opposed to lasciviousness on
the part of the photographer or consumer). Id. at 9.
4. Brief for the United States at 10-13, 20-23, Knox v. United States, 114 S. Ct. 375 (1993)
(No. 92-1183).
5. Knox, 114 S. Ct. at 375.
6. Brief for the United States in Opposition at 6-12, Knox v. United States, 114 S. Ct. 375
(1993) (No. 92-1183).

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