NewYorkUniversity
LawReview

Essays

2022

Disarming the Finality Trap

Bryan Lammon

The federal courts of appeals have created—and acknowledged that they’ve created—a finality trap for would-be appellants. Litigants risk falling into the trap when they voluntarily dismiss some of their claims without prejudice and then try to appeal the district court’s resolution of other claims. Most courts of appeals see this as an attempted end run around the general rule that appeals must wait until all claims are resolved. After all, the without-prejudice dismissal means that the voluntarily dismissed claims might resurface at some future point. Most courts of appeals accordingly hold that the voluntary, without-prejudice dismissal does not result in a final, appealable decision. The trap springs when those courts then don’t provide a straightforward means for fixing the finality problem. Litigants are then left in litigation limbo. Their case is over and unchangeable in the district court. But the case is not final—and never will become final—for purposes of appeal.

The finality trap is asinine. And there’s an easy fix: Give would-be appellants the choice of either disclaiming the right to refile the voluntarily dismissed claims or returning to the district court to continue the action. This choice obviates any refiling concerns and ensures that the right to appeal is not lost due to a small procedural misstep.

Recent struggles with the finality trap also hint at an alternative approach to finality. When determining whether a district court has issued a final, appealable decision, courts normally look to the substance of the district court’s decision. That is, they ask whether the district court has actually resolved all of the claims. An alternative approach might ask only whether the district court is finished with an action. At that point—regardless of what the district court has done—the district court has entered a final decision. This shift in focus from what a district court has done to whether the district court is done might bring some much-needed clarity and simplicity to this area of the law.

Data Types, Data Doubts & Data Trusts

João Marinotti

Data is not monolithic. Nonetheless, the word is frequently used indiscriminately—in reference to a number of distinct concepts. It may refer to information writ large, or specifically to personally identifiable information, discrete digital files, trade secrets, and even to sets of AI-generated content. Yet each of these types of “data” requires different governance regimes in commerce, in life, and in law. Despite this diversity, the singular concept of data trusts is promulgated as a solution to our collective data governance problems. Data trusts—meant to cover all of these types of data—are said to promote personal privacy, increase corporate transparency, facilitate the sharing of data, and even pave the way for the next generation of artificial intelligence. These anticipated benefits, however, require the body and flexibility of equitable trust law and its inherent fiduciary relationships for their fruition. Unfortunately, American trust law does not allow for the existence of such general data trusts. If anything, the judicial, academic, and legislative confusion regarding data rights—or data’s status as property—demonstrates that discussions of data trusts may be ignoring a key element. Without first determining whether (or what kind of) data can be recognized as a trust res (i.e., as trust property) under existing law, it may be premature to accept data trusts as the private law solution to data governance. If, on the other hand, the implementation of data trusts requires legislative intervention, its purported benefits must be analyzed in contrast to the myriad other new and evolving data governance frameworks that would similarly require legislation. By analyzing existing trust law and the difficulties of defining data rights, this essay highlights the urgent need to pursue doctrinally, legislatively, and technologically viable data governance strategies.

Stipulating to Overturn Klaxon

Matthew J. Slovin

Contractual choice-of-law provisions allow parties to specify which jurisdiction’s legal principles should govern a future dispute. But even once a lawsuit has been filed, litigants have an opportunity to tell the court what law applies. For example, the parties might stipulate to the use of a state’s law. Or they might implicitly agree on the governing law simply by citing to cases from a particular jurisdiction in their respective briefs.

But what about the Supreme Court’s pronouncement in Klaxon Co. v. Stentor Electric Manufacturing Co. that federal courts exercising diversity jurisdiction must apply the choice-of-law rules of the state in which they sit? Might litigants skirt that important precedent by stipulating to the applicable law?

More often than not, federal courts analyze the validity of these agreements, which I refer to as intra-litigation choice-of-law agreements, without any consideration of forum state law. This Article argues that courts exercising diversity jurisdiction violate Klaxon when they rule on the validity of these agreements without due consideration of state law. There can be no “independent determinations by the federal courts” in conflicts of law. When federal courts fashion a rule that parties can or cannot displace forum state choice-of-law principles by agreement, they make such an independent determination. Whether intra-litigation choice-of-law agreements are valid is a question to be answered by state law. A contrary rule harms the interests of states, which must be free “to pursue local policies diverging from those of [their] neighbors.”

Justice for Emerging Adults After Jones: The Rapidly Developing Use of Neuroscience to Extend Eighth Amendment Miller Protections to Defendants Ages 18 and Older

Francis X. Shen, Fenella McLuskie, Erin Shortell, Mariah Bellamoroso, Elizabeth Escalante, Brenna Evans, Ian Hayes, Clarissa Kimmey, Sarah Lagan, Madeleine Muller, Jennifer Near, Kailey Nicholson, Job Okeri, Ifeoma Okoli, Emily Rehmet, Nancy Gertner, Robert Kinscherff

Federal and state court decisions over the past year are reshaping the contours of juvenile justice litigation. At the federal level, the Supreme Court’s recent decision in Jones v. Mississippi left intact the Court’s current commitment to treating age 18 as the dividing line between youth and adult criminal sentencing. If a youth commits a crime at age 17 years, 364 days, 23 hours, 59 minutes, and 59 seconds old, that youth cannot be put to death or receive mandatory life without parole (LWOP). One second later, these constitutional protections disappear. Calling into question this line drawing, litigants across the country are actively leveraging neuroscientific research to argue that emerging adults ages 18 through early 20s should receive the same constitutional protections as those under 18. While federal courts have not been receptive to this argument, some state courts are. Groundbreaking recent cases in Washington, Illinois, and Massachusetts state courts may signal a potential path forward. In light of these many recent developments, this Essay provides the first empirical analysis of how courts are receiving the argument to raise the age for constitutional protections and introduces a publicly accessible, searchable database containing 494 such cases. The data suggest that at present, Eighth Amendment arguments to categorically extend federal Miller protections to those 18 and above are unlikely to win. At the same time, however, state constitutions and state-level policy advocacy provide a path to expand constitutional protections for emerging adults. We discuss the implications of these trends for the future use of neuroscientific evidence in litigation concerning the constitutionality of the death penalty and LWOP for emerging adults. As this litigation moves forward, we recommend further strengthening connections between litigants and the scientific and forensic communities. Whether at the state or federal level, and whether in courts or legislatures, the record should contain the most accurate and applicable neuroscience.

First Amendment Battles over Anti-Deplatforming Statutes: Examining Miami Herald Publishing Co. v. Tornillo’s Relevance for Today’s Online Social Media Platform Cases

Clay Calvert

Florida adopted a statute in 2021 barring large social media sites from deplatforming—removing from their sites—candidates running for state and local office. Soon thereafter, Texas adopted its own anti-deplatforming statute. A trade association representing several major social media companies is now challenging the laws in federal court for violating the platforms’ First Amendment speech rights. A central issue in both NetChoice, LLC v. Moody (targeting Florida’s statute) and NetChoice, LLC v. Paxton (attacking Texas’s law) is the significance of the U.S. Supreme Court’s 1974 decision in Miami Herald Publishing Co. v. Tornillo. In Tornillo, the Court struck down a Florida statute that compelled print newspapers that published attacks on political candidates’ character or record to provide access in their pages for those political candidates’ replies. This Article examines the relevance of Tornillo’s aging precedent in conferring print newspapers with a right of editorial autonomy and a right not to be compelled to speak in today’s social media, anti-deplatforming cases. The Article avers that while Tornillo may help the platforms with their legal challenges, its impact is cabined by several crucial factual and legal distinctions. The Article concludes that dicta regarding both access and social media platforms in the U.S. Supreme Court’s 2017 decision in Packingham v. North Carolina could play a surprising role in pushing back against Tornillo.

2019

Dirty Data, Bad Predictions: How Civil Rights Violations Impact Police Data, Predictive Policing Systems, and Justice

Rashida Richardson, Jason M. Schultz, Kate Crawford

Law enforcement agencies are increasingly using predictive policing systems to forecast criminal activity and allocate police resources. Yet in numerous jurisdictions, these systems are built on data produced during documented periods of flawed, racially biased, and sometimes unlawful practices and policies (“dirty policing”). These policing practices and policies shape the environment and the methodology by which data is created, which raises the risk of creating inaccurate, skewed, or systemically biased data (“dirty data”). If predictive policing systems are informed by such data, they cannot escape the legacies of the unlawful or biased policing practices that they are built on. Nor do current claims by predictive policing vendors provide sufficient assurances that their systems adequately mitigate or segregate this data.

In our research, we analyze thirteen jurisdictions that have used or developed predictive policing tools while under government commission investigations or federal court monitored settlements, consent decrees, or memoranda of agreement stemming from corrupt, racially biased, or otherwise illegal policing practices. In particular, we examine the link between unlawful and biased police practices and the data available to train or implement these systems. We highlight three case studies: (1) Chicago, an example of where dirty data was ingested directly into the city’s predictive system; (2) New Orleans, an example where the extensive evidence of dirty policing practices and recent litigation suggests an extremely high risk that dirty data was or could be used in predictive policing; and (3) Maricopa County, where despite extensive evidence of dirty policing practices, a lack of public transparency about the details of various predictive policing systems restricts a proper assessment of the risks. The implications of these findings have widespread ramifications for predictive policing writ large. Deploying predictive policing systems in jurisdictions with extensive histories of unlawful police practices presents elevated risks that dirty data will lead to flawed or unlawful predictions, which in turn risk perpetuating additional harm via feedback loops throughout the criminal justice system. The use of predictive policing must be treated with high levels of caution and mechanisms for the public to know, assess, and reject such systems are imperative.

2018

Hiding the Ball

Pierre Schlag

Lawyers, judges, law teachers, and law students are forever telling each other what the law is. Whether they are issuing briefs, opinions, or law review articles, they are forever staking out legal positions. And when they stake out these legal positions, they are always ascribing them to some ostensibly authoritative legal source. Hence, it is that legal actors and legal thinkers say things like, “The Constitution requires… ,” “The doctrine of worthier title provides … ,” “The parol evidence rule states that… ,” “18 U.S.C. 1503 prohibits … .” And so on.

The Bad Man and the Good Lawyer: A Centennial Essay on Holmes’s The Path of the Law

David Luban

This Essay explores the connections between Justice Holmes’s ideas about law practice and his jurisprudence. What we discover, or so I will argue, is an unfamiliar Holmes–a Holmes whose arguments differ in important respects from the standard positivist and realist ideas that later generations read back into The Path of the Law. I want to suggest that reading Path as proto-Hart, proto-Frank, or proto-Cohen distorts a good deal of what Holmes actually says. In my view, Holmes’s penchant for radical rhetoric leads him to overstate the conclusions that he actually means to establish and lands him in fallacies that I explore in some detail. Holmes had a more moralistic picture of lawyers and clients than his own tough talk suggests, and I will suggest that this accounts for the fallacies. In short, reading Path as an implicit definition of the good lawyer helps us distinguish the sound from the specious in the essay’s jurisprudence.

Bleeding Heart: Reflections on Using the Law To Make Social Change

Thomas B. Stoddard

“When and how, if ever, can the law change a society for the better? Are there more successful and less successful ways to make social change? Is the law an effective tool for social change? (Or should I have become a social worker instead of a lawyer?) Are there any lessons to be learned from the attempt by so many lawyers of my own generation to make social and cultural change through the formal rulemaking mechanisms of the law?”

This Essay is Professor Stoddard’s last work, which he was writing at the time he became ill. The Essay addresses the themes that ran through Professor Stoddard’s entire career as a public interest lawyer, focusing specifically on the ways in which litigation can make social change, and its limitations in that regard.

Lawyering for Social Justice

Nan D. Hunter

Not many of us are pioneers, but Tom Stoddard was. He fought for equality for lesbian and gay Americans before it was respectable; he was proudly out as a gay man before it was professionally safe to be out; and he taught one of the first courses centering on the rights of lesbians and gay men in any American law school. He lived to see the lesbian and gay civil rights struggle take its place with others as a campaign for human dignity and justice. Tom’s final Essay, Bleeding Heart Reflections on Using the Law to Make Social Change, is a reflection on the relationship between litigation, legislation, and the possibilities for law to operate as “culture-shifting” rather than merely “rule-shifting.” I argue that the litigation-legislative dynamic is more structurally complicated than the description in Bleeding Heart suggests, and highly contingent on the historical moment. I comment on what I think is one of the most significant aspects of the Bleeding Heart argument: the implicit assumption that lesbian and gay rights advocates have the potential to regularly win in the legislative arena. Lastly, I offer some thoughts on how one can more consciously seek a culture-shifting practice of law.