Essays

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.”

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.

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.

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.

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.

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.

“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.

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.

This Essay, developed in a prologue and three parts, adopts Latinas'/os' world traveling as a metaphor for Latina/o multidimensionality and as a springboard for LatCrit theorizing. The Prologue is a brief diary entry of un fin de semana viajando mundos–a weekend of actual traveling between New York and Miami; law and familia; profesora and learner; colleague and hija; espanol and English; norte y sur; normativa and other; indigenous and alien. This abbreviated record of a Latina's life reveals, exposes, and unveils Latinas'/os' daily crossdressing simply by virtue of their latinidad. The Essay explores two sets of relationships vis-a-vis their significance to and impact on the development of LatCrit theory.

Once upon a time, there was a constitutional amendment that had avoided all of the disputes characteristic of constitutional law. The Supreme Court had never even mentioned it. Only four district court decisions had in any sense turned on the Amendment’s meaning. Law schools did not hold symposia exploring the subtleties of the Amendment. The definitive law review article on the Amendment had yet to be written. The most attention the Amendment received was as an example of a constitutional provision so straightforward that it generated few of the interpretive controversies that lurked elsewhere in the Constitution.