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In the 2010s, the United States entered a pedestrian safety crisis that is unique among wealthy nations. Deaths of people on foot surged more than 46% that decade, outpacing the increase in all other traffic deaths by nine to one. The early 2020s have seen an intensification of this trend. These fatalities magnify racial disparities, placing Black pedestrians at a two-thirds higher risk of being killed than their white counterparts. While the pedestrian safety crisis has many causes, there is growing evidence that the enlargement of the American vehicle has played a key role. Auto companies earn higher profit margins on large vehicles, and consumers prefer their greater creature comforts. But the size, height, and weight necessary for those comforts has been shown to make these vehicles far deadlier for those who have the misfortune of being struck by them. Carmakers do not disclose these risks to the car-buying public—but even if they did, individual consumers lack appropriate incentives to internalize the social costs of the vehicles they buy. Like pollution, this negative externality presents a classic case for regulation. Yet America’s vehicle safety regulator (the National Highway Transportation Safety Administration, or NHTSA), conceived in the wake of the Ralph Nader consumer revolution of the 1960s, considers the safety of pedestrians—who are third parties rather than consumers—almost completely alien to its mission.                    

This Essay presents a different model, based on NHTSA’s own statutory mandate to protect “the public” as a whole from risks posed by motor vehicles. It argues that pedestrians are, quintessentially, a group whose well-being vehicle safety regulators should prioritize—even though when acting as pedestrians they are not consumers of the regulated product. Pedestrians are maximally exposed to dangerous vehicles, and by definition they benefit from neither vehicle comforts nor most occupant-focused safety features. They may even be endangered by some of them. NHTSA should expressly incorporate the welfare of pedestrians and other non-occupants into its mission. To that end, this Essay develops four policy actions NHTSA should undertake as part of a policy update it launched in 2022: include pedestrian safety in its marquee safety evaluation program; regulate the design of vehicles to protect people outside of them; use technology to protect pedestrians; and update its safety tests so they are more representative of common fatal pedestrian crash victims and scenarios.

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 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.

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.

The Supreme Court for decades has said that Congress, by statute, may create rights and that the infringement of those rights is a sufficient injury to allow standing to sue in federal court. But in TransUnion LLC v. Ramirez, in June 2021, the Court said that federal laws creating rights may be a basis for standing only if the right protected is one for which there is “a close historical or common-law analogue.” This principle, if followed, would mean that countless federal laws—ranging from the Freedom of Information Act to civil rights statutes to environmental laws to the prohibition of child labor—could not be enforced in federal court because they create statutory rights that did not exist historically or at common law. Such an approach would be a radical, undesirable change in the law, particularly as a matter of separation of powers. Congress always has had the authority, and should have the power, to create enforceable rights by statute.

Antitrust litigation often requires courts to consider challenges to vertical “control.” How does a firm injure competition by limiting the behavior of vertically related firms? Competitive injury includes harm to consumers, labor, or other suppliers from reduced output and higher margins.

Historically, antitrust considers this issue by attempting to identify a market that is vertically related to the defendant, and then consider what portion of it is “foreclosed” by the vertical practice. There are better mechanisms for identifying competitive harm, including a more individualized look at how the practice injures the best placed firms or bears directly on a firm’s ability to reduce output and increase its price without losing so many sales that the price increase is unprofitable. This Article discusses these mechanisms.