Recent Print Articles
Neglected, Perplexing, Unpredictable: Remedies in International Commercial Arbitration
Charles H. Brower II
The Article concludes that the applicable substantive law and the parties’ prayers for relief are the two most important factors affecting the selection of remedies in international commercial arbitration. This perspective envisages that arbitrators will perform a narrower role than is often contemplated. But it also a perspective that increases predictability and channels the exercise of discretion on the single most important topic in international commercial arbitration.
Powerless Beings: Solitary Confinement of Humans and Nonhumans in America
Michael B. Mushlin & David N. Cassuto
This Article uses a comparative format to examine the moral, penological, and scientific shortcomings of solitary confinement across species. Part I describes how solitary confinement is used in human and nonhuman settings and shows the deep wounds that it inflicts in both. Part II examines why the legal structures under which solitary confinement is imposed (on humans and nonhumans) offer inadequate protections from its depredations. Part III argues that incarcerated beings have no legal protections because they are powerless and invisible. In Part IV, the authors write individually. The author with expertise in prison law (Mushlin) describes how solitary confinement would end in penal facilities if prisoners were empowered and their rights protected. Next, the author with expertise in animal law (Cassuto) explains why solitary confinement for animals in zoos, aquariums, and laboratories should and could be abolished. The authors conclude with a call to empower creatures subjected to solitary confinement. If all vulnerable beings are adequately protected, the unnecessary suffering inflicted by solitary confinement will finally end.
What Roosevelt Did to Brown v. Board of Education, or Race and Court Packing
Jill M. Fraley
In the decades when Roosevelt’s court packing attempt remained in lived memory, Brown was never going to fully succeed in the South, where it did not have the majority support of the population. The Court simply did not have the power to demand public acquiescence or sway public opinion. This understanding of the Court’s power matters today, as both court packing and court reforms are brewing in American politics. Any future changes must be done with a nuanced understanding of how the public will view the Court and what precedents we set that will be mirrored at the state level.
Shared Housing as a Missing Middle Solution for Rural Communities
Alison Lintal
This Article demonstrates that shared housing, particularly among seniors, can be a successful model for providing affordable housing in rural areas. It will identify and examine the legal impediments to implementing shared housing programs which include: (1) failure to meet building code and internal density requirements; (2) antiquated definitions of family and cohabitation under zoning laws with a need for statutory permission for unrelated people desiring to live together; (3) restrictive occupancy codes; (4) property and income tax consequences as well as impact on public benefits eligibility; (5) lack of traditional landlord tenant protections for informal shared housing arrangements; and (6) limited fair housing protections for shared housing arrangements. In addition, funding and financing shared housing under current conventional and government financing structures presents challenges.
Rising Tides, Rising Premiums
Kevin Freudenberg
Insuring flood-prone properties is a complex insurance problem. Attempts by the U.S. federal government to step in and correct perceived private market failures have often exacerbated the problem by artificially subsidizing building and rebuilding activity in low-lying areas. This article describes the fundamental problems inherent in the design of the National Flood Insurance Program (NFIP) by analyzing the program through the lens of the insurance concepts of moral hazard and adverse selection. It also provides a comparative view of flood insurance schemes globally, and suggests possible reforms.
Enforcing the ADA: How the Eighth Circuit Has Interpreted Undue Hardship to Employers When Examining Mandatory Reassignment as a Reasonable Accommodation Under the ADA—Huber v. Wal-Mart Stores, Inc.
Matthew Zabek
In Huber v. Wal-Mart Stores, Inc., the Eighth Circuit joined a circuit split regarding whether it is mandatory under the Americans with Disabilities Act of 1990 for an employer to accommodate a disabled employee by reassigning them to a vacant position, even if they are not the most qualified individual available to fill that position. The Eighth Circuit asserts that the ADA is an anti-discrimination statute, and therefore should not impose automatic employment preferences like mandatory reassignment. Courts on the opposite side of the split have held that the ADA requires mandatory reassignment because if it did not, the reassignment provision would lack meaning and enforceability. While Huber continues to embody the stance of the Eighth Circuit, other courts have continued to uphold mandatory reassignment under the ADA with legal analysis and argument that was not considered by the Eighth Circuit. This Note provides background and analysis of the ADA and the circuit split regarding mandatory reassignment and provides an argument that the Eighth Circuit should reevaluate its position opposing mandatory reassignment as a reasonable accommodation under the ADA.
Zero Progress on Zero-Days: How the Last Ten Years Created the Modern Spyware Market
Mailyn Fidler
Spyware makes surveillance simple. The last ten years have seen a global market emerge for ready-made software that lets governments surveil citizens and foreign adversaries alike and to do so more easily than when such work required tradecraft. The last ten years have also been marked by stark failures to control spyware and its precursors and components. This Article accounts for and critiques these failures, providing a socio-technical history since 2014, focusing on the conversation about trade in zero-day vulnerabilities and exploits and more recently spyware. This Article also applies lessons from these failures to guide regulatory efforts going forward. While recognizing that controlling this trade is difficult, I argue countries should focus on building and strengthening multilateral coalitions of the willing rather than on strong-arming existing multilateral institutions into working on the problem. Individually, countries should focus on entity- or use-based export controls and leverage broader sanctions that target specific bad actors rather than focusing on technology-specific controls. Last, I continue to call for transparency as a key part of oversight of domestic governments’ use of spyware and related components.
Legal Issues in Blockchain, Cryptocurrency, and Non-Fungible Tokens (NFTs)
Christa J. Laser
When do new technologies require changes in the law? Judge Easterbrook argued in 1996 that there is no more need for a “Law of Cyberspace” than there ever was for a “Law of the Horse.” Rather, existing laws spanning multiple fields are often sufficient to cover niche factual applications and even new technological change. The same is true now for “The Law of Blockchain.” Nonetheless, blockchain marketplace participants lack any cohesive, useful analysis to turn to that is neutral in outcome and performs a comprehensive analysis spanning the multitude of laws affecting the whole ecosystem. We might not need a “Law of Blockchain,” yet this article hopes to shed light on the wide scope of existing laws that apply to this new technological era. This article uses legal issues in blockchain to explain when new technology requires new law. Typically, new law is not needed unless existing law fails to provide the rights to assist private bargaining, to yield outcomes contrary to current policy goals, or to address a new type or degree of harm.
Unfair Discrimination Standards, Actuarial Fairness, and Insurers’ Use of Big Data
Laura L. Arp
This Article attempts to unpack the multiple and complex facets present in the definition of unfair discrimination—and in particular proxy discrimination—as applied to insurance, even while the regulatory framework for insurers’ use of machine learning to set rates is being constructed. Several comparisons are made across U.S. and international sources to frame the issue and its concepts. There may never be agreement on the definition of rate fairness in the context of personal insurance, but rates should be grounded in the insured’s likelihood to incur losses. Before regulators and policymakers engage in an expensive and time-consuming effort to split factors into categories that are fair or unfair in the context of big data, artificial intelligence, and machine learning, the focus should be on making sure that these new tools produce accurate rates.
Funding Futurist Ideas
David Nows
Borrowing from the templates created by the United States through its Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) programs, as well as global programs run through organizations like the United Nations Children’s Fund (UNICEF), this article advocates for a novel international grant funding program for new entrepreneurial ventures that seek to provide solutions to significant global challenges. Using the United Nations (U.N.) Sustainable Development Goals (SDGs) as a guide, this article is the first to propose a framework for funding new entrepreneurial ventures that do not meet the traditional criteria of financial investors but seek to solve important future-facing global problems. While past scholarship has addressed the strengths and weaknesses of investment and grant funding options for new ventures, this article significantly contributes to the literature by combining many of these scholarly ideas into a comprehensive program that would provide necessary capital to world-changing entrepreneurs who would otherwise not receive funding.