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.
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.
Saving the Savings Clause in Federal Habeas Jurisprudence
Alex Kleinjan
The Great Writ of habeas corpus, safeguarded by our Constitution as an essential guarantor of liberty, took its current shape over the course of American history as Congress established, expanded, and eventually limited the power of federal courts to issue the writ. Although the Antiterrorism and Effective Death Penalty Act of 1996 imposed harsh new limitations for federal prisoners seeking habeas relief more than once in the same case, Congress’s amendment of the relevant procedural statutes left intact the “savings clause,” allowing such prisoners to file additional requests for relief where the prisoners’ prior requests were “inadequate or ineffective to test the legality” of their imprisonment.
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.
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.
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.
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.
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The mission of the Nebraska Law Review Bulletin is to cultivate legal education and scholarship in Nebraska by focusing on law in Nebraska and the Eighth Circuit, to be a source of legal updates for Nebraska and Eighth Circuit practitioners, and to foster communication across the various segments of the legal community. The Bulletin publishes short commentaries on legal developments in Nebraska and the Eighth Circuit as well as short responses to articles and notes published in the Review. The online journal format also allows for discussion and feedback.
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