The Unsettled State of Corporate General Personal Jurisdiction
Anthony J. Gaughan
This Article examines Mallory’s unsettling ramifications for corporate general personal jurisdiction. It proceeds in four parts. Part I explains the rationale behind the Court’s ruling. Part II examines the judicial uncertainty and inconsistent rulings that plagued corporate general personal jurisdiction before Goodyear. Part III argues that the Goodyear trilogy brought long overdue stability, consistency, and predictability to corporate general jurisdiction. When combined with the Court’s recent clarification of specific jurisdiction’s scope, Goodyear and its companion cases placed plaintiffs and defendants on a level playing field. But the Mallory decision destroys that equilibrium and creates a new era of instability in corporate general jurisdiction. Part IV warns of the consequences if the Court fails to salvage at least some of the stability achieved by the Goodyear trilogy. As Justice Alito noted in his concurring opinion in Mallory, there is a strong case to be made that general-jurisdiction-by-registration statutes violate the Dormant Commerce Clause. At present, however, Mallory clears the way for legislatures to coerce foreign corporations to consent to all-purpose jurisdiction without running afoul of the Due Process Clause. Left unchecked, the ruling will give rise to a patchwork quilt of conflicting general jurisdiction rules and questionable choice-of-law determinations. Mallory may thus go down in history as the case that turned the clock back to the unsettled pre-Goodyear era of corporate general jurisdiction.
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.
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.
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.
Codifying Murphy’s Law: The Necessity of a Statutory Intrastate Mutual Aid Compact (IMAC) in Nebraska
Taylor Brown
For the law to be used as an effective mitigation and prevention tool in these circumstances, Nebraska needs a codified Intrastate Mutual Aid Compact (“IMAC”) to respond effectively to disasters within its borders so that the most vulnerable populations are not left unprotected when first responders are overwhelmed. Further, first responders should not be primarily concerned about what will happen to them if they are injured while responding to others in need. This Comment will evaluate what Nebraska already has in place, what Nebraska lacks in litigation mitigation, and how a well-structured IMAC solves these problems.
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.
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.
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.