Incentivizing Accelerated Federal Student Loan Repayment, a Small Change
Steve Lydick, Erickson Sederstrom, PC, LLO, Omaha, Nebraska
This Comment suggests incentivizing accelerated repayment as a practical solution to provide relief to stakeholders in the federal student loan program. By using its existing legal authority, the Department of Education can permit borrowers to satisfy their loan obligations through partial overpayments. This strategy allows borrowers to play a more active role in expediting their loan repayment, benefiting both the borrowers and the Department.
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.
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.
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.
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.
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.
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.
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.
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.
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.