Congress's chosen remedy for the proliferation of online revenge porn has a design flaw. The Violence Against Women Reauthorization Act, codified in 15 U.S.C. 6851, provides a civil right, enforceable in federal court, to victims of nonconsensual pornography. However, exceptions for matters within the "public concern," written into the statute with the First Amendment in mind, weaken the force of the Act and threaten to make its proscriptions a nullity. This Note calls on Congress to narrow the public concern exception in the Violence Against Women Reauthorization Act to include only matters of political significance. Such an amendment will honor the First Amendment's guaranty of free speech and ensure that evolving notions of newsworthiness do not work to burden those seeking relief under the Act.
This Article rethinks the functions and functioning of litigation booms. Using an original data set that tracks Fair Labor Standards Act cases during the 2000-2016 period, the Article shows that booms are not anomalies but are instead an expected behavior in our distributed system of civil law enforcement. Specifically, plaintiffs and their lawyers "herd" or converge on a particular type of case, fueled by information transmitted via networks, made available to the general public, or both. The data also reveal that booms can end on their own, reaching a natural tipping point without legislative or judicial retrenchment. This analysis has normative implications, suggesting that litigation-suppressing legislative or judicial intervention may not always be necessary, though tweaks to system design could achieve more efficient outcomes and more equitably distributed access to legal representation.
For years, minor league baseball players received salaries far below the federal minimum wage, despite working sixty hours per week. It was not uncommon for these professional athletes to share cramped hotel rooms, sleep on floors, or live out of their cars. Most had to secure loans and pursue odd jobs to make ends meet during the offseason. Such sacrifices were necessary for minor leaguers to achieve their dreams of reaching the major league level, particularly as those abysmal working and living conditions became entrenched by adverse legislation and judicial rulings. Only within the last five years have minor leaguers experienced material improvements in pay and working conditions, thanks primarily to the first-ever unionization and ensuing collective bargaining agreement in minor league baseball history. But they have yet to reach home plate. Recent actions from Major League Baseball, most pertinently, its revamp of the minor leagues in 2020, evince its intent to remove Major League Baseball affiliation from up to half of minor league teams upon expiration of that collective bargaining agreement. The resulting circumstances for players and teams stripped of their major league affiliation-that is, those who have been "contracted"-largely mirror the circumstances of minor league baseball's pre-union "dark days." This Note defends against Major League Baseball's unilateral, capital-driven action by arguing that the number of affiliated minor league teams constitutes a mandatory subject of bargaining under the National Labor Relations Act. Beyond offering the Major League Baseball Players Association a new pitch in its arsenal to advocate for overturning baseball's historic antitrust exemption, a ruling that contraction is a mandatory bargaining subject is necessary to ensure the continued viability of minor league baseball.
American zoning is under attack on multiple fronts. The concerns of zoning's many critics range from social and racial justice, to private property rights, to the extreme shortage of affordable housing, to climate-change resilience and sustainability. A growing number of voices have called for, at a minimum, the elimination of single-family zones; some even champion the abolition of this ubiquitous method of American land use regulation. This Article is the first detailed look at what would happen if zoning's critics got their way. The most efficient means for erasing zoning from American law would be for the U.S. Supreme Court to find it unconstitutional, so this Article features excerpts from three fictitious Supreme Court opinions that reflect the jurisprudence of today's iteration of the Roberts Court. Unfortunately for those who see the elimination of zoning as a magic bullet for many of society's ills, a judicial declaration that zoning violates the protections afforded by the Due Process, Takings, Equal Protection, and Contracts Clauses would only result in the re-creation of some of zoning's most problematic aspects, bringing American society back to square one. Moreover, eliminating classic ("Euclidean") zoning would invalidate modern modifications that respond to current socioeconomic and environmental conditions. Rather than waving goodbye to zoning, this Article offers four achievable steps that local and state governments can take today to continue the longstanding process of adapting zoning (the good and the not-so-good) to changing realities.
Popular resistance to the weaponization of government has eroded in America. On the political Right, the post-Reagan consensus favoring limited government has given way to a new generation of leaders-like Vice President J.D. Vance and Florida Governor Ron DeSantis-who openly advocate for using state power against their political opponents. Collectively they are the New Right: a populist, antiestablishment, conservative movement opposing pluralistic systems, institutions, and cultural elites. While both political liberals and conservatives have wielded state power against their adversaries, leveraging state power to reward friends and punish enemies is fundamental to the New Right's worldview. Following German jurist Carl Schmitt's political theory, the New Right frames government as a tool for waging cultural and political battles. In this environment, politicians explicitly declare their intent to retaliate against critics for exercising their First Amendment rights, yet their official retaliatory actions often escape judicial scrutiny by maintaining facial neutrality. Current First Amendment retaliation doctrine, complicated by the principle set forth in United States v. O'Brien, is ill-suited to address this movement. The O'Brien principle holds that courts cannot invalidate an otherwise constitutional statute solely based on alleged improper legislative motives. This Note critiques O'Brien's rigid framework while offering one of the first analyses of National Rifle Association of America v. Vullo, where Justice Ketanji Brown Jackson's concurrence offered First Amendment retaliation doctrine as a possible analytical framework for the government retaliation in that case. Drawing on the factors established in Village of Arlington Heights v. Metropolitan Hosing Development Corp., this Note proposes a more holistic approach to retaliation claims that considers both government actions' effects and officials' statements in uncovering retaliatory intent. By reconsidering the application of O'Brien, this Note aims to safeguard free speech against the backdrop of a political environment increasingly characterized by the strategic use of state power for partisan purposes.
Through the advancement of modern medical technology, including life-support machines and in vitro fertilization, it may soon become possible to carry out brain-dead surrogacy-that is, gestational surrogacy in brain-dead carriers. When a person experiences brain death, life-support machines can nevertheless artificially maintain the body's homeostatic functions, including the ability to gestate a fetus, for several years thereafter. There have already been several reported instances of brain-dead pregnant people on ventilation successfully carrying and delivering children. In light of the United States' historical interest in promoting familymaking, this emerging avenue for surrogacy could increase the availability of surrogates and expand opportunities for infertile couples to welcome a child. Yet so far, no literature has considered the implementation of brain-dead surrogacy from a legal perspective. This Note evaluates the efficacy of brain-dead surrogacy under three different legal frameworks: contracts, organ donation, and wills. These analyses seek to identify an application of brain-dead surrogacy that most effectively protects the interests of the surrogate, the intended parents, and the child alike. Ultimately, brain-dead surrogacy would be best effectuated under the wills framework, by honoring testamentary dispositions of one's body for reproductive purposes. The wills framework is optimal because it would (1) make altruistic brain-dead surrogacy enforceable; (2) avoid some harms associated with commercial surrogacy; (3) ensure exclusive and informed consent by the testator-surrogate; and (4) safeguard intended parents' expectations of parenthood.
The empirical study of shareholder litigation in state courts is a seriously underexamined subject. To remedy this gap, we collected data on all 4,741 fiduciary duty complaints filed in the Delaware Court of Chancery over a sixteen-year period, from January 1, 2004, to December 31, 2019. After removing the duplicative cases consolidated into a lead complaint, the number of unique complaints was reduced to 2,958 in our dataset. In our coding, we examined over one hundred variables (with many variables being further subdivided into as many as eight subvariables) for each of these cases, including information about the parties, claims, motions, fees, outcomes of each motion filed, and final disposition of the case. We begin this overview of our study by focusing closely on differences our data shows exist among the three forms that such suits take: class actions, derivative suits, and individual suits. We analyze how experiences with such suits vary depending on a range of variables, such as the form of the suit, the nature of the suit's plaintiff, whether the suit involves a public company (and, if so, the public company's relative size), whether the suit involves an acquisition, and the suit's final disposition (e.g., dismissed, settled, adjudged). In this inquiry, nearly one-quarter of the suits in our dataset involve purely independent claims, which provide a ready reference to assess whether representative suits (i.e., class and derivative claims) reflect long-feared agency costs from their counsel. Commentators have long asserted class and derivative suits suffer such costs because the suit's representative plaintiff is a mere figurehead and the plaintiff's counsel is the one with true skin in the game. This study also provides a time-series analysis that allows us to analyze evolving trends in the data. To do this, we first divide our database into acquisition-related cases (52% of the sample) and non-acquisition-related cases (48% of the sample). We next separate acquisition cases into three time periods that are distinctly impacted by economic and legal developments. For example, one of our time periods enables us to observe the full impact of a trilogy of important Delaware court decisions: Kahn v. M&F Worldwide Corp., Corwin v. KKR Financial Holdings LLC, and In re Trulia, Inc. Stockholder Litigation. Finally, our data provides a rich backdrop against which the social value of shareholder litigation can be assessed. Not only do we present extensive data on the final dispositions of the cases filed during our sixteen-year study period, but we also combine that information with data bearing on attorney effort during the course of litigation, fees awarded, and the outcomes of the suit. In this context, we gather information on frequent-filing attorneys and law firms. One important finding of our study is that while a small handful of attorneys garner significant fee awards, this cohort of attorneys does not overlap the short list of attorneys and firms that constitute about half of all complaint filings, which we refer to as "frequent filers."
Even as artificial intelligence ("AI") promises to turbocharge social and economic progress, its human costs are becoming apparent. For example, self-driving technology will someday make traffic jams a thing of the past, but technologists now acknowledge that it will never eliminate all traffic deaths. By design, AI behaves in unexpected ways. That is how it finds unanticipated solutions to complex problems. But unpredictability also means that AI will sometimes harm us. To curtail these harms, scholars and lawmakers have proposed strict regulations (to help ensure firms develop safe algorithms) and strict corporate liability (for injuries that nonetheless occur). These rigid approaches go too far. They dampen innovation and disadvantage domestic firms in the international technology race. The law needs a more nuanced approach to holding corporations liable for their AI, one that balances progress with fairness. Tort law offers a compelling template. The challenge is to adapt its distinctly human notion of fault to algorithms. Tort law's central liability standard is negligence, which compares the defendant's behavior to an external reasonableness benchmark. But there is no clear comparison class for AI. Assessing algorithms by reference to how reasonable people behave would set too low of a bar-AI can and should outperform humans on many tasks. Assessing AI instead by reference to itself is often impossible-there are not enough algorithms in many contexts to establish a meaningful baseline. This Article offers a novel negligence standard for AI. Instead of comparing any given AI to humans or to other algorithms, the law should evaluate it against both. By this hybrid measure, an algorithm would be deemed negligent if it causes injury more frequently (e.g., causes more accidents per mile driven) than the combined incident rate for all actors-both human and AI- engaged in the same type of conduct. This negligence standard has three attractive features. First, it offers a baseline even when there are very few comparable algorithms. Second, it incentivizes firms to release all and only algorithms that make us safer overall. Third, the standard evolves over time, demanding more of AI as algorithms improve and proliferate.
On its face, the Form I-213 appears to be a humble bureaucratic form unremarkable to the untrained eye. In reality, this document alone can singularly sustain the federal government's case for the deportation of a noncitizen in removal proceedings. The Form I-213 sits at the cradle of interlocking judicial and procedural norms within immigration practice that largely diminish the due process rights of noncitizens facing deportation. This Article sheds light on two important but relatively underexamined phenomena that undergird this system: how a disregard for evidentiary rules largely eliminates the government's burden of proof in removal proceedings and how judicial deference to government agents systemically enables this practice. This Article explores the foregoing dynamic through the lens of the Form I-213, a government form generated by federal immigration officials that is frequently used to demonstrate a noncitizen's deportability. Instead of holding federal immigration agents to basic standards of evidentiary practice, the immigration courts deftly formulated a special evidentiary rule to ensure the routine admissibility of the Form I-213, deeming it an "inherently reliable" document. Every circuit court to have considered this issue categorically adopted the inherent reliability rule, generally without analysis or consideration of the liberty interests at stake for individuals facing deportation. While the federal government carries the initial burden of proof in removal proceedings, this burden is rendered meaningless when government agents can generate dispositive evidence, knowing that judicially constructed evidentiary rules render such evidence admissible as a matter of course. When removal proceedings are predicated on such a power asymmetry from the outset, noncitizens facing deportation start off even more deprived of due process than the statutory scheme envisions. The construction of this rule that provides special treatment to Form I-213s, and its unblinking acceptance by the federal courts, is emblematic of how due process deficiencies in administrative courts can become so embedded in practice that they largely go unnoticed. Despite the fact that a legal framework exists for evaluating the sufficiency of procedural rules in protecting due process rights of individuals in administrative hearings, these practices often charge forward in the name of efficiency without any meaningful evaluation of the due process implications. By deeply exploring constructs like the inherent reliability rule that have been unquestioningly adopted by administrative adjudicators and the federal courts alike, we can more effectively calibrate the optimal balance between achieving efficiency and protecting the liberty interests at stake for those in administrative proceedings.
There are many theories of constitutional interpretation. Most, but not all, of them assert that, in interpreting the Constitution's provisions, we should start by taking seriously the intentions of the enactors, meaning, roughly speaking, its drafters, defenders and ratifiers. This Article argues that, in doing so, judges, scholars and policymakers have underestimated an important feature of the process of constitution-making: the discontent of the enactors themselves with the Constitution they were enacting. Time and again, during the Philadelphia Convention of 1787, during the penning of the Federalist Papers, and during the state ratifying conventions, the enactors expressed deep reservations about the structure and substance of the draft Constitution. They worried that it would lead to anarchy and tyranny. They worried that it would enshrine injustice into the policies of the new nation. And they worried that it would foment civil conflict and violence. These were not mere quibbles, the ordinary outcome of the messy process of compromise and negotiation. Their discontent went to the very foundation of the constitution. In short, many founders believed that the Constitution they created was not, in fact, good law. This Article argues that "original discontent," that is, the discontent of the enactors with the Constitution they were creating, is both underestimated and essential for understanding our constitution. Original discontent carries important implications for a wide range of the most common methods of constitutional interpretation. For originalists, it suggests that we should take the public statements of proponents of the constitution for what they were: more propaganda than heart-felt statement of belief. For living constitutionalists, it suggests that, even if we accept that judges should interpret the Constitution as laying down broad principles subject to evolving norms and moral beliefs, we must recognize that the founders were skeptical of those basic principles. For common good constitutionalists, it provides essential context about the original understanding of the constitution and its effects on the nature of the political community. More fundamentally, this Article argues that original discontent calls for a broader reconceptualization of the nature of constitutions. One of the basic tenets of constitutional interpretation has always been that a constitution is something like a social contract: it lets our past selves rule our future selves. But nothing about that formulation tells us which views should matter: is it the views of the most rabid proponent, or of the average citizen, or of the coalition that voted in favor? What about the views of dissenters, or the disenfranchised, or the enslaved? By uncovering the hidden history of discontent at the center of the constitution's creation, this Article highlights the importance of incorporating a wider range of perspectives into modern constitutional interpretation. It also provides a powerful reason for judicial restraint. If the Constitution was not thought to be a wise document even by those who drafted it, judges must exercise caution before using it to strike down democratically-enacted laws.
The hospitality industry has a sex trafficking problem: Seventy-five percent of sex trafficking victims report coming into contact with a hotel at some point during their trafficking. Though hotel franchisors publicly tout their efforts to combat sex trafficking, they are not properly or adequately incentivized to intervene in a meaningful way. The majority of hotels in the United States are franchised, and for every franchised room that is rented out-whether for sex trafficking or otherwise-hotel franchisors receive royalties. Further, franchisors are motivated to dictate material consistency, like what brand of soap to use, but not safety measures, because it allows them to benefit from uniform marketing while avoiding traditional vicarious liability claims for sex trafficking at their franchisee hotels. Hotel franchisors publicly disclose in environmental, social, and governance reports their efforts to combat human trafficking, but such reporting lacks standardization. Despite franchisors' awareness of the prevalence of sex trafficking in the industry, when victims pursue legal action, they often find that the hotel franchisors deny awareness as to that individual plaintiff. Franchisors' use of this "ostrich defense" has prevented sex trafficking victims from recovering damages from companies that have financially benefited from their trafficking. This Note advocates for an amendment to 18 U.S.C. 1595, the federal statute intended to combat sex trafficking, that would require hotel franchisors to collect and publicly report indicia of sex trafficking at their properties, as well as what steps they are taking to combat sex trafficking. This would allow plaintiffs to more effectively demonstrate knowledge on the part of hotel franchisors-one of the requirements under 1595-and in turn incentivize hotel franchisors to avoid liability by effectively intervening in sex trafficking at their franchisee hotels.
Stability is universally accepted as a central value in family law. Within the context of adult relationships, stability determines which relationships the law will recognize and support. Within the context of parent-child relationships, stability determines who will be recognized as a parent, whose parental rights will be terminated by the state, and who, among fit parents, will receive custody. This Article challenges stability's pride of place in family law, identifying three problems with the law's use of stability. First, stability is often used in a circular way. Lawmakers treat stability as a requirement-a trait to which the law responds-even while acknowledging that those same forms of stability are a consequence within the law's power to produce. This circularity proves that stability is doing very little analytical work. Second, stability is indeterminate. It has multiple meanings that often come into conflict with no agreed-upon hierarchy to choose among them. Third, as a result of the first two problems, lawmakers'prior views about relationships-like polyamorous relationships or same-sex relationships-and their assumptions about race and class will inevitably infect the determination of whether such relationships are stable and therefore worthy of legal protection. Family law's veneration of stability imperils already-marginalized family relationships. This Article proposes two reforms. Stability writ large should often be discarded in favor of specific markers-whether duration, financial security, psychological attachment, or others-that can be verified and weighed in light of desired policy outcomes. Scholars and lawmakers must also identify values beyond stability-such as fluidity, resilience, and satisfaction- to guide legal reforms and judicial decisionmaking.
Nuclear power offers the United States one viable path toward decarbonization of the energy sector as the only zero-emission energy source capable of baseload generation. Despite the clear climatic, economic, and energy independence benefits of expanding reliance on nuclear power and the emergence of cheaper, safer, and more efficient advanced reactor technology that has lowered barriers to adoption, buildout of nuclear generation capacity faces impediments. The lack of a comprehensive national nuclear waste management strategy is perhaps the most significant obstacle to the siting of new nuclear power facilities. Currently, due to the federal government's failure to establish a geologic disposal repository as required by statute, or to put forth an alternative plan for interim storage of waste, radioactive spent nuclear fuel is stored at civilian reactor sites where it will remain until a storage facility or repository is constructed and licensed to accept high-level nuclear waste. With global technology companies expressing interest in the collocation of energy-intensive data centers with reactors, the introduction of tax incentives to expand nuclear power production, and the rapid evolution of advanced reactor technology, the production and accumulation of high-level nuclear waste will accelerate. This Note examines the tension between the need for energy decarbonization and the deficiencies in the United States' federal nuclear waste management framework that discourage the buildout of nuclear power. It concludes that effective high-level waste management is an environmental imperative, and the development of suitable storage and disposal is a necessary precursor to the expansion of nuclear power. To that end, the federal government must specify and effectuate a coordinated nuclear waste policy. Federal agencies should rely on existing statutory authority to slow the accumulation of spent nuclear fuel at reactor sites, for example, by enabling and incentivizing investment in waste-reduction technologies and processes that are commonplace outside of the United States. Ultimately, Congress must amend unworkable provisions of the Nuclear Waste Policy Act to allow the administrative state to pursue nuclear waste solutions.
This Article advances a theory of entityness that theorizes the firm and its relationship to the acquisition premium. This theory is the first scholarly analysis to construct a general model of takeover valuation by integrating the modern finance theory of asset value and a corrected Coasean theory of the firm. The acquisition premium is an enigma. Acquirers must pay it. But why? Isn't the market price tethered to fundamental value through an efficient market? This enigma reveals a key insight about firms. The theory of entityness postulates that the acquisition premium is compensation for a capitalized asset intrinsic in the firm structure. This Article's core idea is that Coasean transaction cost incurred in firm creation is not really a "cost" as Coase and economists assert and have long believed as axiomatic. They are wrong. Coasean "transaction cost" begets entityness, the state of high, durable order and organization of factors of production within the legal boundary of the firm. Coasean "transaction cost" converts into a form of capitalized asset that impounds the value of entityness. If an acquirer seeks a corporate asset, it must unavoidably invest resources to organize factors of production since these things do not self-order in a world of free resources. This Article constructs a formal arbitrage argument that proves an acquirer cannot arbitrage away the need for this investment through an election of the form of acquisition (i.e., a strategic "buy" or "build" decision), and the law of one price must hold under both choices. The acquisition premium is payment for the precondition of a firm structure that is necessary to venture in a firm-that is, the firm's entityness. The value of this capitalized asset is monetized not in the capital market among traders of individual shares valued only on expectation of discounted free cash flow under the modern theory of asset value, but in the market for corporate control by acquirers of whole corporate assets who must give value to entityness because the market does not permit acquisition arbitrage. The theory of entityness has important implications for merger law.
Does Congress have authority to pass legislation regulating the counting of electoral votes? This is a consequential question for the legal framework governing presidential elections. In 2022, Congress passed the Electoral Count Reform Act ("ECRA"), which overhauled the statutory regime governing the counting of electoral votes. The ECRA's predecessor statute, which had been in place since 1887, had long been criticized as ambiguous and unnecessarily convoluted. Those deficiencies were widely seen as a contributing cause of the January 6, 2021, attacks on the Capitol, and a rare bipartisan majority in Congress passed the ECRA to address the earlier statute's shortcomings. Yet it did so against a backdrop of criticism from some scholars questioning Congress's authority to legislate in this area. The scholarly literature, however, lacks a sustained defense of Congress's power to regulate the counting of electoral votes. This Article aims to fill that gap. It does so in two ways. First, it engages with the skeptics of Congress's authority on their traditional terrain, locating ample congressional authority grounded in the text, structure, and history of Article II, the Necessary and Proper Clause, and the Twelfth Amendment. The Article then seeks to expand the analytic framework by focusing on a constitutional provision that tends to stay out of the limelight: the Twentieth Amendment, which reconfigures the period between Election Day and Inauguration Day. In defending Congress's authority to pass laws regulating the counting of electoral votes, this Article provides the first scholarly treatment of the Twentieth Amendment's significance in this area.
In Employment Division v. Smith, the U.S. Supreme Court denied heightened constitutional protection to religiously motivated exercise burdened by neutral and generally applicable laws. The history presented in this Article suggests that the Smith approach conflicts with the original understanding of the Fourteenth Amendment. Out of the crucible of religious abolitionist resistance to the Fugitive Slave Act emerged a substantive theory of constitutional religious freedom: American citizens should have the right to obey the Biblical command to care for the needy and provide the hungry a "crust of bread," even if doing so was contrary to neutral and generally applicable state or federal law. This understanding of religious liberty informed the constitutional ideas of Reconstruction-Era Republicans and, ultimately, the original understanding of the Privileges or Immunities Clause of the Fourteenth Amendment. After canvassing the historical evidence, the Article explores how replacing the Smith test with a strict scrutiny test would better protect post-Fourteenth Amendment free exercise. At the very least, the evidence in this Article also supports a trajectory the Supreme Court has been on in recent cases to narrow the application of Smith by dramatically limiting the types of laws that can qualify as being neutral and generally applicable.
Mass arbitration represents the newest battleground between corporations and consumer and employee advocates over mandatory arbitration and access to justice. Companies thought they had finally won the arbitration wars after the U.S. Supreme Court ruled that they could insert class action bans into their arbitration clauses, bestowing companies with widespread immunity from a large swath of consumer and employee claims. Recently, however, consumer and employee advocates have responded to class action bans by filing thousands of individual arbitration demands, which have exposed companies to millions of dollars in filing fees and resulted in large settlements. This practice has become known as "mass arbitration." Although corporations have cried foul, courts so far have allowed mass arbitrations to occur. No one expects companies to accept this latest development without a fight. Yet scholars have not comprehensively examined how companies have adapted their arbitration provisions to try and squelch mass arbitration. This Article provides an empirical study of the arbitration clauses of 106 large consumer-facing companies. It reveals that most companies now require claimants to exhaust pre-arbitration procedures prior to initiating an arbitration. Many companies also require cases to be arbitrated in sequential batches rather than all at once, allowing companies to spread their fee obligations and liability risks over a longer time horizon. Other companies have chosen arbitration providers who offer lower fees. The study's findings have several important implications. First, companies' new responses to mass arbitration have claim-suppressing effects. Pre-arbitration requirements make it easier for companies to dismiss claims if those requirements are not satisfied. Arbitrating claims in staggered batches delays proceedings, forcing claimants to wait longer to seek relief for their injuries. Second, the corporate response to mass arbitration-adding provisions that inject procedural complexity and aggregate decisionmaking-transforms arbitration to such a degree that it is no longer the type of arbitration covered by the Federal Arbitration Act. Consequently, state governments should have broad license to intervene without being preempted by the Federal Arbitration Act. This Article provides a roadmap for how states can act to rein in companies' most troubling responses to mass arbitration.
The bankruptcy system tries to strike a balance between a fresh economic start through debt forgiveness, or discharge, and the need to repay creditors. When the debt is owed to the government, however, the scale seemingly tips toward repayment because of the government's role in providing essential services to society. But there are certain debts owed to the government that can be forgiven in bankruptcy and some that cannot. The consumer bankruptcy system does not forgive government-owed child support debt, penal debt, and student loan debt, which are disproportionally carried by poor women and racial minorities, but the system does forgive government-owed tax debts and loans. Since one of the primary purposes of the consumer bankruptcy system is debt relief for economically vulnerable individuals, this Article advocates for targeted reforms to the bankruptcy system and discharge guidelines to promote a more generalized standard of discharge for government-owed debt and further advances the debate about whether there should be nondischargeable debt in the consumer bankruptcy system.
