Volume 70, Number 3 – December 2020

Articles

The Student Loan Bankruptcy Gap
Jason Iuliano
PDF

Each year, a quarter of a million student loan debtors file for bankruptcy. Of those, fewer than three hundred discharge their educational debt. That is a success rate of just 0.1 percent. This chasm between success and failure is the titular “Student Loan Bankruptcy Gap,” and it is a phenomenon that is unprecedented in the law.

Drawing upon an original dataset of nearly five hundred adversary proceedings, this Article examines three key facets of the Student Loan Bankruptcy Gap. First, it establishes the true breadth of the gap. Second, it explores why the gap has persisted for more than two decades and, in doing so, uncovers a creditor case-selection strategy designed to deter debtors from bringing legitimate claims. And third, it identifies solutions that have the potential to close the Student Loan Bankruptcy Gap and bring debt relief to millions of individuals.

Regulating Derivatives: A Fundamental Rethinking
Steven L. Schwarcz
PDF

The conventional wisdom is that derivatives are exotic and uniquely risky, although innovative, financial instruments. That perception has given rise to a regulatory patchwork described as “confusing, incomplete, [and] contradictory.”1 This Article rethinks how derivatives should be regulated. It begins by demystifying derivatives. In contrast to the arcane industry-derived categories, the Article deconstructs derivatives more intuitively, by their economic functions, into two categories of traditional legal instruments—option contracts and guarantees. Being neither exotic nor uniquely risky, most derivatives should be regulated like those traditional instruments. The Article then explains why at least one subset of guarantees—financial guarantees with systemically important counterparties, which are epitomized by credit-default swap derivatives—can seriously threaten economic stability and why the absence of an insurable-interest requirement can further magnify that threat. Finally, the Article examines how to design regulation that efficiently targets that threat.

Notes

Checking the Purse: The President’s Limited Impoundment Power
Christian I. Bale
PDF

The United States spends well over $700 billion annually on defense, more than the next ten countries combined and roughly half of the discretionary budget. The Department of Defense budget supports critical national security objectives, but even defense stalwarts acknowledge excessive spending, including unneeded military facilities, exponential cost overruns, outmoded weapons systems, and duplicative investments across the military services.

In the face of a congressional budget process distorted by special interest groups, this Note argues that the president possesses the constitutional authority to unilaterally curb some defense spending. In particular, the president may impound—refuse to spend money appropriated by Congress for government programs—in discrete areas of exclusive presidential authority and in three areas of shared responsibility with Congress: appropriations for weapons systems, military personnel, and military construction. To reach this conclusion, this Note analyzes historical practice dating back to President Thomas Jefferson to gloss the meaning of the Appropriations and Commander-in-Chief Clauses as well as a recent Supreme Court decision that implicitly recognizes this constitutional authority.

Unlike prior impoundment scholarship, this Note does not argue for an unlimited national security impoundment power. In the past, government lawyers and scholars have invoked the Jefferson example to support a broad claim to constitutional impoundment. Departing from that claim, this Note uncovers a historical account involving President James Madison previously not considered in impoundment scholarship. In short, Madison, an architect of the Constitution, afforded deference to Congress by carrying out a wasteful national security appropriation.

Impoundment may be a powerful tool for monitoring and cutting unnecessary defense spending, but the president’s constitutional authority to use it is not unrestricted. This Note develops a framework for a legitimate but limited presidential impoundment by accounting for Madisonian deference and by employing modern gloss analysis to discern impoundment’s boundaries. The Note concludes by applying this framework to unilateral actions taken by recent administrations and by assessing their constitutionality.

From Overdose to Crime Scene: The Incompatibility of Drug-Induced Homicide Statutes with Due Process
Kaitlin S. Phillips
PDF

As the opioid epidemic ravages the United States, federal and state legislators continue to seek various ways to mitigate the crisis. Though public health advocates have successfully pushed for harm-reduction initiatives, a contrasting punitive response has emerged. Across the country, prosecutors and legislators are turning to drug-induced homicide (“DIH”) statutes as a law-and-order response to the crisis. DIH statutes, which can carry sentences as severe as life in prison, impose criminal liability on anyone who provided drugs that led to a fatal overdose. Though DIH laws are often justified as tools to target large-scale drug distributors, in reality, they more often target friends or family of the deceased. Troublingly, despite the foundational criminal law principle that intent is required to impose culpability, DIH laws are strict liability offenses, requiring no intent toward the resulting death.

Examining the development of strict liability offenses in the American legal system, this Note asserts that criminal intent—mens rea—is an indispensable due process protection in homicide law. It argues that DIH laws, though not facially unconstitutional, are functionally anti-constitutional—inconsistent with the spirit, if not the letter, of due process. This Note is the first to reconcile DIH statutes with the broader context of strict liability criminal jurisprudence, contending that these laws impose punishment far in excess of the culpability they require. Accordingly, it calls upon state legislatures to repeal or amend these laws, offering various frameworks to better align DIH statutes with the protections required for criminal defendants.

Volume 70, Number 3 – December 2020

Articles

The Student Loan Bankruptcy Gap
Jason Iuliano
PDF

Each year, a quarter of a million student loan debtors file for bankruptcy. Of those, fewer than three hundred discharge their educational debt. That is a success rate of just 0.1 percent. This chasm between success and failure is the titular “Student Loan Bankruptcy Gap,” and it is a phenomenon that is unprecedented in the law.

Drawing upon an original dataset of nearly five hundred adversary proceedings, this Article examines three key facets of the Student Loan Bankruptcy Gap. First, it establishes the true breadth of the gap. Second, it explores why the gap has persisted for more than two decades and, in doing so, uncovers a creditor case-selection strategy designed to deter debtors from bringing legitimate claims. And third, it identifies solutions that have the potential to close the Student Loan Bankruptcy Gap and bring debt relief to millions of individuals.

Regulating Derivatives: A Fundamental Rethinking
Steven L. Schwarcz
PDF

The conventional wisdom is that derivatives are exotic and uniquely risky, although innovative, financial instruments. That perception has given rise to a regulatory patchwork described as “confusing, incomplete, [and] contradictory.”1 This Article rethinks how derivatives should be regulated. It begins by demystifying derivatives. In contrast to the arcane industry-derived categories, the Article deconstructs derivatives more intuitively, by their economic functions, into two categories of traditional legal instruments—option contracts and guarantees. Being neither exotic nor uniquely risky, most derivatives should be regulated like those traditional instruments. The Article then explains why at least one subset of guarantees—financial guarantees with systemically important counterparties, which are epitomized by credit-default swap derivatives—can seriously threaten economic stability and why the absence of an insurable-interest requirement can further magnify that threat. Finally, the Article examines how to design regulation that efficiently targets that threat.

Notes

Checking the Purse: The President’s Limited Impoundment Power
Christian I. Bale
PDF

The United States spends well over $700 billion annually on defense, more than the next ten countries combined and roughly half of the discretionary budget. The Department of Defense budget supports critical national security objectives, but even defense stalwarts acknowledge excessive spending, including unneeded military facilities, exponential cost overruns, outmoded weapons systems, and duplicative investments across the military services.

In the face of a congressional budget process distorted by special interest groups, this Note argues that the president possesses the constitutional authority to unilaterally curb some defense spending. In particular, the president may impound—refuse to spend money appropriated by Congress for government programs—in discrete areas of exclusive presidential authority and in three areas of shared responsibility with Congress: appropriations for weapons systems, military personnel, and military construction. To reach this conclusion, this Note analyzes historical practice dating back to President Thomas Jefferson to gloss the meaning of the Appropriations and Commander-in-Chief Clauses as well as a recent Supreme Court decision that implicitly recognizes this constitutional authority.

Unlike prior impoundment scholarship, this Note does not argue for an unlimited national security impoundment power. In the past, government lawyers and scholars have invoked the Jefferson example to support a broad claim to constitutional impoundment. Departing from that claim, this Note uncovers a historical account involving President James Madison previously not considered in impoundment scholarship. In short, Madison, an architect of the Constitution, afforded deference to Congress by carrying out a wasteful national security appropriation.

Impoundment may be a powerful tool for monitoring and cutting unnecessary defense spending, but the president’s constitutional authority to use it is not unrestricted. This Note develops a framework for a legitimate but limited presidential impoundment by accounting for Madisonian deference and by employing modern gloss analysis to discern impoundment’s boundaries. The Note concludes by applying this framework to unilateral actions taken by recent administrations and by assessing their constitutionality.

From Overdose to Crime Scene: The Incompatibility of Drug-Induced Homicide Statutes with Due Process
Kaitlin S. Phillips
PDF

As the opioid epidemic ravages the United States, federal and state legislators continue to seek various ways to mitigate the crisis. Though public health advocates have successfully pushed for harm-reduction initiatives, a contrasting punitive response has emerged. Across the country, prosecutors and legislators are turning to drug-induced homicide (“DIH”) statutes as a law-and-order response to the crisis. DIH statutes, which can carry sentences as severe as life in prison, impose criminal liability on anyone who provided drugs that led to a fatal overdose. Though DIH laws are often justified as tools to target large-scale drug distributors, in reality, they more often target friends or family of the deceased. Troublingly, despite the foundational criminal law principle that intent is required to impose culpability, DIH laws are strict liability offenses, requiring no intent toward the resulting death.

Examining the development of strict liability offenses in the American legal system, this Note asserts that criminal intent—mens rea—is an indispensable due process protection in homicide law. It argues that DIH laws, though not facially unconstitutional, are functionally anti-constitutional—inconsistent with the spirit, if not the letter, of due process. This Note is the first to reconcile DIH statutes with the broader context of strict liability criminal jurisprudence, contending that these laws impose punishment far in excess of the culpability they require. Accordingly, it calls upon state legislatures to repeal or amend these laws, offering various frameworks to better align DIH statutes with the protections required for criminal defendants.