Full Discharge Ahead? An Empirical First Look at the New Student Loan Discharge Process in Bankruptcy

The legal framework for discharging student loan debt held by bankruptcy filers cases changed in November 2022 with the Biden Administration’s Department of Justice issuing its “Guidance for Department Attorneys Regarding Student Loan Bankruptcy Litigation,” fundamentally altering the legal framework for discharging student loan debt in bankruptcy cases. The Guidance aims to enhance consistency and equity by: (1) ensuring transparent and consistent expectations; (2) reducing the burden on debtors; and (3) making it easier for DOJ attorneys to recommend discharging a debtor’s student loans. The DOJ has touted the new Guidance as having “made a real difference in borrowers’ lives,” comprehensive analysis has been lacking. This Article empirically assesses whether the Guidance has achieved its objectives by analyzing student loan litigation in bankruptcy. Our findings reveal that, 23 months after the Guidance was announced, 2,514 new student loan adversary proceedings (“SLAPs”) were filed—a 330% increase compared to a similar period before the Guidance—with a third of these proceedings stemming from prior bankruptcies. Despite this significant increase, we find that this still means that fewer than 1% of bankruptcy filers with student loans seek to discharge them in bankruptcy. Notably, borrowers with smaller student loan debts are more likely to seek relief, indicating the Guidance may have lowered barriers for this group. Additionally, the increase in SLAP filings is regionally concentrated—Minnesota filings increased 30 times pre-Guidance levels, for example—suggesting that certain courts or consumer bankruptcy attorneys are “early adopters” of the new legal regime. Case processing times were initially slower but are returning to historical levels. Our data suggests that while the Guidance has positively impacted the willingness of borrowers to seek the discharge of their student loans once in bankruptcy, overall use of this relief remains negligible relative to the total number of bankruptcy cases, indicating that additional efforts are needed to enhance access and awareness. Until Congress amends the Bankruptcy Code by removing section 523(a)(8), the new Guidance serves as a beacon of hope for struggling borrowers seeking relief through bankruptcy

Farewell, Feres: Does the Camp Lejeune Justice Act Overturn the Feres Doctrine?

In 1950, the Supreme Court held in Feres v. United States that soldiers cannot sue the government for injuries incurred “incident to service.” This holding set a precedent for denying suits by injured soldiers and their families, and the precedent became known as the Feres Doctrine. Over time, the Feres Doctrine has been expanded and abused to universally dismiss lawsuits by soldiers for negligence, medical malpractice, sexual assault, and intentional torts including sexual assault. Because the original decision did not adequately define “incident to service,” the Feres doctrine has been applied differently in different judicial circuits, causing confusion and drawing ire from legislators, judges, and Justices alike. In 2022, the Feres Doctrine was dealt two significant legal blows. First, Congress passed the Camp Lejeune Justice Act (Lejeune Act), allowing soldiers negligently injured by toxic water at Camp Lejeune to sue the government. Second, the Ninth Circuit decided Spletstoser v. Hyten, which both allowed a survivor of military sexual trauma to sue the government and held that sexual assault is not incident to service. This Comment argues that, because soldiers are allowed to sue for negligence under the Lejeune Act and for sexual assault under Spletstoser, neither negligence and subsequent medical problems nor sexual assault are incident to service. Today, the combination of the Lejeune Act and Spletstoser results in a severely curtailed Feres Doctrine. This is because, under both the Lejeune Act and Spletstoser, the only lawsuits still barred by Feres are suits for other intentional torts, which is far narrower than the Doctrine’s original purpose of barring all Federal Tort Claims Act suits by soldiers. Thus, Feres is ripe for reconsideration and abandonment because of the confusion it brings upon courts and because a majority of Feres’s founding legal precedent has been overturned. The combination of the Lejeune Act and Spletstoser provides the ideal opportunity to fully revisit the Feres Doctrine. This reconsideration is necessary to open the courthouse doors to thousands of wrongfully injured and deceased soldiers who have been unjustly silenced and denied their day in court

Josef Bohatec: The First Historian of the Calvinist Reformation of Rights

This Article analyzes the pioneering work of the first great historian of Calvinist rights talk, Josef Bohatec (1876–1954), a Moravian-born and Vienna-based church historian. Bohatec built on the earlier efforts of several German scholars who were excavating pre-Enlightenment sources of human rights going back to antiquity. But Bohatec placed strong new emphasis on the original rights contributions of sixteenth-century Protestant reformer John Calvin (1509-1564) and his followers. Bohatec showed how Calvin’s legal training shaped the many new statutes and rights ordinances that he crafted for Geneva. He also showed how Calvin’s theological training shaped his highly innovative Protestant legal and political theory. On Bohatec’s account, Calvin presented church and state as living bodies that exercised limited and balanced authority in society. Calvin presented natural law and natural rights as ongoing gifts of “divine clemency” to guide human agency, behavior, legislation, and adjudication. And Calvin insisted on “written constitutions” with a clear enumeration of powers and forms of government, and a clear differentiation of fundamental rights of life, property, religion, election, due process, and more. Calvin’s rights ideas not only reformed Genevan law, but also drove the growing movements of rights, resistance, and revolution in France, Netherlands, Scotland, England, and eventually America as Calvinists faced repression, tyranny, and genocide. Particularly this latter theme underscored Bohatec’s use of history as a form of political critique. He lived through much seismic political turmoil in his day: the breakup of his homeland in the Austro-Hungarian Empire; the devastation of World Wars I and II; the rise of National Socialism; and the escalating Cold War between the West and the Soviets. Just as Nazism was on the rise in Europe, Bohatec presented historical Calvinism as a powerful source of resistance against autocracy. Just as fellow Christians were readily acquiescing in Hitler’s and Stalin’s claims to absolute power, Bohatec reminded them of Calvin’s most fundamental political teaching that even God chose to limit his absolute sovereignty and submit himself to the law for the sake of justice, peace, and love

Defying Goldilocks: Why the FLSA Collective Action Notice Standard Set Forth in Lusardi is “Just Right”

Since the 1980s, federal district courts have applied a lenient standard under § 216 of the Fair Labor Standards Act of 1938 (FLSA), allowing plaintiffs to more easily notify “similarly situated” coworkers of an employer’s potential minimum wage and overtime violations. But recent circuit court decisions have contested this lenient standard. And today, three approaches exist for sending notice to “similarly situated” coworkers hoping to form an FLSA collective action: one lenient, one strict, and one attempting to chart a middle ground. Challenges to the lenient standard threaten workers’ abilities to vindicate their rights and uphold their inherit dignity, eroding fairness in the economy. Restoring the proper power relations between an employee and their employer is a critical element in shepherding a robust and equitable twenty-first century economy. The FLSA provides the necessary framework to do so; therefore, the courage marshaled by President Franklin Delano Roosevelt and the progressive movement of the New Deal era must be revived to counter the challenges of a “Second Gilded Age” and safeguard our democracy. This Comment argues that the Supreme Court can best protect workers most vulnerable to unjust pay by adopting the lenient notice standard set forth in Lusardi v. Xerox Corp. for FLSA collective action cases, a standard used by district courts nationwide for nearly four decades. In the context of workers’ rights, then, Goldilocks was wrong: A lenient standard is, in fact, “just right.

The Globalization of Copyright Exceptions for AI Training

Generative AI, machine learning, and other computational uses of copyrighted works pose profound conceptual questions for copyright law. This Article surveys multiple countries with different legal traditions and local conditions to explore how they have responded to these questions in relation to the use of copyrighted works for AI training without express permission from the relevant rightsholders. Our survey suggests an emerging international equilibrium in which jurisdictions from around the world have found ways to reconcile copyright law and AI training. In this equilibrium, countries recognize that text and data mining, computational data analysis, and AI training can be socially valuable and may not inherently prejudice the copyright holders’ legitimate interests. Such uses should therefore be allowed without express authorization in some, but not all, circumstances. We identify three forces driving toward this equilibrium: (1) the centrality of the idea-expression distinction in copyright law; (2) global competition in AI; and (3) the race to the middle among countries undertaking copyright law reforms. However, we also address factors that may upset this emerging equilibrium, including ongoing copyright litigation, partnerships, and licensing deals in the United States, as well as legislative and regulatory efforts in both the United States and the European Union, most notably the adoption of the EU Artificial Intelligence Act. A key lesson of our multi-country survey is that, globally, the binary policy debate that assumes that text and data mining and AI training must be categorically condemned or applauded has been eclipsed by a more granular debate about the specific circumstances in which the unlicensed use of copyrighted works for AI training should be allowed or prohibited. Countries that have hesitated until now to modernize their copyright laws in the area of AI training have several templates open to them and little reason for hesitation