Vol. 106 Issue 5

Roughly $152 billion of student loans are ninety or more days delinquent. Bankruptcy would seem to be an appropriate way to address this problem, but student-loan debtors labor under a unique disadvantage. Such debtors must show “undue hardship” to get a bankruptcy discharge of their student loans. Because the bankruptcy system provides permanent debt relief through granting a discharge, this “undue hardship” requirement is an ob-stacle for student-loan debtors. At the same time, the federal government offers an option for most student loans that may make repayment easier: income-driven repayment (“IDR”) plans, under which the debtor makes payments of ten to twenty percent of discretionary income for twenty to twenty-five years, after which any outstanding balance is cancelled.

This Article addresses how the availability of IDR should affect the analysis of undue hardship in student-loan bankruptcy. It reviews legislative history and Supreme Court precedent pertinent to bankruptcy’s fresh-start policy, the student-loan exception to dischargeability, and the IDR programs, and draws three principal conclusions. First, the policies supporting a fresh start in bankruptcy apply to student loans, even if participating in IDR would result in an affordable payment. Second, when student loans have been in repayment for more than five years, the only policy supporting nondischargeability is that of creditor recovery. Third, IDR is intended to make life easier for student-loan debtors, not to increase their exposure to hardship through denial of discharge.

This Article applies these findings to several factual situations common in student-loan bankruptcy. It argues that IDR’s availability should not count against discharge if the debtor could not maintain a minimal standard of living while making IDR payments, or if IDR would extend the repayment period and the debtor could not maintain an above-minimal standard of living during the repayment period. In bankruptcies commenced after five years of repayment, the student-loan debtor generally should receive discharge if the creditor cannot show a substantial likelihood of significant repayment, so the availability of a zero-payment IDR plan should not weigh against discharge. Other possible consequences of IDR include negative amortization—loan balances that increase because payments are not enough to cover accumulating interest on the debt— and tax liability upon discharge because the forgiven debt is treated as income. These consequences should weigh in favor of discharge, potentially by increasing the level of expected repayment the creditor must demonstrate. The debtor’s failure to learn about IDR usually should not count against the debtor, unless IDR actually would provide a viable alternative to discharge.

The Supreme Court held in 2017 that “the vast democratic forums of the Internet in general, and social media in particular,” are “the most important places ...for the exchange of views.” Yet within these forums, speakers are subject to the closest and swiftest regime of censorship the world has ever known. This censorship comes not from the government, but from a small number of private corporations—Facebook, Twitter, Google—and a vast corps of human and algorithmic content modera-tors. The content moderators’ work is indispensable; without it, social media users would drown in spam and disturbing imagery. At the same time, content moderation practices correspond only loosely to First Amendment values. Leaked internal training manuals from Facebook reveal content moderation practices that are rushed, ad hoc, and at times incoherent.

The time has come to consider legislation that would guarantee meaningful speech rights in online spaces. This Article evaluates a range of possible approaches to the problem. These include (1) an administra-tive monitoring-and-compliance regime to ensure that content modera-tion policies hew closely to First Amendment principles; (2) a “personal accountability” regime handing control of content moderation over to users; and (3) a relatively simple requirement that companies disclose their moderation policies. Each carries serious pitfalls, but none is as dangerous as option (4): continuing to entrust online speech rights to the private sector.

For more than a century, legal scholars have looked to the 1866 Civil Rights Act for clues regarding the original meaning of the Fourteenth Amendment. Because the 1866 version of the Act protected only citizens of the United States, most scholars believe that the Act should be used as a guide to understanding the Fourteenth Amendment’s citizenship-based Privileges or Immunities Clause. A closer look at the original sources, however, reveals that the 1866 Civil Rights Act protected rights then associated with the requirements of due process. John Bingham, the man who drafted Section One of the Fourteenth Amendment, expressly described the 1866 Civil Rights Act as protecting the natural and equal right to due process in matters relating to life, liberty, and property. Believing that Congress at that time lacked the constitutional power to enforce the Due Process Clause of the Fifth Amendment, Bingham proposed a Fourteenth Amendment that expressly protected every per-son’s right to due process and granted Congress the power to enforce the same. Following the ratification of the Fourteenth Amendment, Congress repassed the Civil Rights Act and extended the majority of its protections to “all persons.” This final version of the Civil Rights Act cannot be viewed as an enforcement of the rights of citizenship. Instead, it links the Civil Rights Act to the Due Process Clause and to the rights of all persons.

Understanding the link between the 1866 Civil Rights Act and the 1868 Due Process Clause sheds important light on the original mean-ing of Section One of the Fourteenth Amendment. First, it suggests that scholars have erred in trying to use the Civil Rights Act as a guide for understanding the original meaning of the Privileges or Immunities Clause. Although citizens enjoyed the equal rights of person and property protected by the Act, such enjoyment was only because all persons held such due process-related rights. The particular Privileges or Immunities of Citizens of the United States involved a different cate-gory of rights—rights that men like John Bingham and Jacob Howard identified as those actually enumerated in the Constitution. Second, understanding the link between the Civil Rights Act and the 1868 Due Process Clause reveals an underappreciated equal rights principle within both the federal Due Process Clause and the Fourteenth Amendment’s Due Process Clause. This principle not only appropriately informs due process constraints on federal activity in places like the District of Columbia, but it also implicates broad congressional power to enforce the equal due process rights of all persons in the states regardless of citizenship.

“I am originally from Mexico but have lived in Washington State since I was [nine] months old . . . . In 2006, as a high school sophomore, I dis-covered my true immigration status in the United States. I was an undocumented Mexican-American and all of my hopes and dreams seemed to shatter at that point . . . . My parents came to the United States to give their children a better life, and that included an education . . . . When immigration reform does happen, I will then have an opportunity to apply my skills in the workforce without having to work in the shadows . . . . I am a first-generation Latina student and have made it my responsibility to represent my community with pride and progress though all odds are set against me.”

Governments can use regulation to pay for public goods out of the pockets of consumers rather than taxpayers. For example, the Affordable Care Act (ACA) underwrites care for women and the infirm through higher insurance premium payments by healthy men. Building on a classic article from Richard Posner, we show that these “cross- subsidies” between consumers are a common feature of modern law, ranging from telecommunications to intellectual property to employee benefits.

Critics of the ACA, and even some of its supporters, argue that taxes would be a better choice. Taxes are said to be more transparent and to fit better with the recommendations of public finance economics. We show how these same arguments can be extended to many other contemporary cross-subsidies.

We also argue, however, that the critics may well be wrong. Drawing on recent theoretical and empirical advances, we show that cross-subsidies can be more efficient than taxes, especially when they are used to redistribute wealth on grounds other than income, such as the ACA’s transfer from men to women. We then apply our analysis to several key contemporary cross-subsidies, including personal injury law, patents, class action lawsuits, paid family leave, and, of course, the ACA.

The role of cities in our federalist system is once again in the news. President Donald Trump’s executive order purporting to cut federal funding for “sanctuary cities” made headlines across the country. However, this federal–municipal showdown is part of a much larger story about the changing regulatory role of cities. Even as cities cast themselves as defiant against conservative federal policies, many are finding themselves in a much weaker position with respect to state policymaking.

Already, state legislators across the country are introducing bills that would cut state funding to local governments implementing “sanctuary city” policies. Such efforts are among the many preemption bills pending in statehouses across the country. Local governments, as creatures of state law, are required to conform to state law, and legislatures have used this power to block municipal regulatory policies.

Scholars have noted this uptick in preemption efforts and discussed the effect of particular preemption policies. This Article addresses an important and emerging trend in intrastate preemption. This new brand of preemption statutes seeks not just to curtail specific local policies but, rather, to chill local policymaking. These punitive statutes punish local governments or their pub-lic officials for taking policy positions and deny them access to the typical legal processes for determining the legality of local ordinances.

In this Article, I identify this phenomenon as “hyper preemption” and describe its various incarnations. I argue that these hyper preemption statutes are different than traditional preemption statutes, which focus on asserting state control over specific policy areas and often involve specifically local regulatory efforts. I then discuss legal and institutional limits on this hyper preemption model.