2017 WRITING COMPONENT PACKET

Including the Columbia Law Review Application

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 TABLE OF CONTENTS
Introduction ......................................................................................................................................... 3
I. Writing Component Rules and Policies ........................................................................... 4
Submission Instructions ......................................................................................................................... 4
II. Columbia Law Review Application .................................................................................. 5
Introduction to the Columbia Law Review................................................................................... 5
Admissions & Membership Selection Policies ........................................................................... 6
Application Instructions .........................................................................................................................8
III. Columbia Law Review Personal Statement .............................................................. 9
IV. Formatting Instructions for Writing and Citation Exercises ........................ 10
General Formatting Instructions .............................................................................. 10
V. Writing Exercise ..........................................................................................................................11
General Guidelines .....................................................................................................11
Writing Evaluation Guidelines...................................................................................11
Writing Exercise Prompt and Sources ........................................................................................... 13
VI. Citation Exercise ...................................................................................................................... 72
Citation Exercise Instructions................................................................................... 72
Citation Exercise Questions and Sources..................................................................................... 73

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INTRODUCTION
Congratulations on completing your 1L year! We are very glad that you have
downloaded the Writing Component and are looking forward to your submission.

This packet proceeds in six parts. Part I details the general rules and policies governing
the Writing Component, which may be submitted to multiple journals. Part II provides
application information for the Columbia Law Review. Part III contains the
instructions and the prompt for the Columbia Law Review Personal Statement. Part
IV provides general formatting instructions for the entire Writing Component. Part V
contains the materials for the Writing Exercise. Part VI contains the materials for the
Citation Exercise. If you intend to apply to the Columbia Law Review, please read and
complete each Part.

Additionally, if you are applying to the Columbia Law Review, please make sure to fill
out and submit the Additional Information Form along with your Writing Component.
The Form is available on LawNet but is not included in this packet. Good luck!

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I. WRITING COMPONENT RULES AND POLICIES
Participation in the Writing Component (Component) involves completion of a
Writing Exercise and a separate Citation Exercisein Parts V and VI, respectively
and requires compliance with the following rules:

1. Participants may not discuss the Component, the materials, or their responses
with anyone else.

2. Submissions must be the product of each participants own original and

independent work. Participants may not use an editing service. Participants may
use a typing service to submit a typed paper; however, typists are not permitted
to make any changes, including grammatical, spelling, and substantive changes.

3. The Component is a closed universe problem. You may not reference any law or
facts not included in the enclosed materials. The only outside sources that
participants may consult are:
a. a dictionary of the English language,
b. a thesaurus of the English language, and
c. Blacks Law Dictionary.

4. Please note that the Component materials may deviate from actual fact and law.

5. Responses to the Component must comply with the instructions set forth on
pages 1012, 72.

6. Participants in the Component may not contribute to another law students

violation of these rules.

Any violation of these rules or other misconduct will result in disqualification from
consideration for any journal and referral to the Dean of Students for further
disciplinary action.

Submission Instructions
All application submissions are due by May 23 at 12:00 PM (Eastern Time).
Submissions must be directly uploaded to LawNet. Technical questions during and
following the submissions period should be emailed to Information Technology
(helpdesk@law.columbia.edu).

The Columbia Law Review does not accept late submissions. Extensions to the
application deadline will not be granted, except under truly extraordinary
circumstances. Such circumstances do not include travel, computer or internet failure,
or most physical illnesses. Requests for extensions must be made directly, and as early
as possible, to Kelsey Ruescher, Editor-in-Chief (eic@columbialawreview.org).

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II. COLUMBIA LAW REVIEW APPLICATION

Introduction to the Columbia Law Review

Members of the Review select pieces for publication, engage authors in a thorough and
substantive editorial process, and manage production. In the process, members are
exposed to a breadth of cutting-edge legal scholarship and are provided an opportunity
to sharpen research, writing, and analytical skills. Most of all, the Review is a close-knit
and diverse community. Members support and encourage each others professional
aspirations in law as well as other aspects of work and life at the law school, including
class preparation, job interviews, and clerkship applications.

The Commitment

The Columbia Law Review is a two-year commitment. During the first year, members
compose an original piece of scholarship (a Note) and participate in the editorial
process by providing feedback for authors. Members typically will spend between 20 to
25 hours per week on editorial duties and additional time on Note preparation. Both
commitments to the Review end in mid-November and resume after finals. During the
second semester of 2L, students have the opportunity to become a member of the
Administrative Board or continue their work as a Senior Editor with a reduced editorial
workload. Although the time commitment is significant, the Review respects other
aspects of members lives. Members regularly participate in other activities, including
clinics and externships, and serve as student organization leaders, first-year moot court
editors, and teaching or research assistants.

All new members must return on July 24 for Orientation to begin editorial duties. In
the past, summer employers, including firms, fellowships, and public interest
organizations, have readily released members from work obligations to attend
Orientation; GSF and HRIP permit students to receive their full stipend. Furthermore,
Orientation will not interfere with EIP. If Orientation requires arduous travel or work
modifications do not worrywe will help you make arrangements.

The Note Requirement

2L members are required to author a student Note for possible publication in the
Columbia Law Review. Authoring a Note provides Review members with a unique
opportunity to create a substantive piece of academic scholarship in any area of
academic interest under the guidance of a 3L Note Editor and a faculty advisor. Many
members have remarked that writing a Note was one of the most intellectually
rewarding experiences of their time at Columbia Law School.

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Admissions & Membership Selection Policies
Admissions Criteria

The Review selects 45 members from the rising Law School 2L class. 15 members are
selected solely on the basis of their written materials, including the Writing Component
and Personal Statement. Remaining members are selected after careful consideration of
their Writing Component, Personal Statement, and grades. All applications are reviewed
completely anonymously. For specific questions regarding these policies, please contact
Kelsey Ruescher, Editor-in-Chief (eic@columbialawreview.org).

Offer and Acceptance Procedure

All offers will be made to applicants during the week of June 26 (contingent on
professors timely submission of grades). Offers will be made by phone or, if the
applicant cannot be reached by phone, by email.

Admitted applicants must accept their offers by 11:59 PM (Eastern Time) of the day on
which they are notified. Admission to the Review may not be deferred or conditionally
accepted.

Please do not call journal or administrative offices for the results of the selection
process.

Membership Policies

First-year members must be physically present in New York City during their entire first
year and are subject to the general policies below. Second-year members need not be in
New York City pursuant to the exceptions below for special academic programs. For
specific questions regarding these policies, please contact Kelsey Ruescher, Editor-in-
Chief (eic@columbialawreview.org).

General Policies

1. Students may not participate in the Writing Component more than once during
their tenure at Columbia Law School.

2. First-year members must return to campus on July 24 to begin their editorial

responsibilities.

3. First-year members agree to complete a student Note for potential publication in

the Review.

4. First-year members agree to complete all of their required editorial

responsibilities over the course of the academic year.

5. Members agree to complete a full two-year, exclusive commitment to the Review.

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Special Academic Programs

1. Joint Degree Programs: Applicants enrolled in a joint degree program may apply
for the Review only if the applicant: (1) can fulfill a two-year commitment to the
Review; and (2) will be physically present in New York City during his or her first
year on the Review.

2. Semester-Abroad Programs: The Review permits its members to spend one

semester during the second year of their two-year commitment outside of New
York City. Interest in these programs does not affect ones application. Members
must nonetheless fulfill the complete editorial obligations of their second-year
commitment.

3. Foreign Double-Degree Programs: Foreign double-degree candidates may apply

for the Review only if the applicant can fulfill a two-year commitment to the
Review. The Review accepts a maximum of two foreign double-degree
candidates, and those members will not be eligible for a position on the
Administrative Board.

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Application Instructions

Applicants to the Columbia Law Review must complete the steps below:

1. Complete a Personal Statement, as detailed in Part III of this packet, and upload
it to LawNet. The file should be a Microsoft Word document named with your
registration number alone and the letters PS immediately following ite.g.,
141PS.doc.

2. Complete the Writing Exercise, as detailed in Part V of this packet, and upload it
to LawNet. The file containing the Writing Exercise should be a Microsoft Word
document named with your registration number alone and the letters WE
immediately followinge.g., 141WE.doc.

3. Complete the Citation Exercise, as detailed in Part VI of this packet, and upload
it to LawNet. The file containing the Citation Exercise should be a Microsoft
Word document named with your registration number alone and the letters CE
immediately followinge.g., 141CE.doc.

4. Download and complete the Additional Information Form on LawNet and

upload it to LawNet. Responses may be typed directly onto the Form, and the file
should be a Microsoft Word document named with your registration number
alone and the letters AI immediately following ite.g., 141AI.doc.

5. Complete the remainder of LawNet submissions instructions, including ranking

the Columbia Law Review as your first choice journal. Doing so will not affect
your application with other journals.

Please be certain to upload the Writing Exercise and Citation Exercise as two separate
documents. If you are applying to additional journals, they may require submission of
one or both parts of the Writing Component.

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III. COLUMBIA LAW REVIEW PERSONAL STATEMENT
The Columbia Law Review requires applicants to complete a Personal Statement in
accordance with the prompt and instructions below.

The Personal Statement is designed to evaluate the unique contribution you would make
as a member of the Review community. The subject matter of the Personal Statement is
up to you, but keep in mind that the reader will be seeking a sense of you as a person
and as a potential member of the Review. The Review seeks a membership with varied
backgrounds and interests. To this end, you may consider discussing how aspects of
your background or identity, your life and work experiences, your leadership and
teamwork skills, your career aspirations, your culture, or your interest in legal
scholarship shape your unique perspective.

Instructions:

1. Include your registration number in the header of each page of your Personal
Statement. Do not include personally identifiable information like your name.

2. In up to 500 words, please tell us a story from your life, describing an experience
that demonstrates or helped to shape your character.

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IV. FORMATTING INSTRUCTIONS FOR WRITING AND CITATION
EXERCISES
The Writing Component requires applicants to complete responses to two exercises: (1)
the Writing Exercise and (2) the Citation Exercise. Each individual exercise should
be completed and submitted as a separate document in compliance with
these formatting instructions. Even if you are completing only one of the
exercises for a journal other than the Columbia Law Review, you must
follow these formatting instructions.1 Below are general formatting instructions,
followed by the materials for the two separate exercises.

General Formatting Instructions

Completing the Writing and Citation Exercises in accordance with the instructions
below is required for application to the Columbia Law Review.

The Writing Exercise and Citation Exercise should be completed as two separate
documents; the below formatting instructions apply to both exercises.
Body text must be 12-point Times New Roman, double-spaced.
All margins (top, bottom, left, and right) must be one inch.
Include your registration number in the right-hand header of each page of your
Writing Exercise and Citation Exercise. Do not include your name or other
personally identifiable information.
Include a page number in the right-hand footer.
Do not include any footnotes.

1 If you are using the Writing Exercise and/or Citation Exercise for a journal other than
the Columbia Law Review, please be sure to consult that journals requirements for which materials you
must submit to apply; other journals may require a different combination of materials to form a complete
application.

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V. WRITING EXERCISE

General Guidelines
Materials

To answer the Writing Exercise, you must rely on the law and facts as presented
to you in the materials that follow. Those materials may differ from actual law
and fact. You should draw heavily on the materials to develop your answer, but
you need not use every source included in this packet.

Citations in the Writing Exercise

Place citations immediately after the sentence or clause that quotes or that is
supported by the source being cited.
When citing multiple sources in one citation sentence, separate sources with a
semicolone.g., Arm v. Hammer; Us v. Themin order of most to least relevant
to the legal proposition being supported.
Do not provide citations for factual claims you make based on the factual record.
Each source must be cited exactly as instructed on the sources first page in the
cite as parenthetical.
Do not use short citation formats other than Id. You may use Id. only to refer
to the source immediately prior if that source is the sole source in the citation.
Do not include pin citations (e.g., at 5) or explanatory parentheticals.
Do not use introductory signals, such as see, cf., etc.
All citations must contain only information derived from this packet. Again, you
are not permitted to conduct outside research.

Word Count

The Writing Exercise is limited to 3,000 words, as determined by Microsoft

Words word count function. Include a word count at the end of your response.
Do not count material in the header and footer (i.e., your registration number
and page numbers) in the word count for the Writing Exercise.

Writing Evaluation Guidelines

Columbia Law Review members will evaluate your writing based on the criteria below:

Legal Analysis

A strong response will apply relevant law to relevant facts. There are six major
components to a responses legal analysis:

identification of the major issues

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 identification of the applicable rules
application of those rules to the facts of the problem
clarity and quality of argumentation
formation of, and response to, counterarguments
use of citations to improve the clarity of and provide substantiation for analysis

Organization

A strong response will be logically organized. Graders will assess whether the author has
allocated more space to important arguments or dwelled needlessly on minor points.
Major components of strong organization also include:

effective statements of the issues and conclusions

clear paragraph structure, including use of topic sentences
logical order of arguments presented
appropriate use of space
use of transitions, headings, subheadings, etc.

Writing Style

Graders will also assess the strength of your writing, detached from the legal arguments.
Specifically, we will look for:

clear and concise sentence structure

minimal use of passive voice
precise, efficient vocabulary
engaging but appropriate tone
grammar and spelling

Additionally, please note that we will evaluate your ability to follow the directions in this
packet.

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Writing Exercise Prompt and Sources
By 2017, the Lannisters were poised to become an American political dynasty. Tywin,
the Lannister patriarch, became a household name in the early 1980s as a billionaire
investor and business magnate. His daughter Cersei, once dismissed by the public as the
trophy wife of former Westeros1 governor Robert Baratheon, eventually went on to
serve as Governor of Westeros herself. Her brother Jaime was a decorated officer in the
Marine Corps before winning a U.S. Senate seat. Tyrion, Tywins eldest son, became a
celebrated diplomathe was rumored to be next in line to serve as U.S. Ambassador to
the United Nations.

But every family has a side that nobody talks about.

Doug Lannister didnt know much about his own connection to the Lannister clan. His
grandfather Jerry supposedly had a falling out with Tywin Lannisters father over an
illegal dragon breeding operation. After the family disowned him, Jerry married a
Dothraki horse trainer and moved to Essos.2 Doug spent his childhood working at his
familys horse farm. Training horses was his callinghe loved the process of teaching
horses and riders how to communicate with each other. Times were tough, though. Even
in Essos, where land was cheap and easily available, raising horses was an expensive
business. Fewer and fewer families could afford to buy horses from Dougs family and
take riding lessons at the farm. When Doug was sixteen, his father decided to let go of
his longtime employees and pull Doug out of school to help with the farm. Over the next
eleven years, Doug and his father worked side by side to keep the farm running.

The one thing that Doug did have in common with his distant relatives was the family
motto: A Lannister always pays his debts. Figuring out how to pay those debts proved
difficult. Dougs father died in 2002, leaving twenty-seven-year-old Doug and his new
wife, Marta, to manage the farm by themselves. Dougs father had always handled the
farms financeswhen Doug took over, he discovered that his father had taken out a
second mortgage. Doug and Marta owed the Iron Bank of Braavos about $10,000 a
month, on top of all the payments going to various suppliers. At the same time, the
business barely brought in enough money to cover these expenses.

Doug panicked. Nothing in his life up to this point prepared him to take over a
struggling business. In addition, Marta was three months pregnant, so Doug felt the
added pressure of financially supporting their growing family.

After some soul searching, Doug realized that these challenges actually presented an
opportunity to transform his life for the better. Over the next two years, he devoted
himself to learning how to run the farm efficiently and how to be the best possible
father. His daughter was a joyshe even loved horses already. At the same time, Doug
started to really enjoy his managerial work on the farm. Although the business was still
barely breaking even, he found the details involved in operating a business fascinating.

1 Westeros is a fictional U.S. state located in the 14th Circuit.

2 Essos is a fictional U.S. state and is also located in the 14th Circuit.

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One night, as Doug was watching his favorite television show, Trial By Combat, he saw
an interesting commercial. People just like him, without a high school diploma or a
GED, could get an Associates Degree in Business Operations from a university called
the Wall Institute. Doug did some researchit turned out that there was a Wall Institute
campus nearby that offered night classes. Hed never planned to go back to school, but
the more he thought about it, the more it made sense. This was the extra boost he
needed to realize the farms full potential.

Thats how Doug found himself back in the classroom at twenty-nine. The transition was
tough. Schoolwork had never come easy to him, and his Business Operations courses
were no exception. Still, he knew he had to stick it out, if only because hed made a
massive financial investment in his education. Dougs original plan was to sell a few of
his best horses to pay for his first year of school. The financial aid officer convinced him
that he should hold onto his assetsa better idea, according to the officer, would be to
fund his education primarily through federal loans, with additional private loans to
cover the difference.

In 2008, after four years in the program, Doug found himself in a crisis. Marta told him
out of the blue that she was leaving him for his friend Brian the Goat Cleganeshe
confessed that theyd been having an affair for the past few years. After Marta and his
daughter moved out, Doug was despondent. Not only was his marriage over, he was now
the sole person left to operate the farm. He knew it would be impossible for him to
continue with his degree. By the time Marta filed for divorce that December, Doug had
officially withdrawn from the Wall Institute.

Doug spent the next few years devoting every ounce of his energy to the farm.
Unfortunately, his efforts werent enough to weather the Great Recession. The farm was
hemorrhaging moneynobody in Essos could afford luxuries like riding lessons and
Doug couldnt figure out how else to turn a profit.

All the while, Doug needed to start paying off his student loans. He was happily repaying
his federal loans under an income-based plan, which kept his monthly loan payments
affordable. His private loans, however, were another story. Doug spent a month calling
the agencys general hotline to figure out his options, but he couldnt ever reach anyone.
He tried emailing the Servicing and Collections address listed on the website, but he
never heard back. The website itself was horribly confusingDoug couldnt find any
links to payment plan options. The only thing Doug managed to figure out was that he
didnt qualify for loan deferment since he technically still had a job.

In 2012, Doug gave up. Hed missed so many mortgage payments that the Bank
foreclosed on his farm. To pay off all the money he owed to suppliers, he sold his farm
equipment and the few horses he had left. For the next six months or so, Doug tried to
get a managerial job that would pay him enough to save up for another farmthe kind
of position that the Wall Institute promised he could obtain after graduation. In the
process, he discovered that hiring managers considered the Wall Institute to be a joke.

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Doug couldnt even find a job working with horses. On the bright side, now that he was
unemployed, Doug could finally defer both his federal and private student loans.

After two years of unemployment, Doug finally caught a break. His old friend Jon Snow
inherited an estate in Westeros and offered to let him live in the guest house until he
was back on his feet. Once Doug moved to Westeros, he finally found a full-time job as a
stablehand at the Winterfell Equestrian Center. The work was exhausting and the salary
was low, but at least he was around horses. Now that Doug was employed, however, he
needed to start making payments on his student loans again. Even with a repayment
plan for his federal loans, Doug couldnt figure out how to make ends meet and still have
enough left over to occasionally visit his daughter back in Essos. By 2016, Doug had
missed a total of eight payments on his federal loans and six payments on his private
loans. When his private loan servicer finally contacted him regarding his late payments,
Doug found out that the company didnt offer any kind of an income-based repayment
program.

In 2016, tragedy struck again. A young, skittish horse kicked Doug in the leg, shattering
his kneecap. Although Doug was supposed to take a full eight weeks off work to recover,
he ended up returning two weeks early after the farm threatened to replace him. His
knee didnt bother him much when walking or doing light work, but more intense
physical chores like mucking stalls gave him some pain. Riding horses was completely
out of the question because of the stress it placed on his knees. His doctor told him that
he had a moderate risk of post-traumatic arthritis, particularly if he kept performing
intense physical labor. If arthritis set in, he would be out of a job for certain.

At this point, Doug was 42, with no assets, no degrees, and no idea how to handle his
current situation. Thankfully his friend Jon once again came to the rescue. When Doug
finally confided in him about his debt problems, Jon remembered that his half-sister
Arya, a brilliant lawyer and founding partner at Stark & Stark, was very interested in
taking on pro bono cases that could help address opportunity disparities. Arya agreed
that Doug had a compelling story: unlike his wealthy and successful Lannister cousins,
Doug faced setbacks at every stage of his life that prevented him from achieving his
goals.

Before Dougs initial meeting with Arya, she asked him to prepare an overview of his
finances:

After-Tax Monthly Income:

$1,300 per month salary from his job at Winterfell Equestrian Center
$300 per month total profits from selling his homemade horse treats

Basic Monthly Expenses:

$400 per month to Jon for rent and to help with utilitiesDoug noted that
the average rent for a studio apartment within a convenient distance to his
workplace is $900 per month and the average cost of basic utilities is $80.
$300 per month for groceries
$150 per month for health insurance

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 $100 per month on car insurance
$50 per month on gas
$100 saved per month for emergencies

Other Monthly Expenses:

$100 per month for cigarettes
$300 per month on travel to Essos to see his daughter and gifts for her3
$50 per month on entertainment (e.g., movies, fast food, Netflix membership)

Monthly Student Loan Payments:

$100 per month for federal loans under an income-based repayment plan
$600 per month for private loans
Both his federal and private loans have 15-year terms

Total Monthly Income: $1,600

Total Monthly Expenses (Before Student Loan Payments): $1,550
Total Monthly Expenses (After Student Loan Payments): $2,250

Debt4:
$20,000 in federal student loans
$10,000 in private student loans
$15,000 in credit card debt

Savings:
$750

Total Debt: $45,000

Total Savings: $750

Instructions

You are a first-year associate at Stark & Stark. In advance of her meeting with Doug,
Arya Stark would like you to draft a memo that assesses Dougs likelihood of discharging
his student loan debt successfully and addresses the policy considerations behind the
discharge of student debt. When you met with Arya, she explained that the 14th Circuit
hasnt yet decided which test to use to determine whether a debtors student loans
should be discharged in Chapter 7 bankruptcy. The 9th Circuit, along with many others,
uses the Brunner test. The other option is the totality of the circumstances test, used
primarily by the 8th Circuit.

3 This estimate is an average monthly expense calculated using Dougs total spending over the past few
years. Doug has no other financial responsibility for his daughter (e.g., child support).
4 For the purposes of this assignment, just look at these totalsdo not consider or discuss interest.

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For now, she would like you to address the following questions:

(1) If the 14th Circuit adopts the 9th Circuits formulation of the Brunner test, will a
Westeros bankruptcy court allow Doug to discharge his student debt?
(2) If the 14th Circuit adopts the 8th Circuits totality of the circumstances test, will
a Westeros bankruptcy court allow Doug to discharge his student debt?
(3) Which test should Westeros courts adopt?

Arya would also like your help with an article on student loan debt that shes writing for
the Westeros Bar Associations website. She asked you to address this question in your
memo as well:

(4) Do you agree with Congresss decision to amend 11 U.S.C 523(a)(8) to cover
private educational loans?

She does not want you to relist these questions presented (which she provided you) at
the beginning of your memo, nor does she want an introduction or a statement of facts.
She wants you to start with your discussion of legal issues and provide her with
conclusions. You should allocate space in your memo according to the relevance and the
complexity of the question you are considering.

For Questions 1 and 2, please discuss any additional facts that would be useful to know
in order to determine whether Doug would be able to discharge his student debt. For
Question 3, please provide an analysis of which test best evaluates undue hardship,
rather than focusing on which test is most advantageous for Doug. If you prefer the
Brunner test, you can choose to advocate for an interpretation that differs from the 9th
Circuits formulation. For Question 4, Arya would like you to use the sources she has
given you to provide your own analysis rather than trying to guess how she would
respond to the question. Although she has strong feelings about extending 523(a)(8) to
private loans, shes interested in seeing your skills as an advocate.

The research assistants at Stark & Stark have provided you with a packet of sources that
will help you address these questions. As a reminder, you are not permitted to use
outside sources other than an English language dictionary, an English language
thesaurus, and Blacks Law Dictionary.

Background Information

As mentioned above, Westeros is a fictional U.S. state located within the 14th Circuit.
Bankruptcy cases in Westeros start in bankruptcy court; debtors appeal directly to the
district court.

When addressing Question 1, please assume that 9th Circuit cases are bindingin other
words, the 14th Circuit will adopt that exact approach. Precedent from other
jurisdictions that use the Brunner test will be persuasive. When addressing Question 2,
please assume that 8th Circuit cases are binding. Precedent from other jurisdictions that
use the totality of the circumstances test will be persuasive.

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When reviewing the cases within the source packet, please note that both the 8th and
9th Circuits have established Bankruptcy Appellate Panels (BAPs). BAPs hear the
majority of appeals from bankruptcy court decisions. Decisions from BAPs in both
circuits are appealed directly to the Courts of Appeals. Westeros courts will find both
initial bankruptcy court decisions and BAP decisions persuasive rather than binding.

Along with the cases provided to you, the Stark & Stark research team included some
additional secondary sources and federal materials for you to consult. While Westeros
courts might refer to these types of sources, they are less persuasive than court
decisions. You may cite to any cases mentioned within these sources directly if they are
followed by a recommended citation (i.e., [Cite as: . . . ]). Please analyze these cases
according to the above instructions for cases.

Page 18 of 132
 United States Court of Appeals, Second Circuit

Brunner v. New York State Higher Educ. Services Corp.

[Cite as: Brunner, 2d Cir., 1987]

Marie Brunner, pro se, appeals from a decision of the United States District Court for
the Southern District of New York, Charles S. Haight, Judge, which held that it was error
for the bankruptcy court to discharge her student loans based on undue hardship. We
affirm.

While this court is obliged to accept the bankruptcy courts undisturbed findings of fact
unless they are clearly erroneous, it is not required to accept its conclusions as to the
legal effect of those findings. Whether or not discharging Brunners student loans would
impose on her undue hardship under 11 U.S.C. 523(a)(8)(B) requires a conclusion
regarding the legal effect of the bankruptcy courts findings as to her circumstances.
Therefore, the bankruptcy courts conclusion of undue hardship properly was
reviewed by the district court.

As noted by the district court, there is very little appellate authority on the definition of
undue hardship in the context of 11 U.S.C. 523(a)(8)(B). Based on legislative history
and the decisions of other district and bankruptcy courts, the district court adopted a
standard for undue hardship requiring a three-part showing: (1) that the debtor
cannot maintain, based on current income and expenses, a minimal standard of living
for herself and her dependents if forced to repay the loans; (2) that additional
circumstances exist indicating that this state of affairs is likely to persist for a significant
portion of the repayment period of the student loans; and (3) that the debtor has made
good faith efforts to repay the loans. For the reasons set forth in the district courts
order, we adopt this analysis. The first part of this test has been applied frequently as
the minimum necessary to establish undue hardship. Requiring such a showing
comports with common sense as well.

The further showing required by part two of the test is also reasonable in light of the
clear congressional intent exhibited in section 523(a)(8) to make the discharge of
student loans more difficult than that of other nonexcepted debt. Predicting future
income is, as the district court noted, problematic. Requiring evidence not only of
current inability to pay but also of additional, exceptional circumstances, strongly
suggestive of continuing inability to repay over an extended period of time, more
reliably guarantees that the hardship presented is undue.

Under the test proposed by the district court, Brunner has not established her eligibility
for a discharge of her student loans based on undue hardship. The record
demonstrates no additional circumstances indicating a likelihood that her current
inability to find any work will extend for a significant portion of the loan repayment
period. She is not disabled, nor elderly, and she hasso far as the record disclosesno
dependents. No evidence was presented indicating a total foreclosure of job prospects in
her area of training. In fact, at the time of the hearing, only ten months had elapsed

Page 19 of 132
since Brunners graduation from her Masters program. Finally, as noted by the district
court, Brunner filed for the discharge within a month of the date the first payment of her
loans came due. Moreover, she did so without first requesting a deferment of payment, a
less drastic remedy available to those unable to pay because of prolonged
unemployment. Such conduct does not evidence a good faith attempt to repay her
student loans.

Page 20 of 132
 United States Bankruptcy Appellate Panel, Ninth Circuit

In re Birrane

[Cite as: Birrane, BAP 9th Cir., 2002]

Birrane was 36 years old, single and had no dependents at the time of trial in this
matter. She earned a Bachelor of Arts degree in social work, with a minor in dance, from
Penn State University in 1989. She earned a Master of Fine Arts degree, with an
emphasis on dance choreography and performance, from the University of Arizona in
1995.

Birrane financed her education in the approximate amount of $50,500 by obtaining a

student loan . . . guarantied by Pennsylvania Higher Education Assistance Agency
(PHEAA) . . . . At the time of trial, she owed approximately $57,092.87 in student loan
debt . . . . According to PHEAA, if the loan was deemed nondischargeable, the monthly
payment amount would be approximately $473.00 on a 25year repayment plan.

Prior to and at the time of trial, Birrane was an independent contractor who taught
creative and modern dance to children at various locations in the Seattle area. She
worked for several entities that paid her hourly rates ranging from $30 to $50 per hour.
Her 2001 adjusted gross income was $21,155 for which she worked approximately 721
hours throughout the year. Besides her teaching activities, Birrane donated
approximately 728 hours in 2001 to her dance company.

Birrane filed this adversary on July 25, 2001, seeking an undue hardship discharge of
her student loan obligation under 523(a)(8).

[...]

A. The First Prong of the Brunner Test Requires the Debtor to Prove That She Cannot
Maintain, Based on Current Income and Expenses, a Minimal Standard of Living for
Herself and Her Dependents If Forced to Repay the Loans.

. . . The first prong of the Brunner test requires an examination of Birranes current
income and expenses to see if payment of the loan would cause her standard of living to
fall below that minimally necessary. To meet this requirement, the debtor must
demonstrate more than simply tight finances. In defining undue hardship, courts
require more than temporary financial adversity, but typically stop short of utter
hopelessness. The proper inquiry is whether it would be unconscionable to require the
debtor to take steps to earn more income or reduce her expenses.

[The court first concludes that the bankruptcy court properly estimated Birranes
monthly net income as $1,800 per month. Based on testimony that her expenses were
about the same, the bankruptcy court properly found that her income and expenses
were approximately equal despite monthly fluctuations.]

Page 21 of 132
2. Expenses Beyond Minimal Standard of Living Standard.

PHEAA also contends that the bankruptcy court incorrectly applied the legal standard
under this prong of Brunner because Birrane had failed to minimize her expenses.
PHEAA contends that Birrane had extraneous expenses for the dance company,
charitable contributions to Amnesty International, dining out expenses, and book club
purchases and gifts.

There were no specific findings on the record regarding the disputed expense items
above. However, Birrane presented evidence regarding the amounts of the various
expenditures and was cross-examined by PHEAAs counsel. Presumably the bankruptcy
court heard and considered this evidence when making its finding regarding the first
prong of the Brunner test.

Even so, whether to decline a discharge due to expenses which may be beyond the
minimal standard of living is discretionary with the court. For example, courts may
decline to discharge student loan debt where the debtors budget contains certain items
such as cable television, a new car, and private schooling. In re Rifino, 245 F.3d 1083,
1087 (9th Cir.2001) [Cite as: Rifino, 9th Cir., 2001]. Nonetheless, a bankruptcy courts
refusal to decline a discharge because of these expenses may not be necessarily clearly
erroneous. Id. at 1088 (citing Anderson, 470 U.S. at 574) [Cite as: Anderson, SCOTUS,
1985] (where there are two permissible views of the evidence, the factfinders choice
between them cannot be clearly erroneous). Further, it appears from the evidence
before the bankruptcy court that the amounts involved for at least some of the so-called
extraneous expenses were de minimus. Therefore, the Panel cannot find the bankruptcy
court committed an error of law when applying the first prong of the Brunner test in this
regard.

[...]

B. The Second Prong of the Brunner Test Requires the Debtor to Prove That Additional
Circumstances Exist Indicating That this State of Affairs Is Likely to Persist for a
Significant Portion of the Repayment Period of the Student Loans.

PHEAA argues that the bankruptcy court incorrectly applied the legal standard under
the second Brunner prong when it found Birranes current state of affairs is likely to
persist for a significant portion of the repayment period of her student loans, where a)
she voluntarily devotes approximately 50% of her working hours to managing an
unprofitable dance company which pays her no salary; and b) she has not attempted to
repay her loans using the ICRP.

The additional circumstances prong of the Brunner test is intended to effect the clear
congressional intent exhibited in 523(a)(8) to make the discharge of student loans
more difficult than that of other nonexcepted debt. Rifino, 245 F.3d at 108889 [Cite
as: Rifino, 9th Cir., 2001] (citations omitted). There must be evidence that the debtors
road to recovery is obstructed by the type of barrier that would lead [the court] to

Page 22 of 132
believe he will lack the ability to repay for several years. Examples of such barriers may
include psychiatric problems, lack of usable job skills and severely limited education.

. . . In this case, the bankruptcy court noted that the second prong of the Brunner test is
the critical problem in this case. The bankruptcy court noted:

PHEAA had argued why didnt the debtor get a full time job; or why
doesnt she get part-time work that would enhance her income and enable
her to make some payments on the student loans? Either course would
necessarily require her to give up the dance company which is some
cultural benefit to the community. The debtor is well-educated and
intelligent. However, as I mentioned before, she has no skills outside her
field. If she decides to seek other employment, she would require
additional training which she cannot afford, or she would have to start at
the bottom and acquire skills through on-the-job training. I am convinced
that if the debtor did find a so-called real job, her income would be about
the same as her present earnings and for the foreseeable future she would
be in the same financial condition that she now faces. Of course there is
always the possibility of advancement with higher pay. However, at this
point, I am speculating and I do not want to engage in that sort of
speculation.

1. No Insurmountable Barriers.

There was no evidence on the record that demonstrated Birrane had any mental,
physical, or other problems that were either insurmountable or that impaired her ability
to work. At most, her feet sometimes gave her problems because of her dance activities.
There was also no evidence that Birrane had any extraordinary non-discretionary
expenses such as those related to medical needs. Moreover, the bankruptcy court found
that Birrane is well-educated and intelligent. Therefore, Birrane is not hindered by a
severely limited education.

2. Future Prospects for Employment Are Promising.

The evidence showed that Birrane works approximately 25 hours a week and she
devotes approximately the same amount of time to her non-profit dance company.
Specifically, Birrane testified that in connection with her dance company she rehearses
for eight hours a week, works an additional five hours a week just on choreography,
writes grants (one to ten hours a week), and meets with the board of directors. Birrane
also testified that although the dance company lost money in 2001, she was hopeful that
its income will increase in the future.

There are several implications that can be drawn from Birranes involvement with her
dance company. First, Birrane must be willing and physically able to work hard since
she devotes a significant amount of time to this endeavor. Next, she must possess some
talent for choreography and dance as evidenced by the fact that her dance company has
put on several performances. Birrane must also possess some skills for running a dance

Page 23 of 132
company since it has stayed afloat since 1998 and she was optimistic that its income
would increase in the future. Finally, Birranes dance company activities cannot escape
the notice of the public because the company is giving performances. Given her hard
work, talent, and exposure to the public, it appears that Birranes prospects at future
employment within her chosen field are quite good.

Further, there is nothing in the record that indicates Birrane is unemployable in other
areas. The bankruptcy court conceded as much by noting that Birrane would have to
start at the bottom and acquire on the job training if she worked outside her field. The
implication is that Birrane was employable outside her field, although her hourly pay
may be less than what she is used to.

The bankruptcy court further noted there was always the possibility of advancement
and more pay. Although the bankruptcy court declined to speculate at Birranes future
employment prospects, this prong of the Brunner test necessarily looks to the future and
the court must consider the likelihood that the debtors financial situation will improve
sufficiently to permit her to resume paying her educational loans. As a result, some
speculation is obviously involved. The comments made by the bankruptcy judge
regarding the possibility for advancement and more pay do not seem improbable or far-
fetched given Birranes education, her age, health, and lack of any limitations that would
impair her employment.

In sum, the record is devoid of any evidence demonstrating that Birranes current
inability to meet her student loan obligations will continue for a significant part of the
repayment period. PHEAA stated in its trial brief that the repayment period was 25
years. Birrane has the burden to prove that she cannot earn more money in the years to
come. There are simply no additional circumstances that would impair her ability in
this regard. Birrane is well-educated, intelligent, physically healthy and has no
extraordinary, non-discretionary expenses.

The Panel finds therefore that the bankruptcy court erred as a matter of law in holding
that Birranes circumstances rise to the level of those additional circumstances
necessary to satisfy the second prong of the Brunner test. Generally, if one of the
elements of the three part undue hardship test is not proven, the inquiry must end and
the student loan cannot be discharged. The analysis under the third prong below may
therefore be unnecessary.

C. The Third Prong of the Brunner Test Requires That the Debtor Prove She Has Made
Good Faith Efforts to Repay the Loans.

Courts have measured good faith by examining various factors; the fact debtor has made
no payments or has made some payments on the loan is not in and of itself dispositive.
In re Nary, 253 B.R. 752, 768 (N.D.Tex. 2000) [Cite as: Nary, N.D. Tex., 2000] (court
may evaluate the debtors conduct in the broader context of his total financial picture).
Good faith is measured by the debtors efforts to obtain employment, maximize
income, and minimize expenses. Roberson, 999 F.2d at 1136 [Cite as: Roberson, 7th

Page 24 of 132
Cir., 1993]. A debtors effortor lack thereofto negotiate a repayment plan is an
important indicator of good faith.

PHEAA contends that the bankruptcy court incorrectly applied the legal standard under
the third Brunner prong when it determined that Birrane made a good faith effort to
repay her student loans, even though she a) did not make an effort to maximize her
income; and b) did not make an effort to repay her loans using the ICRP.

1. Maximizing Income.

The bankruptcy court found that debtor has satisfied the third prong; namely that she
has made good faith efforts to repay the loans as evidenced by the several payments she
made. The bankruptcy court made no other findings regarding the good faith prong.
However, good faith is also measured by the debtors efforts to obtain employment and
maximize income.

Birranes current employment allows her to reap the benefits of her education. Yet,
Birrane is not working full time. There was no evidence that she explored the possibility,
or was even willing, to take a second job outside her field that would allow her to meet
her student loan obligations. For example, she testified that she had not applied for any
jobs in the social work field in the last five years even though she has a Bachelor of Arts
degree in social work.

Further, Birrane evidently has her mornings free because she does not teach until late
afternoon. Her evenings are spent at her non-profit dance company. Consequently,
there is ample time for Birrane to work for additional income that could be used to
repay her student loan. She might also be able to apply her dance skills to help
choreograph routines for young and up-coming gymnasts, figure-skaters, or even the
community college and college dance teams or take on private students. Simply one or
two private students at $40 to $50 an hour would provide additional income to repay
her student loan. There was no evidence that Birrane explored these or other
possibilities within her field.

[T]he debtor may not willfully or negligently cause his own default, but rather his
condition must result from factors beyond his reasonable control. Roberson, 999 F.2d
at 1135 [Cite as: Roberson, 7th Cir., 1993]. Declining to obtain additional work is not a
factor beyond Birranes reasonable control. In sum, she has not used her best efforts to
maximize her income and therefore the Panel cannot find that she has made a good faith
effort to repay the loan.

2. ICRP.

Good faith is also measured by a debtors effortor lack thereofto negotiate a

repayment plan. The Panel notes that Birrane previously made some effort in
negotiating repayment of her student debt. For example, in July 2000, she made a
request under the Income Sensitive Repayment and Forbearance Program which,

Page 25 of 132
according to Birrane, was denied. Moreover, Birrane continued making payments on the
loan until March 2001.

Nonetheless, [a] debtors obligation to make good faith efforts to repay [her]
education loans is not extinguished with the filing of an adversary proceeding in
bankruptcy. Id. Even though Birrane learned about the ICRP apparently for the first
time during this trial, there was no evidence that she had any discussions with PHEAA
regarding the ICRP option that is available to her. Under the ICRP program, Birrane
would pay $141.77 with her current income level. This amount would be adjusted yearly
depending upon Birranes income. Further, at the end of 25 years, Birrane will be 61
years old, and any remaining balance on the loan would be discharged. At oral argument
before the Panel, PHEAA assured us that Birrane would qualify for the ICRP program.
Yet, Birrane not only ceased payments on her student loan in March 2001, but also
ceased any efforts to renegotiate a repayment schedule which would accommodate her
means even though one was available.

Birrane has the burden of proof on the issue of good faith. The Panel finds that the
bankruptcy court erred as a matter of law in finding that Birrane met the good faith
prong. She has not only failed to maximize her income by seeking part-time work, but
has failed to take any steps towards renegotiating a repayment scheduled under the
ICRP program. These factors are not beyond her reasonable control.

Page 26 of 132
 United States Court of Appeals, Ninth Circuit

In re Pena

[Cite as: Pena, 9th Cir., 1998]

FACTS

Debtors and appellees Ernest J. Pena, Jr. and Julie Pena are husband and wife. On July
1, 1994, they filed a petition for relief under Chapter 7 of the Bankruptcy Code. Among
the debts from which the Penas sought relief were federally guaranteed student loans
incurred by Ernest to attend ITT Technical Institute (ITT) in Phoenix, Arizona. Ernest
consolidated his loans under a single note for $9,399.60. . . . The loans were guaranteed
by appellant, United Student Aid Funds, Inc. (USA Funds) . . . .

When Ernest completed his studies at ITT, he was awarded a credential as an Associate
of Specialized Technology. The credential was useless to him. It did not help him in his
employment, and it was not accepted by other colleges for course work credit.
Nevertheless, the Penas made several payments on the student loans. When Ernest
became unemployed, they sought and obtained a 90-day deferral. At the end of that
period, they were unable to resume payments and have made no payments since.

Julie suffers from a serious mental disability. Since the age of 13 she has experienced
severe stabbing pains and occasionally hears voices. In 1992 she became psychotic and
was hospitalized. She has not been able to hold a job longer than six months to a year. In
or about August 1995, Julie received roughly $8,000 in a lump sum payment as an
award of past-due disability benefits related to her mental condition. The Penas used the
lump sum payment to buy a 1976 Oldsmobile Cutlass Supreme automobile and to pay
other bills. The Penas said they needed to buy the Cutlass because their other car, a 1972
Buick, did not run well. At the time of trial, Julie was receiving $378 per month in
disability payments.

When the Penas filed their bankruptcy petition, they listed net monthly income of
$1,178.67 (entirely from Ernests employment) and monthly expenses of $2,605. During
discovery, the Penas income had increased to $1,748.47 (Ernests net wages had
increased to $1,370.47 and Julie began receiving disability payments of $378.00), while
their expenses had dropped to $1,803.78 and they anticipated a further drop to $1,570.
By the time of trial, Ernest testified that his wages had increased an additional $1.57 per
hour, and expenses, as anticipated, had decreased to approximately $1,570 per month.

The bankruptcy court granted a discharge of the student loans pursuant to the undue
hardship provision in 11 U.S.C. 523(a)(8)(B). The BAP affirmed in a published
opinion.

Page 27 of 132
 APPLYING BRUNNER

A. Maintaining a Minimal Standard of Living on Current Income and Repaying the

Loans

The bankruptcy court found that the Penas net monthly income totaled $1,748 (Ernests
take-home pay of $1,370 plus Julies disability payments of $378). Although USA Funds
points out that the bankruptcy court did not include an increase in Ernests wages that
occurred between discovery and the time of trial, this does not suggest that the
bankruptcy court was clearly erroneous in its finding. There was evidence before the
bankruptcy court that Ernests income fluctuated. Accordingly, we accept as not clearly
erroneous the bankruptcy courts finding that the Penas monthly net income was
$1,748.

. . . Using its averaging analysis, the bankruptcy court found that the Penas expenses
on a monthly basis range[d] between $1,570 and $1,993. . . . Subtracting the Penas
average monthly expenses ($1,789) from their net monthly income ($1,748), the Penas
were faced with a monthly deficit of $41. Clearly, in these circumstances the Penas could
not maintain a minimal standard of living and pay off the student loans.

B. Additional Circumstances

The bankruptcy court did not state which of its findings it considered applicable to the
second prong of the Brunner test. However, two factual findings are relevant to this
portion of the analysis: Julies disability and the fact that Ernests earning potential was
not increased by his ITT education. USA Funds challenges these findings.

i. Julies Disability

Based on Julies testimony and a letter notifying her of her disability benefits, the
bankruptcy court found that Julie suffered from a mental medical condition ....
variously diagnosed as depression, manic depression (bipolar disorder), schizophrenia
and paranoia, which prevents long-term stability. USA Funds argues that because
this testimony was uncorroborated, it is insufficient to establish a medical disability. The
cases relied upon by USA Funds do not support this argument.

In re Sands, 166 B.R. 299, 311 (Bankr. W.D. Mi.1994), held that although a diabetic
debtors uncorroborated testimony of past medical problems did explain his lack of
employment prior to trial it did not establish a disability that will persist for an
extended period of time into the future. (emphasis added) [Cite as: Sands, BR W.D.
Mi., 1994]. The distinction between Sands and the present case rests in the nature of the
disabilities. In Sands, the debtor had pretrial medical problems requiring surgery which
interfered with his employment. Id. There was apparently no indication that the debtor
had continuing problems other than his diabetes. Id.

In contrast, Julie suffers from a serious ongoing mental illness which will likely continue
to interfere with her ability to work. She testified that since the age of 13 she has suffered

Page 28 of 132
from stabbing pains and she occasionally hears voices. In 1992, she became psychotic
and had to be hospitalized. Due to her disability, she has not been able to hold any job
for more than six months to a year.

. . . USA Funds also relies on portions of the lower court opinion[] in . . . In re Garrett,
180 B.R. 358 (Bankr.D.N.H.1995) [Cite as: Garrett, BR D. N.H., 1995]. In Garrett, one
of the debtors doctors provided a letter which stated in part, Avoid heavy lifting
(clerical work, e.g. typing okay). Garrett, 180 B.R. at 364 (quoting letter from Dr.
Taylor-Olson) (emphasis added). The court held, Based on the evidence before the
court, the court finds that Garretts medical problems would not prevent her from
obtaining the type of employment she is most suited for. Id.

. . . The present case is clearly distinguishable. In her testimony, Julie described her
serious, ongoing mental disability which continues to prevent her from obtaining
meaningful permanent employment. Further, her testimony is corroborated by an eight
thousand dollar back disability award, continuing disability payments and the letter
notifying her that she would receive disability payments. The bankruptcy court did not
clearly err in its conclusion that Julie has an ongoing disability which prevents her from
being employed.

ii. Ernests Lack of Job Potential

USA Funds contends the bankruptcy court erred by considering evidence regarding the
value of the ITT education. The Brunner court stated that [c]onsideration of this factor
is not only improper, it is antithetical to the spirit of the guaranteed loan program....
Brunner, 46 B.R. at 757 [Cite as: Brunner, BR S.D.N.Y., 1985].

We agree that consideration of educational value as a separate factor in analyzing undue

hardship would improperly place too much emphasis on this evidence. However, as part
of the second prong analysis, the value of Ernests education is relevant to his future
ability to pay off the student loans. The bankruptcy court did not err in considering that
Ernests income was not likely to increase as a result of his ITT education.

C. Good Faith

USA Funds finally contends that the bankruptcy court erred in finding that the Penas
exhibited good faith in attempting to pay back the student loans.

The bankruptcy court found, The debtors have made payments on the loans. After
being laid off from Honeywell, the debtors were given a 90-day deferment, but then
were unable to meet their obligations and filed chapter 7. These facts support the
bankruptcy courts finding of good faith.

. . . USA Funds also argues that the Penas lack of good faith is demonstrated by the fact
that when they received a lump sum payment of approximately $8,000 in back
disability benefits for Julie, they bought a car and paid other bills.

Page 29 of 132
Although there was no testimony regarding the purchase price of the car, it was
approximately 20 years old when they bought it. With regard to the use of part of the
lump sum payment to pay other bills, according to Ernests testimony at trial, the Penas
had unsecured debts totalling $43,360 of which the student loan is approximately
$8,685, excluding interest. USA Funds does not suggest why good faith would have
required the Penas to pay the student loan debt prior to paying down portions of their
other debts, when the other debts ($43,360 minus $8,685) were approximately four
times the amount of the student loans.

We conclude the bankruptcy court did not clearly err in finding that the Penas exhibited
good faith in attempting to pay back the student loans.

Page 30 of 132
Rafael I. Pardo & Michelle R. Lacey, The Real Student-Loan Scandal: Undue
Hardship Discharge Litigation, 83 Am. Bankr. L.J. 179 (Winter 2009)

[Cite as: Pardo & Lacey, Real Scandal, 2009]

[...]

ASSESSING THE IMPACT OF UNDUE HARDSHIP DISCHARGE LITIGATION ON

ACCESS TO JUSTICE

Here, we critically evaluate the determinants of substantive outcome in undue hardship

discharge litigation. In our analyses of the data,1 we have identified five determinants for
the extent of discharge a debtor will receive when litigating a claim of undue hardship.
Two of these fall within the category of doctrinal case characteristics. The first is the
aggregate factor count, a variable that tracked the sum total of the seven indicator
variables that were present in each adversary proceeding. These seven indicator
variables tracked the following characteristics that, if present, would doctrinally weigh
in favor of discharge:

(1) whether the debtors annual household income fell below the poverty line;
(2) whether the debtor failed to attain the education pursued with borrowed funds;
(3) whether the debtor or a dependent of the debtor suffered from a medical
condition;
(4) whether the debtor suffered from a work-limiting medical condition;
(5) whether the debtor was more than 55 years old;
(6) whether the debtor obtained the student loans on behalf of a third party (e.g., a
co-signing parent); and
(7) whether the debtor was unemployed.

We consider the first variable to relate to a debtors current inability to repay; the
second through sixth variables to relate to a debtors future inability to repay; and the
seventh variable to relate to a debtors good faith efforts to repay. The second
determinant falling within the category of doctrinal case characteristics is the amount of
student-loan debt sought to be discharged (i.e., more than $100,000).

The remaining three determinantsthe experience level of the debtors attorney (i.e.,
more than 25 years), the identity of the judge assigned to the debtors adversary
proceeding (i.e., Judge A or Judge B), and the procedural resolution of the debtors
adversary proceeding (i.e., settlement before a trial date was set)are nondoctrinal case
characteristics.

We find these results quite disquieting for a couple of reasons. First, close examination
of the doctrinal determinants reveals that the undue hardship doctrine has undermined
the fresh start principle by establishing a frame for litigants that places emphasis on

1Pardo and Laceys study looks exclusively at bankruptcy cases in the Western District of Washington.
The Ninth Circuit has appellate jurisdiction over this district.

Page 31 of 132
factors that fail to properly establish the threshold that constitutes impermissible
sacrifice by a student-loan debtor. Second, nondoctrinal case characteristics, which have
no legal relevance and thus ought not to have any bearing on the amount of debt
discharged, do influence the substantive outcome of undue hardship discharge
litigation. The fact that such characteristics predominate the group of determinants and
generally have a greater effect on outcome than the doctrinal determinants suggests that
undue hardship discharge litigation improperly curtails access to justice for student-
loan debtors who legitimately need relief from their financial distress. Our discussion
will now elaborate further upon both of these conclusions.

We begin by evaluating the doctrinal determinants of the extent of discharge received by

a student-loan debtor. Consider the positive effect documented for the aggregate factor
count, an amalgam of seven doctrinal factors each of which would weigh in favor of
discharge if present. At first blush, one might deem this effect to be appropriate. If,
however, one reconsiders the nature of the factors incorporated into the aggregate factor
count, one might be disinclined to reach such a conclusion. As previously mentioned,
only one of the seven factors relates to a debtors current inability to repaynamely,
whether the debtors annual household income fell below the poverty line. Perhaps
financial characteristics have not had a predictive role in substantive outcome because
most student-loan debtors who seek an undue hardship discharge find themselves in
relatively similar positions with regard to the financial distress they suffer as a result of
their educational debt. But there may be a different account.

As has been previously documented, financial indicators have not had a statistically
significant association with the outcome of bankruptcy court doctrine regarding the
undue hardship discharge. If the doctrine has failed to emphasize financial indicators,
thereby signaling to litigants that there are more significant considerations for a debtor
to prevail in a claim of undue hardship, we might expect the parties to approach the
litigation with an eye to focusing on nonfinancial indicators emphasized by the doctrine.
As further evidence of this, five of the seven factors in the aggregate factor count relate
to proxies for future inability to repay, with two of those factors involving health-related
considerations. The dominance of future-inability factors mirrors the prominence
bankruptcy court doctrine has given to the second prong of the Brunner test, which
requires the debtor to establish a future inability to repay the student loans. Using
nonfinancial characteristics as a proxy for repayment ability, however, can result in an
improper sorting of debtors that, in all likelihood, will be underinclusive in identifying
debtors with an inability to repay their student loans. Accordingly, although consonant
with current doctrine, the aggregate factor count and its association with the extent of
relief may nonetheless be interpreted as a negative unintended consequence of a system
that requires debtors to establish their eligibility for debt relief under an unclear
standard.

This problem will be further compounded by the nondoctrinal determinants of

substantive outcome. Consider our finding that representation by a highly experienced
attorney is positively associated with the extent of discharge. One might characterize
this situation as a lack of access to justice that results from excessive search costs that
prevent student-loan debtors from finding the highly experienced attorneys who will

Page 32 of 132
provide better chances of obtaining extensive relief. Or perhaps the situation can be
characterized as the product of a principal-agent problem where, for some reason, less-
experienced attorneys fail to act in their clients best interests. A principal-agent
problem may also be linked to our finding that early settlement (i.e., before the court set
a trial date) yielded more extensive relief for debtors. The decision to settle and the
point in time at which to do so are considerations for which a debtor will rely upon his
or her attorney for guidance. If the fee arrangement between the debtor and the debtors
attorney discourages the attorney from recommending settlement, the debtor may end
up being steered to a procedural posture that works to the disadvantage of the debtor
but to the financial advantage of the attorney. While our data do not and cannot shed
light on these inferences, the possibility that these issues may underlie the nondoctrinal
determinants of the extent of discharge warrants serious re-evaluation of structuring a
system that requires debtor to litigate their claims for forgiveness of student-loan debt.

Finally, consider our finding that the identity of the judge assigned to the adversary
proceeding is associated with the extent of discharge. To properly interpret this finding,
one must keep in mind that assignment of an adversary proceeding to a judge is not the
equivalent of a judge making an undue hardship discharge determination. The latter
only occurred only in proceedings resolved by trial, which constituted 26% of the
proceedings in the reduced dataset. Accordingly, in nearly three-quarters of the
proceedings upon which our statistical model is based, the judge did not decide whether
the debtors circumstances warranted an undue hardship discharge. Nonetheless,
through managerial judging, judges may attempt to facilitate pretrial settlement. If
managerial judging signals to litigants what the outcome would be were the proceeding
to be resolved by trial, then it seems reasonable to conclude that a judge may be well
poised to influence the outcome of settled proceedings.

As for proceedings resolved by trial, we have previously documented in our study of

bankruptcy court doctrine regarding the undue hardship discharge that substantive
outcome was best explained by differing judicial perceptions of how the same standard
applied to similarly situated debtors. We have no reason to believe that the dynamic
would be different in this context. As one bankruptcy judge has observed, because of the
lack of a statutory definition for undue hardship, so much is therefore left to the
individual view of each judge who, after all, brings the sum of who and what he was,
what he has become, and what he sees through his own eyes. When disparate treatment
results from the judge to whom a case has been assigned, rather than from differences in
the factual characteristics underlying a debtors claim of undue hardship, we have a
uniform law only in form and not in substance. In the context of undue hardship
discharge litigation, this has the consequence of denying access to justice and thus
undermining the fresh start principle enshrined in the Bankruptcy Code.

Ultimately, the associations unearthed by our regression analyses give considerable

traction to our concerns regarding access to justice. If extralegal factors predominantly
influence the extent of discharge obtained by student-loan debtors, then policymakers
need to reconsider the assumptions they have made regarding the propriety of discharge
litigation in a system oriented toward granting substantive relief to debtors.

Page 33 of 132
 United States Court of Appeals, Eighth Circuit

In re Long

[Cite as: Long, 8th Cir., 2003]

ECMC . . . urges this Court to adopt the three-part test articulated in Brunner v. New
York State Higher Educ. Serv. Corp., in a determination of undue hardship. 831 F.2d
at 396. For the reasons set forth below, we decline to do so. Instead, we reaffirm the
totality-of-the-circumstances test as set forth in Andrews v. South Dakota Student Loan
Assistance Corp. (In re Andrews), 661 F.2d 702, 704 (8th Cir. 1981) [Cite as: Andrews,
8th Cir., 1981].

Section 523(a)(8)(B) provides that an educational loan is not dischargeable unless

excepting such debt from discharge . . . will impose an undue hardship on the debtor
and the debtors dependents. Congress excepted student loans from discharge in order
to close what it deemed a loophole in the student loan program. See Raymond L.
Woodcock, Burden of Proof, Undue Hardship, and Other Arguments for the Student
Debtor Under 11 U.S.C. 523(A)(8)(B), J.C. & U.L. 377, 38184 (1998) [Cite as:
Woodcock, Burden of Proof, 1998]. The policy of this provision was clear. Congress
intended to prevent recent graduates who were beginning lucrative careers and wanted
to escape their student loan obligation from doing so.

However, the clarity that is found in the legislative purpose and policy surrounding
523(a)(8)(B) is decidedly absent in the meaning Congress ascribed to the term undue
hardship. The Bankruptcy Code does not define the phrase and courts have struggled
with its meaning. A divergent body of appellate authority has attempted to unwrap the
undue hardship enigma.

Many bankruptcy courts, including several in the Eighth Circuit, have adopted the
Brunner test. To date, the Eighth Circuit has not. We prefer a less restrictive approach
to the undue hardship inquiry. See Andrews, 661 F.2d at 704 [Cite as: Andrews, 8th
Cir., 1981]. We are convinced that requiring our bankruptcy courts to adhere to the strict
parameters of a particular test would diminish the inherent discretion contained in
523(a)(8)(B). Therefore, we continueas we first did in Andrewsto embrace a totality-
of-the-circumstances approach to the undue hardship inquiry. We believe that
fairness and equity require each undue hardship case to be examined on the unique
facts and circumstances that surround the particular bankruptcy.

In evaluating the totality-of-the-circumstances, our bankruptcy reviewing courts should

consider: (1) the debtors past, present, and reasonably reliable future financial
resources; (2) a calculation of the debtors and her dependents reasonable necessary
living expenses; and (3) any other relevant facts and circumstances surrounding each
particular bankruptcy case. Simply put, if the debtors reasonable future financial
resources will sufficiently cover payment of the student loan debtwhile still allowing
for a minimal standard of livingthen the debt should not be discharged. Certainly, this
determination will require a special consideration of the debtors present employment

Page 34 of 132
and financial situationincluding assets, expenses, and earningsalong with the
prospect of future changespositive or adversein the debtors financial position.

We take special note that some bankruptcy courts in our circuit have not acknowledged
and followed the controlling Andrews standard in an undue hardship determination.
We trust that this opinion will serve to clarify the applicable analysis in future cases.

Page 35 of 132
 United States Bankruptcy Appellate Panel, Eighth Circuit

In re Parker

[Cite as: Parker, BAP 8th Cir., 2005]

BACKGROUND

The Debtor is a fifty-one year old divorced woman with no dependents. The Debtor
graduated from Arkansas State University in 1991 with a degree in art education. The
Debtor financed her education with the student loan which is the subject of this dispute.
At the time of her graduation, the Debtors student loan obligation was $25,000.

After graduation the Debtor actively sought a position as an art teacher; however, she
was unable to obtain a teaching position until 1999. Between 1991 and 1999 the Debtor
worked at the Jonesboro Human Development Center. During that time the Debtor was
unable to make her student loan payments and repeatedly sought and received
forbearances and deferments of her student loan debt. As a result, the balance due on
the loan, $69,794.17, now greatly exceeds the original loan amount.

In 1999, the Debtor obtained employment as an art teacher with the Cross County
School District in Cherry Valley, Arkansas, a poor economic area. She continues to work
as an art teacher for that school district. During the summer months when she is not
teaching, the Debtor watches her granddaughters, ages 6 through 13, for free to help her
daughter out. It would be possible for the Debtor to get a paying summer job but [shes]
afraid that it would be very detrimental to [her] daughter. She earns no income other
than her teaching salary.

In 2000, the Debtor broke her back in a boating accident. She wore a brace for a year
after the accident. She continues to take medication for her back. The injury has not
precluded her work as an art teacher. As a result of the accident, the Debtor cannot
perform heavy lifting; however, if she does not stand, sit, or lie down for too long the
pain is not too bad. The Debtor continued to work with horses after the accident, playing
with them, grooming them and riding them. The Debtor was unable to run or jump the
horses after the accident.

The Debtor separated from her husband in September, 2003, and obtained a final
divorce decree on June 14, 2004. She filed a petition for relief under Chapter 7 of the
Bankruptcy Code on July 12, 2004.

. . . On August 11, 2004, the Debtor filed a complaint seeking the discharge of her
student loan obligation as an undue hardship under Section 523(a)(8) of the Bankruptcy
Code. The matter was tried on December 7, 2004.

. . . At the time of her bankruptcy filing, the Debtors annual salary was $23,372.40. Her
gross monthly income was $1,947.70 and her net monthly income after deductions for
taxes, social security, and health insurance was $1,297.30. In October, 2004, the

Page 36 of 132
Debtors annual salary increased to $30,200. The salary increase was the result of
legislation which required the Cross County School District to pay a minimum salary.
The Debtors net monthly income is now $1,443. The Debtor anticipates yearly salary
increases of $500.

As of the petition date, the Debtors monthly expenses, excluding the student loan
obligation, were $1,341.86. At the time of trial, the Debtor expected her rent to increase
by $75 in January, 2005. The Debtor also anticipated additional expenses for propane
gas, water, and garbage pickup. The Debtor was unable to quantify the additional
propane cost, estimated garbage pickup costs between $12 and $15 per month, and
indicated that water cost more during the summer, like an average of $15 or $20 a
month.

The Debtor drives a 1996 Mercury Villager minivan with 182,000 miles. She has
transportation costs of $195 per month, which include the costs of transporting her
grandchildren to and from Mississippi including travel for the grandchildren to visit
their father.

The balance due on the Debtors student loan as of the date of trial was $69,794.17. If
the Debtor were to elect the William D. Ford Consolidation Program offered by the
Appellant, the Debtors monthly payments on account of the student loan obligation
would be $136.33 based on her income as of the petition date. Payments under this
program are calculated based upon the Debtors ability to pay and are tied to her actual
income. After twenty-five years of payments under this program, any remaining balance
would be forgiven.

The bankruptcy court found that the Debtor had net monthly income of $1,443 and net
monthly expenses of $1,905.95 based on her schedules as of the petition date. The net
monthly expenses included a student loan payment of $564.09 and transportation costs
of $195.00. The court found that the Debtors monthly expenses were anticipated to
increase by approximately $100 per month for additional rent and utility expenses. The
court found that the Debtors transportation costs of $195 per month were unnecessarily
high due to the transporting of her grandchildren and reduced the Debtors reasonable
necessary monthly transportation expenses by $50. The court also imputed to the
Debtor additional net income of $100 per month due to her potential for summer
employment. The court found that if the student loan payment of $564.09 were
eliminated from her budget, she would have excess monthly income of $151.

Nonetheless, the court determined that the student loan debt created an undue hardship
for the Debtor and entered its judgment discharging the obligation. The Appellant
appealed the discharge of the student loan debt.

DISCUSSION

Pursuant to Section 523(a)(8) of the Bankruptcy Code, a student loan obligation is

excepted from discharge unless excepting such debt from discharge . . . will impose an

Page 37 of 132
undue hardship on the debtor and the debtors dependents. 11 U.S.C. 523(a)(8). The
debtor bears the burden of proving undue hardship by a preponderance of the evidence.

. . . The Debtors current financial resources consist of her net monthly income of
$1,443. Her income reflects a substantial increase over her past earnings. As long as the
Debtor continues to work as an art teacher for the Cross County School District, future
raises are anticipated at $500 per year.

The Debtor has a duty to maximize her income. Although she is working full-time as a
teacher, the Debtor admitted that it would be possible for her to get a paying summer
job. The bankruptcy court found that the Debtor was capable of summer employment
and attributed to her additional net income of $100 per month. Although the record
lacks any support for this finding, the Debtor has adopted it for purposes of this appeal.
Therefore, we hold that the bankruptcy court properly imputed to the Debtor current
net monthly income of $1,543.

The Debtors reasonable monthly living expenses are $1,391.20. This figure takes into
account the bankruptcy courts finding that the Debtors transportation expenses are
excessive because of transporting her grandchildren and includes additional rent and
utility payments which the Debtor quantified and which were scheduled to go into effect
the month after the trial. No one has challenged these findings which are supported by
the evidence.

The Debtors budget provides her with excess income of $152 per month. This provides
sufficient excess income to make payments of $136.33 per month on the student loan
under the William D. Ford Consolidation Program. To the extent the Debtor does not
fully repay the student loan, any unpaid balance will be forgiven after completion of
payments under the William D. Ford Consolidation Program.

Another factor to consider is the Debtors health. The Debtor has had medical problems
in the past, but they do not prevent her from working as an art teacher or from caring
for her grandchildren. The Debtor maintains medical insurance for which she pays
through salary deduction. . . . Medical problems do not appear to be a major factor
contributing to her bankruptcy nor have they prevented her employment as an art
teacher.

Where a debtors reasonable future financial resources will sufficiently cover payment of
the student loan debt-while still allowing for a minimal standard of living-then the debt
should not be discharged. The Debtor clearly has the ability to make payments on the
student loan under the William D. Ford Consolidation Program. The Debtor earned the
degree for which she obtained the student loans and is working in her desired field. It is
unfortunate that the Debtors student loan balances are so high today. However, the
high balance of the loan is the result of numerous forbearances and deferments received
over the years. The Appellant should not be penalized for its past leniency and
numerous attempts to work with the Debtor. Repayment of the student loan may be
difficult, but the Debtor did not meet her burden of establishing undue hardship.

Page 38 of 132
 United States Court of Appeals, Eighth Circuit

Educational Credit Management Corp. v. Jesperson

[Cite as: Jesperson, 8th Cir., 2009]

. . . We apply a totality-of-the-circumstances test in determining undue hardship under

523(a)(8). Reviewing courts must consider the debtors past, present, and reasonably
reliable future financial resources, the debtors reasonable and necessary living
expenses, and any other relevant facts and circumstances. The debtor has the burden of
proving undue hardship by a preponderance of the evidence. The burden is rigorous.

. . . When this case was tried in February 2007, Jesperson was forty-three years old, in
good health, and unmarried, with two sons from different relationships living with their
mothers. He began college in 1983, attended three schools over the next eleven years,
and graduated from the University of Minnesota-Duluth in 1994. He began law school in
1996, changed schools in 1997, completed his legal education in 2000, and passed the
bar on his first attempt in February 2002. At the time of trial, he owed ECMC
$304,463.62 in principal, interest, and collection costs on eighteen student loans, and
he owed Arrow Financial Services $58,755.26 on seven other student loans. He has
never repaid any part of any loan.

The bankruptcy court found that Jespersons record of work experience is besmirched
by a patent lack of ambition, cooperation and commitment. After passing the bar,
Jesperson was hired as a judicial clerk on the island of Saipan, then as an attorney with
Alaska Legal Services, and then as a legal temporary with Kelly Services, Inc. He quit
each job for a variety of personal reasons. Several months after leaving Kelly, he began
work for another placement agency, Spherion Professional Services. At the time of trial,
he was working on a project that paid $25 an hour. He was one of only ten lawyers
Spherion retained out of a pool of sixty. He testified at trial:

Q: Its true, Mr. Jesperson, that you think this debt should just go away, isnt that
true:
A: Yes.
Q: And even if you had, Mr. Jesperson, an extra $500 per month, you dont think
you should have to put that towards your student loans, do you?
A: No.

. . . . The bankruptcy court estimated Jespersons basic necessary monthly expenses as

$2,857$1,000 for housing, $1,000 for child support, $325 for food, $142 for auto
maintenance and insurance, $250 for gasoline, and $140 for parking. However,
Jesperson testified at trial that he lived rent free with his brother, expected to pay his
brother $500 per month, and was looking for an apartment. Estimating his basic
necessary monthly housing expense at $1,000 per month, rather than $500, was clear
error. A debtor making a good faith effort to repay loans would continue to live with his
brother to save money. While Jesperson is under a court order to pay $500 per month
to support his elder son, he testified he has never made a full monthly payment. He does

Page 39 of 132
not owe child support for the younger son, but occasionally pays $200-$400 to the
mother of this son, and feels an obligation to pay $500 to support each child.

Based on these estimates, the bankruptcy court concluded that Jespersons current
surplus is at best a trifle and more likely a fiction. This was clear error. A court may not
engage in speculation when determining net income and reasonable and necessary
living expenses. To be reasonable and necessary, an expense must be modest and
commensurate with the debtors resources. In re DeBrower, 387 B.R. 587, 590
(Bankr.N.D.Iowa 2008) [Cite as: DeBrower, BR N.D. Iowa, 2008]. On this record, it is
apparent that the court underestimated Jespersons monthly net income and
overestimated his reasonable and necessary living expenses in concluding he has no
current surplus from which student loans could be repaid. A reasonable estimate would
be a surplus of approximately $900 per month.

Jespersons young age, good health, number of degrees, marketable skills, and lack of
substantial obligations to dependents or mental or physical impairments weigh in favor
of not granting an undue hardship discharge. Thus, on this record, the only reason he
has even a colorable claim of undue hardship is the sheer magnitude of his student loan
debts. While the size of student loan debts relative to the debtors financial condition is
relevant, this should rarely be a determining factor . . .

When the size of the debts is the principal basis for a claim of undue hardship, the
generous repayment plans Congress authorized the Secretary of Education to design and
offer under the William D. Ford Federal Direct Student Loan Program become more
relevant to a totality-of-the-circumstances undue hardship analysis. The most generous
plan is the Income Contingent Repayment Plan (ICRP), which permits an eligible
borrower to make varying annual repayment amounts based on the income of the
borrower, paid over an extended period of time prescribed by the Secretary, not to
exceed 25 years.

. . . ECMC presented undisputed evidence that its loans to Jesperson are eligible for the
ICRP. Based on Jespersons adjusted gross income at the time of trial, the bankruptcy
court found that his 2008 monthly ICRP payments would be $629 per month for a
family of one, $572 per month for a family of two, and $514 per month for a family of
three, without regard to the size of his unpaid student loan balance. Thus, with a current
surplus of $900 per month, the record establishes that he can make ICRP payments on
his ECMC loans without compromising a minimal standard of living.

. . . Jesperson is a paradigmatic example of a student loan debtor for whom ICRP

eligibility combined with his other circumstances require a conclusion of no undue
hardship. Near the start of his legal career, he seeks bankruptcy discharge of multiple
student loan debts he never tried to repay. Recent employment is evidence that, if
motivated, he will enjoy sustained legal employment in future years, profiting from his
many years of loan-subsidized higher education. Based on Jespersons history of
employment retention difficulty, the bankruptcy court thought it unlikely he would
increase or even maintain his current rate of pay in the future. But this pessimistic
speculation is unwarranted and inappropriate. A debtor is not entitled to an undue

Page 40 of 132
hardship discharge of student loan debts when his current income is the result of self-
imposed limitations, rather than lack of job skills, and he has not made payments on his
student loan debt despite the ability to do so. With the receipt of a government-
guaranteed education, the student assumes an obligation to make a good faith effort to
repay those loans, as measured by his or her efforts to obtain employment, maximize
income, and minimize expenses. In re Roberson, 999 F.2d 1132, 1136 (7th Cir. 1993)
[Cite as Roberson, 7th Cir., 1993]. Here, Jesperson testified that he was unaware of the
ICRP until settlement negotiations in this proceeding, further evidence of a less than
good faith effort to repay his student loan debts.

On this record, we conclude that, with the aid of an income contingent repayment plan,
Mark Allen Jesperson can presently make student loan payments without compromising
a minimal standard of living, and he has the potential of repaying at least a substantial
portion of his student loan debts during the ICRP repayment period. When a debtor is
eligible for the ICRP, the court in determining undue hardship should be less concerned
that future income may decline. The ICRP formula adjusts for such declines, without
regard to the unpaid student loan balance, which in most cases will avoid undue
hardship. Therefore, however unattractive or unfair Jesperson may find this situation,
he is not entitled to an undue hardship discharge under 523(a)(8). The judgment of
the district court is reversed, and the case is remanded with directions to enter an order
declaring that Jespersons student loan debts to ECMC are not discharged.

Page 41 of 132
 United States Bankruptcy Court, N.D. Iowa

In re Tyer

[Cite as: Tyer, BR N.D. Iowa, 2008]

FINDINGS OF FACT

Debtor owes ECMC more than $120,000 in student loans. This amount arises from a
consolidated student loan she received in 1995 in the original amount of approximately
$50,000. . . . Debtor incurred the loans to finance undergraduate and graduate studies.
She testified that she filed her bankruptcy petition in order to discharge her student
loans. The only other debt listed is credit card debt owed to the University of Iowa
Comm. Credit Union of $2,697 which she has reaffirmed.

Prior to returning to college in the mid1980s, Debtor was a homemaker, raising a

child. She worked in a clerical capacity at Northwest Michigan College and took basic
courses. After a divorce in 1983, Debtor decided to complete her bachelors degree. She
received a B.A. in theater, cum laude, from Michigan State in 1987 when she was 43
years old. After working for a time and searching for a graduate school, Debtor began
attending the University of Iowa in 1991, where she was also a teachers assistant. She
received her masters in theater in 1994 hoping to teach theater at the college level.
When Debtor could not find a job in theater, she started working at ACT where she
remains employed today. She is now 63 years old. She has no significant health
concerns. She is divorced and lives alone.

Debtor has annual gross earnings of $37,500. Her net biweekly checks are $900. Debtor
also receives $180 per month from a Michigan retirement account, which she deposits
into an IRA account. She contributes to a TIAACREF retirement account. The IRA
balance is approximately $9,000 or $10,000. The TIAACREF account value is more
than $40,000.

. . . Debtors monthly expenses appear reasonable. Pursuant to Debtors testimony and

answer to Interrogatory No. 22 in Exhibit 1, Debtors monthly expenses are
approximately $2,027.33. Included in this amount is $350 for the future purchase of an
automobile. Debtor currently drives a 1992 Mercury Topaz and has no car payments.
The Court has excluded Debtors cigarette expense of $100 which Debtor testified she no
longer has. Debtors monthly net income and net expenses are both approximately
$2,000.

Interest is accruing on the student loan debt at approximately $767 per month. The
payment alternatives outlined by ECMC in Exhibit A range from $929.94 for 25 years to
$371.85 under an Income Contingent Repayment Plan [ICRP] for 25 years, after which
the remaining balance is discharged, with possible tax consequences. Debtor testified
that she cannot afford to make even the ICRP payments now while she continues to be
employed. Debtor will likely have less income after she retires in a few years. She will be
eligible for Social Security payments of $1,014 at age 66, but does not know how much

Page 42 of 132
she will received from TIAACREF on retirement. Her monthly retirement payments of
$180 from Michigan will end in about seven years.

Debtor made monthly payments of $50 for a short time after the consolidated loan
became due. . . . Debtor requested and received deferments or forbearances for several
years based on her inability to pay. She has remained in contact with her student loan
creditors every year and sent them the required documentation.

CONCLUSIONS OF LAW

Student loan debts are not discharged in bankruptcy unless excepting such debt from
discharge under this paragraph will impose an undue hardship on the debtor and the
debtors dependents. 11 U.S.C. 523(a)(8). Debtor must prove the existence of undue
hardship by a preponderance of the evidence.

Undue hardship requires examination of the totality of circumstances. In re Reynolds,

425 F.3d 526, 532 (8th Cir. 2005) [Cite as: Reynolds, 8th Cir., 2005]. In evaluating the
totality-of-the-circumstances, our bankruptcy courts should consider: (1) the debtors
past, present, and reasonably reliable future financial resources; (2) a calculation of the
debtors and her dependents reasonable necessary living expenses; and (3) any other
relevant facts and circumstances surrounding each particular bankruptcy case. Simply
put, if the debtors reasonable future financial resources will sufficiently cover payment
of the student loan debtwhile still allowing for a minimal standard of livingthen the
debt should not be discharged. In re Long, 322 F.3d 549, 554 (8th Cir. 2003) [Cite as:
Long, 8th Cir., 2003]. The first factor will require a special consideration of the
debtors present employment and financial situationincluding assets, expenses, and
earningsalong with the prospect of future changespositive or adversein the
debtors financial position. Id.

The second factor, concerning debtors living expenses, requires a determination of what
expenses are reasonable and necessary. To be reasonable and necessary, expenses
must be modest and commensurate with the debtors resources. In re Meling, 263 B.R.
275, 279 (Bankr. N.D. Iowa 2001), affd, 2002 WL 32107248 (N.D. Iowa 2002) [Cite as:
Meling, BR N.D. Iowa, 2002].

Other relevant factors and circumstances of each individual bankruptcy case may
include: (1) the debtors good faith effort to repay the loan, or a debtors bad faith in
non-repayment, (2) whether the debtor has made a good faith effort to obtain
employment, maximize income, and minimize expenses, and (3) whether the debtor is
suffering truly severe, even uniquely difficult financial circumstances, not merely severe
financial difficulty. The availability of an Income Contingent Repayment Plan
(ICRP) is but one factor to be considered.

[...]

Page 43 of 132
 ANALYSIS

Pursuant to the record as a whole and based on the foregoing applicable legal principles,
the Court concludes that Debtor has failed to prove by a preponderance of the evidence
that excepting her student loan debt from discharge will impose an undue hardship on
her. Debtor earned $37,500 in 2007 and has worked for the same employer for many
years. The record fails to accurately predict what Debtors retirement income will be, but
Debtor has several working years left before retiring and her earnings will likely
continue to modestly improve prior to retirement.

Debtors expenses are reasonable. She has no other debt except for one credit card with
her credit union. While Debtor received deferments allowing her not to make payments
on her consolidated student loan, she has accumulated more than $50,000 in
retirement accounts. The Court concludes that there is sufficient latitude in Debtors
budget to allow her to make some payments on her student loan.

When Debtor consolidated her student loans in 1995 with a 25year term, she was 51
years old. Thus, had Debtor made regular payments of between $337.26 and $454.94,
the loan would have been paid off when Debtor was about 76 years old. Debtor is now 63
and anticipates retiring when she is 67 or 68. She has no health problems or
dependents. She asked for and received deferments and forbearances from her student
loan creditors for several years. These facts mitigate against the effect of Debtors age as
an indicator of undue hardship. Debtor has not yet reached retirement age.

The Court recognizes that the amount of debt in this case is substantial. Clearly, the
inability to discharge this debt has an impact upon Debtor. Nevertheless, the legal test
for dischargeability is set by law and the threshold has intentionally been set very high.
As such, the Court concludes that Debtor is not suffering truly severe or uniquely
difficult financial circumstances, as those terms are legally defined, which would entitle
her to an undue hardship discharge of her student loans.

WHEREFORE, Debtors Complaint to Determine Dischargeability of Student Loans is

DENIED. FURTHER, the student loan debt owed to Education Credit Management
Corp. is excepted from discharge under 523(a)(8).

Page 44 of 132
 United States Court of Appeals, Sixth Circuit

In re Oyler

[Cite as: Oyler, 6th Cir., 2005]

We have recognized and frequently applied the three prongs of Brunner in our undue
hardship cases (and also our health-education-assistance-loan unconscionability cases),
but have hesitated to explicitly adopt Brunner as the exclusive analytical framework.
Instead, we have considered the Brunner test, along with other factors such as: (1) the
debt amount; (2) the interest rate; (3) the debtors claimed expenses and current
standard of living to evaluate whether the debtor has attempted to minimize expenses;
(4) the debtors income, earning ability, health, education, dependents, age, wealth, and
professional degrees; and (5) whether the debtor has attempted to maximize income by
seeking or obtaining employment commensurate with her education and abilities. Miller
v. Pa. Higher Educ. Assistance Agency (In re Miller), 377 F.3d 616, 623 (6th Cir.2004)
[Cite as: Miller, 6th Cir., 2004].

We believe our current hybrid-Brunner model for assessing undue hardship foments
confusion because our so-called other factors actually fit easily into the well-accepted
Brunner analytical template. For instance, we have labeled a debtors expenses and
standard of living and the amount of the debt as independent factors, yet Brunner-test
courts regularly scrutinize these same factors under the first prong of the test. We have
cabined as a separate factor a debtors attempt to maximize income, but most courts
conceptualize that inquiry as the controlling aspect of Brunners second prong. And
nearly all of the bankruptcy courts in this circuit apply the test and employ these other
factors within the Brunner framework. Given then, that the Brunner construct
subsumes the criteria we have treated as distinct and independent, and that the Brunner
formulation easily accommodates factors we look to in evaluating undue hardship, we
opt to join other circuits in adopting the simpler rubric of the Brunner test.

Applying the Brunner test, we conclude that Oyler fails its second prong, because he has
shown no additional circumstances . . . indicating that this state of affairs is likely to
persist for a significant portion of the repayment period. Such circumstances must be
indicative of a certainty of hopelessness, not merely a present inability to fulfill financial
commitment. They may include illness, disability, a lack of useable job skills, or the
existence of a large number of dependents. And, most importantly, they must be beyond
the debtors control, not borne of free choice. Choosing a low-paying job cannot merit
undue hardship relief. See Healey v. Massachusetts Higher Educ. (In re Healey), 161
B.R. 389, 395 (E.D.Mich.1993) [Cite as: Healey, BR E.D. Mich., 1993] (A resolute
determination to work in ones field of dreams, no matter how little it pays, cannot be
the fundamental standard from which undue hardship . . . is measured.).

Oylers choice to work as a pastor of a small start-up church cannot excuse his failure to
supplement his income so that he can meet knowingly and voluntarily incurred financial
obligations. By education and experience he qualifies for higher-paying work and is
obliged to seek work that would allow debt repayment before he can claim undue

Page 45 of 132
hardship. See Storey v. Natl Enter. Sys. (In re Storey ), 312 B.R. 867, 872
(Bankr.N.D.Ohio 2004) [Cite as: Storey, BR N.D. Ohio, 2004] (debtor must do
everything in his power to improve financial situation); Kraft v. New York State Higher
Educ. Serv. Corp. (In re Kraft), 161 B.R. 82, 8687 (Bankr.W.D.N.Y.1993) [Cite as:
Kraft, BR W.D.N.Y., 1993] (debtor needed to look for all job opportunities before
claiming undue hardship). The Bankruptcy Court erred by not considering that Oylers
decision not to maximize his earnings, though commendable, was voluntarily made after
he also voluntarily incurred the debt that he now wishes to discharge.

Because Oylers circumstances fail to meet the Brunner standard to qualify for undue-
hardship discharge of his student loans, we reverse the decision of the Bankruptcy
Appellate Panel.

Page 46 of 132
 United States District Court, D. Massachusetts

State University New YorkStudent Loan Service Centers v. Menezes

[Cite as: Menezes, BR D. Mass., 2006]

[...]

II. THE APPLICABLE LAW

. . . As the First Circuit has explained, with regard to determining whether a debtor has
satisfied her substantial burden to prove undue hardship:

[N]ine circuit courts of appeal [ ] have followed the Second Circuits test set forth
in Brunner v. New York State Higher Educ. Servs. Corp., 831 F.2d 395 (2d
Cir.1987) (per curiam) [Cite as: Brunner, 2d Cir., 1987]. This is a tripartite test,
requiring that the debtor show inability, at her current level of income and
expenses, to maintain a minimal standard of living; the likelihood that this
inability will persist for a significant portion of the repayment period; and the
existence of good faith efforts to repay the loans.

A facially different test is the Eighth Circuits totality-of-circumstances test,

which would have courts consider the debtors reasonably reliable future
financial resources, his reasonably necessary living expenses, and any other
relevant facts. See Long v. Educ. Credit Mgmt. Corp. (In re Long), 322 F.3d 549,
554 (8th Cir. 2003) [Cite as: Long, 8th Cir., 2003]. Appellant [in Nash] contends
that this test does not include good faith effort under the other relevant facts
rubric, although bankruptcy courts within the Eighth Circuit are not unanimous
on this issue. She urges a true totality of the circumstances test, focusing solely
on the ability of the debtor to maintain a minimal standard of living now and in
the foreseeable future and still afford to make loan repayments.

Nash v. Connecticut Student Loan Foundation, 446 F.3d 188, 19091 (1st Cir.2006)
[Cite as: Nash, 1st Cir., 2006].

[...]

IV. ANALYSIS

Menezes urges this court to adopt the totality of the circumstances test which would
permit the bankruptcy court to consider a debtors past good faith as part of an honest
and intelligent judgment after having given due consideration to all of the information
the parties have provided about the problem to be resolved. However, it is not necessary
for this court to choose between the Brunner and totality of the circumstances tests in
this case because the bankruptcy court erred in finding undue hardship under either
test.

Page 47 of 132
The sole Circuit to utilize the totality of the circumstances test has characterized it as
follows:

In evaluating the totality-of-the-circumstances, our bankruptcy reviewing courts

should consider: (1) the debtors past, present, and reasonably reliable future
financial resources; (2) a calculation of the debtors and her dependents
reasonable necessary living expenses; and (3) any other relevant facts and
circumstances surrounding each particular bankruptcy case. Simply put, if the
debtors reasonable future financial resources will sufficiently cover payment of
the student loan debt-while still allowing for a minimal standard of living-then
the debt should not be discharged. Certainly, this determination will require a
special consideration of the debtors present employment and financial
situation-including assets, expenses, and earnings-along with the prospect of
future changes-positive or adverse-in the debtors financial position.

Long, 322 F.3d at 55455 (emphasis added) [Cite as: Long, 8th Cir., 2003]. The
emphasized language in Long places the focus on what are, essentially, the first two
prongs of the Brunner test.

As the First Circuit has stated, [u]nder any test assessing eligibility for discharge of
student loan debt, [the debtor] must show that her current inability to maintain a
minimal standard of living if forced to repay the debt will continue in the future. Nash,
446 F.3d at 192 [Cite as: Nash, 1st Cir., 2006]. Therefore, under the totality of the
circumstances test a debtor must, at a minimum, prove that she is unable both to make
particular student loan payments and to maintain a minimal standard of living.

. . . Assuming without holding, that the totality of the circumstances test, rather than the
similar Brunner test, should be employed, when viewed in the context of the entire
record, key factual findings of the bankruptcy court are clearly erroneous. In addition,
based on the facts which are supported by the evidence, the court finds that Menezes has
not proven that being required to repay her ECMC and SUNY student loans would be an
undue hardship.

Page 48 of 132
 Michael J. Fletcher and J. Jackson Waste, Student Loan Discharge
Decisions Poke Holes in the Brunner Test, American Bankruptcy Institute
Journal, Vol. XXXIII, No. 2, (Feb. 2014)

[Cite as: Fletcher & Waste, Brunner Test, 2014]

HISTORY OF STUDENT LOAN DISCHARGE AND THE BRUNNER TEST

Prior to 1976, the honest-but-unfortunate debtor could discharge his or her student loan
just as they could any other unsecured debt. However, in the early 1970s, Congress
became concerned with reports of recent graduates seeking to discharge their student
loans just before beginning potentially lucrative careers. Whether real or imagined, the
prospect of widespread abuse resulted in Congress passing the Education Amendments
Act of 1976, which made student loans funded by the government nondischargeable for
five years absent a showing of undue hardship. Shortly thereafter, the exception was
codified as 11 U.S.C. 523(a)(8).

The Bankruptcy Code remained unchanged through 1987, when Brunner v. New York
Higher Education Services Corp. was decided. In Brunner, a debtor sought to discharge
her student loans just nine months after graduating and shortly before the due date of
her first required payment, citing unstable finances and an inability to secure
employment in the months following her graduation. On appeal, the district court
articulated the now-famous Brunner test, which uses a three-prong framework to
evaluate whether a debtor has established an undue hardship. . . . Each of Brunners
three prongs must be satisfied in order to obtain a discharge. Applying the newly minted
test, the district court found the debtors alleged hardship to be lacking. The Second
Circuit affirmed and endorsed the Brunner test, paving the way for Brunner to become
the majority rule. Although the application of Brunner varies slightly by circuit, nine
circuits have formally adopted the test.

After Brunner was decided, Congress made four significant amendments to 523(a)(8)
that expanded the types of debt that were excepted from discharge. In 1990, Congress
expanded 523(a)(8) to apply to non-loan student debt and extended the
nondischargeability period for student loans from five to seven years. In 1998, the
nondischargeability period was made ubiquitous, excepting all student loans from
discharge regardless of their age. Lastly, Congress passed the Bankruptcy Abuse and
Consumer Protection Act of 2005 (BAPCPA), taking the unprecedented step of
expanding 523(a)(8) to encompass private student loans. Despite these fundamental
changes to 523(a)(8) over the last 25 years, the unaltered Brunner test continues to be
the nationwide lodestar in student loan discharge cases.

EIGHT CIRCUIT REJECTS THE BRUNNER TEST, FIRST CIRCUIT BAP CRITICIZES
ITS USE

Although the most acute criticisms of Brunner have come in recent decisions, the move
away from Brunner is not a new trend. The assault on its supremacy began in 2003,
when the Eighth Circuit decided Long v. Educational Credit Management Corp. (In re

Page 49 of 132
Long) [Cite as: Long, 8th Cir., 2003]. In Long, a single mother with serious mental
health ailments obtained a discharge of her student loans. On appeal, the Eighth Circuit
expressly refused to apply Brunner, stating that its application in lieu of a more flexible
test diminish[ed] the inherent discretion contained in 523(a)(8)(B). Instead of
forcing the debtor to climb the Brunner mountain, the Long court provided a more
lenient path, analyzing the totality of the circumstances . . . . Thus, a circuit split was
born.

Seven years later, the First Circuit BAP weighed in on the Brunner/Long circuit split in
Bronsdon v. Educational Credit Management Corp. (In re Bronsdon), 435 B.R. 791
(B.A.P. 1st Cir. 2010) [Cite as: Bronsdon, BAP 1st Cir., 2010]. In Bronsdon, a 64-year-
old woman with no disability or debilitating medical condition obtained discharge of
her student loans. Following an appeal of the debtors discharge, the BAP held that
Brunner takes the [undue hardship] test too far by forcing debtors to show
extraordinary circumstances that are not required by the Bankruptcy Code. Describing
Brunner as overkill, the BAP formally rejected the loanholders assertion that Brunner
controlled and instead applied the totality of the circumstances test a la Long in
affirming the debtors discharge.

Long and Bronsdon chose judicial discretion over Brunners rigid requirements, as the
latter lacks a textual foundation in the Bankruptcy Code. By exposing Brunners flaws,
the decisions inspired other circuits to question its wisdom, causing the rebellion
against Brunner to grow.

THE SEVENTH CIRCUIT AND NINTH CIRCUIT BAP REVERSE COURSE TO ATTACK
BRUNNER

In April 2013, the judiciary handed down two more decisions that chart a trend away
from Brunner. The first was Krieger v. Educational Credit Management Corp., a Seventh
Circuit decision written by the influential Judge Frank Easterbrook. 713 F.3d 882 (7th
Cir. 2013) [Cite as: Krieger, 7th Cir., 2013]. Therein, a chronically unemployed debtor
could not pay her student loans while caring for her elderly mother and sought
discharge. On appeal to the Seventh Circuit, the loanholder argued that the debtor failed
to satisfy Brunners good-faith prong because she was unwilling to commit to an
income-based repayment plan.

Referring to the language of Brunner as a judicial gloss over the text of 523(a)(8),
Judge Easterbrook cautioned against any judicial interpretation that supersedes the
statute itself. He also explained that withholding discharge based on a debtors
unwillingness to agree to future income-based repayment necessarily fails because it is
always possible to pay in the future should prospects improve. Noting that successive
cases adopting Brunner have turned an undue hardship standard into one requiring
an extraordinary showing of a certainty of hopelessness, Judge Easterbrook ruled in
favor of the debtor.

Meanwhile, a couple of thousand miles to the west, the Ninth Circuit BAP was preparing
to issue its decision in Roth v. Educational Credit Management Corp. (In re Roth), 490

Page 50 of 132
B.R. 908 (B.A.P. 9th Cir. 2013) [Cite as: Roth, BAP 9th Cir., 2013]. In Roth, a 64-year-
old debtor sought to discharge $95,000 of student loans incurred 15 years before, citing
physical and mental ailments. Despite a seemingly hopeless situation, the bankruptcy
court denied the discharge based on the debtors failure to renegotiate her loans or
participate in a repayment plan. On appeal, the BAP held that failure to negotiate or
accept an alternate payment plan is not dispositive of a finding of good faith. After
considering the debtors circumstances, the BAP remanded the case with instructions to
grant a discharge of the debtors student loans.

Despite the BAPs relaxation of Brunners good-faith prong, Roth will be remembered
for a concurring opinion written by Hon. Jim Pappas, who pointed out that 523(a)(8)
and student borrowing have changed since Brunner was decided in 1987. Roth v. Educ.
Credit Mgmt. Corp. (In re Roth), 490 B.R. 908, 923 (B.A.P. 9th Cir. 2013), J. Pappas
Concurring [Cite as: Roth, Pappas concurrence, BAP 9th Cir., 2013]. Congressional
amendments fundamentally changed 523(a)(8), yet Brunner persists unaltered.
Furthermore, todays student must borrow heavily to finance their futures due to the
mammoth costs of a modern education. Id. These changes have not only made
Brunners application overly harsh, but also impractical. Where courts in 1987 were
tasked with analyzing a debtors circumstances over a period of five years or less, courts
today must attempt to predict a debtors potential to repay a six-digit educational
obligation over his or her entire lifetime. Given these obstacles Judge Pappas labeled
Brunner a relic of times long gone.

The gravamen of Judge Pappass concurrence is that the test was developed in 1987 to
address Marie Brunner, who sought the discharge of $9,000 in loans after nine months,
is inapposite when applied to Janet Roth, who, in 2013, sought the discharge of $95,000
in loans after 15 years. Urging the circuit to provide judges with more discretion, Judge
Pappas argued that Congress . . . presumably intended that bankruptcy courts have the
flexibility to make fact-based decisions in individual cases, and concluded by
requesting the Ninth Circuit to join with the Eighth Circuit in writing a poison-pen letter
to Brunner.

The Seventh Circuit and Ninth Circuit BAPs recent reversals suggest that the stagnant
reliance on Brunner is ebbing. A wave of bankruptcy cases citing Krieger and Roth is
developing, with courts in the rogue circuits already welcoming the modern analysis.
Even courts in circuits where Brunner is unquestioned are taking notice, acknowledging
the new dissatisfaction with the Brunner standard. Ward v. United States Dept of
Educ. (In re Ward), 2013 Bankr. LEXIS 3260 at *14-15 (Bankr. E.D.N.C. 2013) [Cite as:
Ward, BR E.D.N.C., 2013]. Although still bound to Brunner by Eleventh Circuit
precedent, one bankruptcy court admitted that there is merit to the argument that the
rigors of the Brunner test are no longer appropriate to curb borrower abuse. Wolfe v.
United States Dept of Educ. (In re Wolfe), 2013 Bankr. LEXIS 4200 at *12 (Bankr. M.D.
Fla. 2013) [Cite as: Wolfe, BR M.D. Fla., 2013]. Given this initial reaction, more courts
are likely to follow the trend set by Krieger and Roth.

Page 51 of 132
 Kathleen Day, Bankruptcy Bill Passes; Bush Expected to Sign, Washington
Post (Apr. 15, 2005)

[Cite as: Day, Bill Passes, 2005]

The House gave final passage yesterday to legislation intended to make it harder for
consumers to wipe out debt through bankruptcy, clearing the way for President Bush to
sign the bill into law as he has promised to do.

Lawmakers voted 302 to 126 for the bill, which is identical to a measure the Senate
passed last month. It would make the most significant changes to bankruptcy law since
1978. Its passage by Congress is a victory for executives in the credit card, retail and
auto financing industries who have pushed it for nearly a decade. They argue that the
changes are necessary to weed out abusers of the system who use Chapter 7 bankruptcy
protection to shirk debt they can afford to pay.

This bill will help restore responsibility and integrity to the bankruptcy system by
cracking down on fraudulent, abusive, and opportunistic bankruptcy claims, said
House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.).

Sen. Charles E. Grassley (R-Iowa), the chief sponsor of the bill, said the bill would
preserve two key principles: Those able to pay some of their debts would have to do so,
and those who need a fresh start would still be able to extinguish their debt through
bankruptcy.

Consumer advocacy groups and many Democrats, who fought the legislation, disagree,
arguing that lenders liberal credit policies and aggressive sales practices have been
equally responsible for putting many Americans over their heads in debt. They say the
new legislation would be too harsh on individuals driven into debt by job loss, sickness,
divorce or military duty. That is especially unfair, they say, because the bill would
preserve loopholes that enable wealthy individuals who file for bankruptcy to shield
unlimited amounts of money in complex trusts and in multimillion-dollar homes in
states including Texas and Florida.

The big winner under the new law will be credit card issuers, whose reckless and
abusive lending practices have driven many Americans to the brink of bankruptcy, said
Travis B. Plunkett, lobbyist for the nonprofit Consumer Federation of America. Now
that Americans in bankruptcy will have to pay more back to creditors, they have a right
to expect that credit card companies will lower their interest rates and fees. We will be
watching credit card companies closely to see if they will become more responsible
corporate citizens in return for this unprecedented gift from Congress.

Sensenbrenner, Grassley and other proponents estimate that about 100,000 debtors of
the 1 million a year who now file Chapter 7 bankruptcy could repay more than the
current system requires. Opponents say the number is closer to 30,000 but that, in any
case, the new legislation does little to weed out abuse. Instead, they say, it adds red tape

Page 52 of 132
to the process and makes it more expensive by requiring debtors to seek counseling
before filing for bankruptcy.

The legislation will become law six months after Bush signs it, which he must do within
10 days or it becomes law automatically.

The central feature of the new bill is that it would take away much of the discretion
bankruptcy judges have in deciding who is eligible to wipe out substantial portions of
debt by filing under Chapter 7 and who should be forced into filing for Chapter 13
bankruptcy, which requires some repayment of obligations over several years. Instead it
would require judges to calculate eligibility by applying a formula, based on income and
expenses, to would-be filers whose annual income is above the median in the region in
which they live. Those who are required to file under Chapter 13 would have to make
repayment for five years. Under current law, those payments cease after three years,
even if the debt is not fully repaid.

It also would make consumers who file for bankruptcy wait two to four years longer
before they can file again.

. . . Both sides have waged a polarized war of words for years, with neither side
conceding that the bill might not prove as beneficial as proponents say or as onerous as
critics contend. Privately, however, some lobbyists for the bill say it has been so watered
down from what industry initially proposed years ago that its passage is not a complete
triumph for business. The lobbyists spoke only on the condition that they not be named
because of concerns about damaging relations with their clients.

Some of these lobbyists say it is possible that the bill may make it easier for individuals
to cheat the system: Imposing eligibility tests for bankruptcy that are less flexible than
those under current law would provide individuals who want to manipulate the system a
road map of what they need to do. They say it would tell manipulators what, when and
under what terms they can buy and keep items during bankruptcywhether it is new
cars or fancy stereos.

Lobbyists and others who tracked the bill say the biggest winner under the new law
would not be the credit card industry but rather automobile manufacturers, which often
provide financing for the cars they sell. The new legislation would put car companies
ahead of most other creditors in line for payment.

But others focused on the broader changes that the bill would create. The essential
philosophical and political divide over the bankruptcy bill boils down to whether you see
filing for bankruptcy as a right or a privilege, said John D. McMickle, a lawyer who was
formerly the bankruptcy lawyer for the Senate Judiciary Committee. The new law
makes bankruptcy a privilege reserved only for people who can prove they cant repay
their debts.

The bill has been passed several times by both the Senate and House in the past three
sessions of Congress but never made it into law. In one case, President Bill Clinton

Page 53 of 132
vetoed it as unfair to consumers. Despite setbacks, the industry continued to lobby hard
for the bill. The banking, credit card and retail industries gave more than $56 million to
political parties and candidates in the 2004 elections, most of it going to Republicans,
according to the Center for Responsive Politics, a nonpartisan, nonprofit research group
that tracks political contributions.

Yesterday, lawmakers, including Grassley, said they thought the long fight was worth it.
This demonstrates that when youre right, youll win out, he said.

Senate Majority Leader Bill Frist (R-Tenn.) said the style, tone and speed with which
the Republican-controlled Congress passed the bankruptcy legislation will be a hallmark
of legislation in the months ahead.

Page 54 of 132
 Bankruptcy Abuse Prevention and Consumer Protection Act of 2005:
Report of the Committee on the Judiciary House of Representatives to
Accompany S. 256. 109th Congress. Rept 109-31

[Cite as: House Report, 109th Cong., 2005]

Representing the most comprehensive set of reforms in more than 25 years, S. 256s
consumer bankruptcy provisions respond to several factors. First, the recent escalation
of consumer bankruptcy filings does not appear to be just a temporary event, but part of
a generally consistent upward trend. In 1998, for example, bankruptcy filings exceeded
one million for the first time in our nations history. Over the past decade, the number of
bankruptcy filings has nearly doubled to more than 1.6 million cases filed in fiscal year
2004. As a result, there is a growing perception that bankruptcy relief may be too readily
available and is sometimes used as a first resort, rather than a last resort. Despite the
view of opponents of bankruptcy reform that abuse in the system is not widespread and
that most bankruptcy filings result from causes beyond debtors control, such as family
illness, job loss or disruption, or divorce, the Committee concluded that reforms were
nevertheless necessary.

Second, there are significant losses asserted to be associated with bankruptcy filings. As
one witness explained during the Senate Judiciary Committees hearing on S. 256 earlier
this year:

Like all other business expenses, when creditors are unable to collect debts
because of bankruptcy, some of those losses are inevitably passed on to
responsible Americans who live up to their financial obligations. Every
phone bill, electric bill, mortgage, furniture purchase, medical bill, and car
loan contains an implicit bankruptcy tax that the rest of us pay to
subsidize those who do not pay their bills. Exactly how much of these
bankruptcy losses is passed on from lenders to consumer borrowers is
unclear, but economics tells us that at least some of it is. We all pay for
bankruptcy abuse in higher down payments, higher interest rates, and
higher costs for goods and services.

According to some analyses, the increase in consumer bankruptcy filings has adverse
financial consequences for our nations economy. For instance, it was estimated that in
1997 alone more than $44 billion of debt was discharged by debtors who filed for
bankruptcy relief, a figure when amortized on a yearly basis amounts to a loss of at least
$110 million every day. These losses, according to one estimate, translate into a $400
annual tax on every household in our nation. In 2003, the Nilson Report (a credit
industry newsletter) announced that [credit card issuers] lost $18.9 billion in 2002
from consumer bankruptcy filings, an increase of 15.1 percent over the prior year.

A third factor motivating comprehensive reform is that the present bankruptcy system
has loopholes and incentives that allow andsometimeseven encourage opportunistic
personal filings and abuse. A civil enforcement initiative undertaken in 2002 by the
United States Trustee Program (a component of the Justice Department charged with

Page 55 of 132
administrative oversight of bankruptcy cases) has consistently identified such
problems as debtor misconduct and abuse, misconduct by attorneys and other
professionals, problems associated with bankruptcy petition preparers, and instances
where a debtors discharge should be challenged. According to the United States
Trustee Program, Abuse of the system is more widespread than many would have
estimated. Such abuse ultimately hurts consumers as well as creditors.

A fourth factor relates to the fact that some bankruptcy debtors are able to repay a
significant portion of their debts, according to several studies. Current law, however, has
no clear mandate requiring these debtors to repay their debts. Accordingly, [w]hile
there is a universal agreement among the courts that an individual debtors ability to
repay his or her debts from future earnings is, at the very least, a factor in determining
whether substantial abuse would occur in a chapter 7 case, there are differences among
the courts as to the extent to which they rely on a debtors ability to repay.

Page 56 of 132
 Alexei Alexandrov & Dali Jimnez, Lessons from Bankruptcy Reform in
the Private Student Loan Market, 11 Harv. L. & Poly Rev. 175 (2017)

[Cite as: Alexandrov & Jimnez, Lessons, 2017]

. . . This article . . . explores the effects of [2005 Bankruptcy Abuse Prevention and
Consumer Protection Act (BAPCPA)] in the private student loan market. Overall, our
findings (with all the caveats below) suggest that bankruptcy reform failed miserably at
helping students. We make two proposals for reform in light of our findings.

. . . While the majority of student loan debt was issued or is insured by the federal
government, a sizable fraction (about ten percent of outstanding debt) is in the form of
private student loansthat is, loans issued by financial firms without any government
backing. Pricing on these loans is similar to credit cards (i.e., the interest rate is variable
and depends on the borrowers creditworthiness). For undergraduate students
especially, these loans today typically require a co-borrower who will be legally bound to
repay if the student borrower does not. These loans also have few or no protections for
borrowers (or co-borrowers) who are in financial distress, leading some to argue these
loans are one of the riskiest, most expensive ways to pay for college.

The concept of a fresh start for a bankrupt is a significant one. If a debtor is eligible to
seek bankruptcy protection, she will ordinarily have all of her debts extinguished
(discharged) when she finishes the process. There are a handful of debts that are
nondischargeable, however. In general, nondischargeability is an extraordinary rule,
often held out for extraordinary debts (such as, for example, an intentional tort-feasors
debt for a damages or restitution award to her victim). As examples: credit card debts,
medical debts, tort liabilities, mortgage and auto deficiencies, and old tax debts are all
automatically dischargeable in bankruptcy.

Since 1976, federal student loans have enjoyed presumptive nondischargeability in

bankruptcy. That is, they are nondischargeable unless the debtor files a federal lawsuit
and convinces the bankruptcy court that it should discharge her loans. According to all
the available research, very few students are able to clear this high hurdle, making
student loans effectively nondischargeable. In 2005, Congress lumped private and
federal loans together and decided that borrowers of both should have almost no chance
of discharging their educational loans, no matter who made them. Before BAPCPA,
student loans issued by a private financial institution with no guarantee or backing from
any government were automatically dischargeable in bankruptcy. After BAPCPA became
effective, in October 2005, all private loans (no matter when issued) became
presumptively and effectively nondischargeable in bankruptcy.

The rationale for BAPCPAs special treatment of private student loans (PSLs) . . . [was
that the] law would lower the cost of private loans and that more students would choose
to attend college due to the lower costs.

. . . Using a novel loan-level administrative dataset from the Consumer Financial

Protection Bureau and econometric techniques, we quantify [BAPCPAs effects on prices

Page 57 of 132
and demand]. First, we show that BAPCPA did not have a significant effect on the price
of loans for the lowest credit score individuals relative to individuals with higher credit
scores. In other words, students became effectively unable to discharge their loans in
bankruptcy . . . but did not experience a compensating decrease in price . . . . Second, we
do see an increase in loan volumes, but [based on our observations], we do not attribute
this change in originations to a price effect . . . . It is thus easy to argue that BAPCPA was
not very helpful to students: they lost the ability to discharge their private student loans,
but received no discount in return.

. . . The effects of being able to discharge a debt on future outcomes of the borrower are
hard to measure empirically. The effects of not being able to discharge a particular kind
of debt are also hard to measure. However, in the broader context of filing Chapter 13
bankruptcy, two recent studies show that being able to discharge debt in bankruptcy has
enormous positive effects. . . . This research suggests that the inability to discharge
private student loans could be a significant cost for students and their co-borrowers.

Troublingly, this cost is one that affects a growing number of students and a large
proportion of already-vulnerable individuals. A recent study estimated that nineteen
percent of students at a four-year college or university who graduated with debt had
some PSLs. The average private loan debt load as of 2012 was $13,600 per student. In
the meantime, default rates have spiked significantly since the financial crisis of 2008.
As of 2011, [c]umulative defaults on private student loans exceed $8 billion, and
represent over 850,000 distinct loans.

Also alarming: poor and minority students are disproportionately affected by our system
of student loans. Minority students are more likely to enroll in for-profit schools, borrow
more than their white counterparts for the same degrees, more likely to fail to graduate,
and more likely to default on student loans in general. Research also suggests that while
white college graduates seem to enjoy an economic cushion from their college
education, African American college graduates do not. Unlike their white counterparts,
African American college graduates are equally likely to file for bankruptcy as African
Americans without a college diploma. Most recently, researchers at the Brookings
Institution found that [f]our years after graduation, black graduates have nearly
$25,000 more student loan debt than white graduates: $52,726 on average, compared
to $28,006 for the typical white graduate.

Given these findings, we offer some recommendations to reform how student loans are
treated in bankruptcy and to regulate private student loans. [Although we believe that]
PSLs should be automatically dischargeable in bankruptcy unless the bankruptcy judge
finds that the bankruptcy petition has been filed in bad faith[,] we recognize that rolling
back the protection PSL lenders obtained in 2005 may be a hard sell politically. A
number of bills have been proposed attempting to do just that and none have gained
much traction. Consequently, we propose an alternative. Given students inelastic
demand and the fact that PSL lenders are in a better position to know the true likelihood
of loan repayment, the Consumer Financial Protection Bureau should implement an
ability-to-repay rule similar to the one they have implemented in the mortgage markets.
In other words, private student loan lenders would incur liability to borrowers if they

Page 58 of 132
originated loans without verifying a borrowers ability to repay that loan. Because this
verification is a complex endeavor, we outline some of the features of PSLs that could be
packaged as a qualified PSL, a safe harbor to the ability-to-repay rule.

Page 59 of 132
Jason Iuliano, Student Loans and Surmountable Access-to-Justice Barriers,
68 Fla. L. Rev. 377 (2016)

[Cite as: Iuliano, Surmountable Barriers, 2016]

FINDINGS AND CONCLUSIONS FROM THE 2012 AMERICAN BANKRUPTCY LAW

JOURNAL STUDY

Student loans are unusual. Whereas the vast majority of debts are automatically
discharged in bankruptcy, student loans are not. Instead, they are dischargeable only if
the debtor can show-through an adversary proceeding-that repaying the loans would
inflict an undue hardship.

My 2012 article examined how bankruptcy judges apply the undue hardship standard. I
sought to test the veracity of the traditional narrative surrounding student loan
dischargesa narrative that maintains that it is all but impossible for people to
discharge their student loans in bankruptcy. The data showed that this view of the
undue hardship standard is not empirically supported. Several key findings led me to
that conclusion.

First . . . nearly 40% of debtors who attempted to discharge their student loans received
either a partial or full discharge. Second, debtors with attorneys fared no better than pro
se debtors. Third, judges applied the undue hardship standard in a relatively consistent
manner. And fourth, an astonishingly small number of student loan debtors ever seek a
discharge. More specifically, I calculated that, each year, more than 200,000 student
loan debtors file for bankruptcy, but only a few hundred of those ever file an adversary
proceeding to attempt to discharge their loans. This means that more than 99% of the
bankruptcy filers with student loans do not request a discharge from the court. That is a
startling statistic, and it is even more troubling given the fact that many of these debtors
who do not attempt to discharge their student loans are in worse financial positions
than those who were able to successfully discharge their student loans.

These findings led me to conclude that the criticisms directed at the undue hardship
standard are overstated. Although the standard is far from ideal, it is not nearly as
oppressive as commonly believed. The real issue is that the vast majority of people who
would satisfy the undue hardship standard never petition the courts for a discharge.
Ultimately, I recommended that consumer bankruptcy advocates identify bankruptcy
filers who would likely meet the undue hardship requirement and encourage them to
pursue discharges. Contrary to conventional wisdom, judges are willing to grant
discharges. The problem is that few people ever ask.

Page 60 of 132
 Richard Posner, The Bankruptcy Reform Act, The Becker-Posner Blog,
(Mar. 27, 2005)

[Cite as: Posner, Blog, 2005]

Congress is on the verge of passing and the President of signing a major overhaul of the
Bankruptcy Code. The new bankruptcy law, popularly termed the Bankruptcy Reform
Act, has engendered passionate debate inside and outside Congress. The criticisms of
the Act bespeak a failure to analyze it in economic terms. The Act is complex, but the
thrust is to make it more difficult for individuals to declare bankruptcy under Chapter 7
of the Bankruptcy Code. Under Chapter 7, the bankrupts assets, minus exempt assets
such as a home and work tools, are sold to repay creditors. When the bankrupt is an
individual rather than a corporation, his assets often are too limited to enable the
creditors to be paid in full what they are owed; often the creditors receive just a few
cents on the dollar. However much or little they recover, at the conclusion of the
bankruptcy proceeding the bankrupt (save in exceptional cases, as where the debt
consists of a fine, or of damages owed because of a fraud committed by the debtor)
receives a discharge, meaning that the creditors cannot go against him for the unpaid
balance of his debts. His debts are wiped out even if he has a high enough income to be
able to repay them in full over a period of years. An alternative procedure that
individuals (and their creditors) can avail themselves of is Chapter 13 bankruptcy:
instead of surrendering his nonexempt assets, the debtor agrees to make periodic
payments to his creditors for as long as five years after the bankruptcy. Although
Chapter 13 is attractive to some individuals, especially those who have substantial
assets, Chapter 7 is more attractive to individuals who have few nonexempt assets but
some income, and there are many such individuals. These individuals can run up huge
credit card debts for purchases that do not create durable assets (such as food, travel,
and entertainment), declare bankruptcy, wipe out their debts, and then start over.

The Bankruptcy Reform Act will force many debtors who have annual incomes in excess
of the median income in their state of residence to go the Chapter 13 route and thus
make periodic payments out of their income for a period of years. The Act also increases
the length of time that a bankrupt must wait, after receiving his discharge from his
existing debts, before he can declare bankruptcy again and wipe out a new round of
debts. The Act contains still other provisions also intended to make it more difficult for
individuals to wipe out their debts by declaring bankruptcy under Chapter 7. Critics
have derided the Act as mean-spirited and hard on the poor, but they overlook the most
important effect that the bill is likely to have, and that is to reduce interest rates. One
component of an interest rate is compensation for the risk of default. The higher that
risk, the higher the interest rate. This assumes of course that a creditor cannot, in the
event of default, collect the debt owed him quickly, fully, and with little expense. If
bankruptcy were very cheap and the typical individual bankrupt had assets sufficient to
cover his debts, or had no right to discharge his debts and could repay them, with
interest, out of future income, default would not impose a substantial cost on creditors
and so the risk of default would not have a substantial effect on interest rates. But
bankruptcy is costly and most individual bankrupts do not have assets sufficient to cover
their debts, yet under existing law they have a right to a discharge of their debts no

Page 61 of 132
matter how far short of repaying their creditors their assets fall. So default is costly and
this is bound to be reflected in interest rates. Note the irony of the critics complaint that
credit-card interest rates are exorbitant; the so-called exorbitance is, to an extent
anyway, an artifact of a bankruptcy law that by making bankruptcy inviting to credit-
card debtors increases the risk of default and therefore the interest rate. Notice
moreover the vicious cycle created by the present system. The greater the risk of default,
the higher interest rates are; but the higher interest rates are, the greater is the risk of
default, since interest rates represent a fixed cost to the debtor: if he loses his job and his
income plummets, he still owes whatever he borrowed when he was flush. Of course, an
alternative possibility is that the high rates will discourage borrowing; this is a
paternalistic goal of some opponents of the Act. But the high rate of personal
bankruptcies that the critics stress is evidence that the vicious cycle dominates the effect
of high interest rates in discouraging borrowing.

I conclude that the new Act, by increasing the rights of creditors in bankruptcy (for
remember that Chapter 13 enables a creditor to obtain repayment out of the debtors
post-bankruptcy income, not just out of what may be his very limited nonexempt assets
at the time of bankruptcy, as under Chapter 7), should reduce interest rates and thus
make borrowers better off. The most reckless borrowersthose most prone to file
repeated Chapter 7 bankruptcieswill be made worse off. But there will be fewer of
these, precisely because they will be worse off than under the existing system. If
bankruptcy is more costly, there will be less of it. Critics say that more than half of all
individual bankrupts are not reckless borrowers but rather are unfortunate people who
have been hit by unexpected medical expenses. But this ignores the fact that whether
one is forced into bankruptcy by a medical expense (or by an interruption of
employment as a result of a medical problem) depends on ones other borrowing. If one
is already borrowed to the hilt, an unexpected medical expense may indeed force one
over the edge. But knowing that medical expenses are a risk in our society, prudent
people avoid loading themselves to the hilt with nonmedical debt. At a more
fundamental level, one might ask why voluntary bankruptcy is ever permitted. It is easy
to understand involuntary bankruptcythat is, bankruptcy forced upon a debtor by his
creditors. Such bankruptcy overcomes the free-rider problem that would exist if
multiple creditors were allowed to race each other to be first to seize the assets of a
defaulting debtor, when the creditors as a whole might be better off with a more orderly
liquidation. But why should a debtor ever be permitted to write off his debts? One
answer is that, assuming people are risk averse, voluntary bankruptcy operates as a kind
of social insurance. One cannot buy private insurance against going broke (for then
people would indeed borrow recklessly), but even a prudent borrower could find himself
broke as a result of an unforeseeable streak of bad luck. However, the Bankruptcy
Reform Act does not eliminate voluntary bankruptcy. The social-insurance role is
fulfilled by Chapter 13 as well as by Chapter 7, since after five years of partial payments
the Chapter 13 bankrupt is entitled to a full discharge of the unpaid balance of his debts.
Behind the Bankruptcy Reform Act, as behind the Presidents proposal for social
security reform, is an ideology of giving nonwealthy people greater responsibility for
their own economic welfare, which entails subjecting them to additional financial risk.
Under the present system, the prudent and the imprudent consumer pay the same high
interest rates, assuming creditors cant readily determine which consumers are prudent

Page 62 of 132
and which are imprudent. By lowering interest rates on credit-card and other consumer
debt while at the same time discouraging default, the Bankruptcy Reform Act will
encourage consumers to exercise greater care in borrowingyet at the same time,
because interest rates will be lower, the Act will enable prudent consumers (who do not
face a high risk of bankruptcy) to borrow more and by doing so will increase their
consumption options. The Act will not redistribute wealth from the poor to the rich, but
from the imprudent borrower to the prudent borrower.

Page 63 of 132
Consumer Financial Protection Bureau & Department of Education, Private
Student Loans: Report to the Senate Committee on Banking, Housing, and
Urban Affairs, the Senate Committee on Health, Education, Labor, and
Pensions, the House of Representatives Committee on Financial Services,
and the House of Representatives Committee on Education and the
Workforce (Aug. 29, 2012)

[Cite as: CFPB Report, 2012]

American consumers owe more than $150 billion in outstanding private student loan
debt. While this amount is significantly less than the amount outstanding on student
loans guaranteed by the federal government, the private student loan (PSL) product is
an important component of higher education finance and does not appear to be well
understood by the public.

In this Report, the Consumer Financial Protection Bureau and the US Department of
Education seek to highlight key attributes of the private student loan marketplace, as
well as consumer protection issues which policymakers may wish to address.

. . . Richard Cordray, the Director of the CFPB, asks that Congress enhance the role of
schools in the private student loan origination process, examine the appropriateness of
the bankruptcy discharge standard, and modernize the regulatory framework to ensure
a competitive, level playing field where consumers fully understand their debt
obligations and lenders have appropriate data to make underwriting decisions.

Arne Duncan, the Secretary of Education, asks that Congress require institutions of
higher education and private education lenders work proactively to protect and inform
private student loan borrowers, work with the Department of Education and the CFPB
to determine how to afford greater flexibility and relief to private student loan
borrowers who are experiencing financial distress, and amend the definition of private
education loan to exclude other Federal education loans. Secretary Duncan also
recommends that the Department of Education and the CFPB work with Congress to
identify the necessary resources to provide a comprehensive picture of student
borrowing that is inclusive of both federal and private student loans.

[...]

BORROWERS HAVING DIFFICULTY WITH REPAYMENT HAVE FEW OPTIONS TO

CHANGE THEIR BEHAVIOR

Financial institution lenders have reported efforts to mitigate repayment difficulties that
varied over the last five years. The student loan programs offered in [federal student
loan programs] offer deferment or forbearance of repayment, income-based and
income-contingent repayment plans, public service debt forgiveness and methods to
cure default, such as rehabilitation and consolidation. In contrast, income-based or
income-contingent repayment has never been a feature of private loans and is not now
contemplated.

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Prior to the financial crisis of 2008, many lenders allowed twelve months of payment
forbearance in the case of economic or medical hardship. [Following the financial
crisis], the incidence of PSL forbearance dropped substantially: at the end of calendar
year 2007, 17.1% of loans outstanding were in forbearance while at the end of calendar
year 2011 3.0% of loans were in forbearance.

. . . To summarize, for the relatively high number of PSL borrowers currently having
difficulty with repayment, it is hard to avoid default and equally hard to escape it, as
compared to options available to federal loan borrowers.

[...]

PRIVATE STUDENT LOAN DEBT RECEIVES VERY DIFFERENT TREATMENT IN

BANKRUPTCY PROCEEDINGS COMPARED TO OTHER CONSUMER LOANS

Many private student loan borrowers entering the labor market in the wake of the recent
recession have faced significant challenges, and many have defaulted on their PSLs.
Bankruptcy discharge may be an essential protection against consumer injury that
might otherwise result when a consumer lacks the income or other means to manage
debt. However, that benefit generally does not apply to student loans. These loans are
virtually immune from discharge in bankruptcy.

. . . In 2005 the bankruptcy code was amended so that all loans made for a qualified
education expense became exempt from discharge in bankruptcy absent undue
hardship to the debtor and his/her dependents. There is a heavy burden to prove
undue hardship. This burden is mitigated for federal student loan borrowers through
various income-based repayment, forbearance, and deferral options authorized under
Title IV that provide some alternative to bankruptcy relief. As discussed above, there are
few similar repayment options for private student loans.

In contrast to student loans, the vast majority of consumer loans and other consumer
credit products are dischargeable in bankruptcy. This includes secured loans like
mortgages and auto loans, which are subject to repossession or foreclosure of the
financed asset and completely unsecured loans like credit cards . . . . The realm of non-
dischargeable debts is limited, and includes child support payments, alimony, debts
related to tax liens, claims arising out of wrongful conduct (like a judgment against a
drunk driver), and both federal and private student loans. With the exception of private
student loans, these debts have one of two primary characteristics, either they are owed
to the public or the creditor lacks discretion over entering into the debtor-creditor
relationship (or both). Federal student loans are owed to the government, and excluding
them from bankruptcy discharge could be a method of defending the federal fiscal
interest. The same rationale applies to tax liens. Child support payments are both an
involuntary relationship for the children and a means of a protecting the public fiscal
interest because the State is generally responsible for children who lack financial
support. Likewise, the victim of a drunk driver has no choice with regard to the debtor-
creditor relationship.

Page 65 of 132
There is little in the Congressional record surrounding the 2005 changes to the
Bankruptcy Act regarding the rationale for treating private student loans similarly to
federal student loans and differently from general consumer loans. Given this lack of
explicit legislative intent, the Agencies attempted to determine whether an economic
rationale for non-dischargeability of private student loans might be suggested by the
available data. The remainder of this Part examines data on bankruptcy, credit
availability, and loan pricing.

DESPITE THE CHALLENGE OF DISCHARGING PSLS IN BANKRUPTCY, MORE

STUDENTS ARE TURNING TO BANKRUPTCY FOR PROTECTION

In light of the $8.1 billion of Sample Lender Portfolio loans in default, it is clear that
there are a significant number of borrowers who are currently unable to repay PSLs and
have limited repayment or bankruptcy discharge options. For these borrowers, the PSL
obligation will remain with them indefinitely. Those who continue to be unable to make
payments face the potential of an ongoing negative credit history which can, in turn,
impede their ability to obtain employment, rent an apartment, purchase insurance, and,
of course, access mortgage financing and other credit.

Some borrowers have elected to file for bankruptcy, even though they cannot discharge
their student loan debt in the process.

After observing the frequent use of incomplete bankruptcy protection, the Agencies
sought to determine whether the market benefits of the 2005 changes to the bankruptcy
standard outweighed the harm to defaulted borrowers. We looked first for reduction in
price or increased access for the less creditworthy as evidence that the market reacted to
the 2005 change in the law in a way that would benefit consumers generally. The data
we have does not show that changes to the bankruptcy standard in 2005 directly led to
lower prices or wider access to credit. The analysis did not detect any general downward
movement of price immediately after the change to the law.

. . . The Agencies also examined the discussion surrounding the moral hazard dimension
that is a component of bankruptcy policy. The initial decision to make federal student
loans virtually immune to bankruptcy discharge was based, in part, upon the perceived
moral hazard inherent in encouraging a student to use credit to purchase a valuable
intellectual asset which cannot be repossessed. Supporters of special bankruptcy
protection claimed that students could discharge the financial obligation through
bankruptcy after graduation, while reaping the financial benefits of the intellectual asset
for a lifetime. Proponents of the amendments to exempt federal loans from discharge
stated that to remove them would mean that the Bankruptcy Code would then be
almost specifically designed to encourage fraud. They also stated that there was a basis
for separating educational loans from other types of debt because the lack of collateral
necessary for the educational loan is an indicator that educational loans do differ
substantially from other forms of debt [and that] these bankruptcies could easily destroy
the federal student loan programs, a harm that would be at least as great as the fraud-
type problem.

Page 66 of 132
Congress, through the Government Accountability Office (GAO), has researched the
impact of bankruptcy on the federal student loan program. In 1976, a GAO study was
commissioned to test the need for the law change. The study did not report a large
number of student loan bankruptcies. In 1997, a review by the Congressionally-
mandated National Bankruptcy Review Commission of 1997 did not find any systematic
abuse of the bankruptcy system for student loan discharge. In reviewing a 1991 GAO
study, the National Bankruptcy Review Commission found that only a fraction of 1% of
all matured student loans were discharged in bankruptcy and that bankruptcy filings
constituted only three to four percent of student-loan losses, a rate that compared
favorably to the consumer credit industry overall. These findings from the last century
may not, however, reflect current economic conditions. The elevated level of private
student loans currently in bankruptcy . . . and the continuing aftereffects of the financial
crisis and subsequent recession may represent a hitherto unknown potential impact of
bankruptcy discharge on the student loan market. These macroeconomic effects,
however, may not be permanent and thus may not significantly change the moral
calculus of a future student considering the use of PSLs over an entire educational
career.

The potential for moral hazard is different, however, for co-signed loans, which now
make up more than 90% of PSLs made to finance undergraduate education. In contrast
to the pre-credit student, the co-signer asks the lender to extend credit based on the
proven income, assets, employment, and payment history of the co-signer. Both lender
and co-signer expect that the co-signer can service the debt. That is the purpose of a
creditworthy co-signer. In this context, the argument for non-dischargeability as a
control for moral hazard is unclear. The creditworthy co-signer has a lot to lose. Indeed,
there is an argument that a co-signer is positioned like any other consumer borrower.
The lender and borrower reasonably calculate that the borrower can repay the loan. If
they miscalculate, both lose, and a bankruptcy discharge may be the ultimate (and
appropriate) result. Finally, the co-signer who is a parent may provide a control on the
theoretical moral hazard affecting the student, to the extent that parents have influence
over financial behaviors of their children.

Thus, the theoretical moral hazard risks related to lending to a pre-creditworthy student
and a creditworthy co-signer are very different, so a policy choice is further complicated
when considering a loan to a combination of the two.

Page 67 of 132
Rooney Columbus, American Enterprise Institute, The Student Loan Crisis
Is Really a Crisis of Educational Value (Nov. 17, 2015)

[Cite as: Columbus, Crisis, 2015]

Higher education has had a tough go-around this fall. A slew of new data sheds fresh
light on the extent to which students are struggling to find success in the labor market
and repay their loans. But before policymakers rush and use this research to justify
policies that subsidize student debt relief, perhaps they should examine how and why
higher education institutions are failing their students in the first place.

In September, a new paper from economists Adam Looney and Constantine Yannelis
linked student loan records with tax returns to document how borrowers have fared
after leaving college. What they found wasnt pretty: Among borrowers who entered
repayment in 2009, 28 percent defaulted within five years. Students attending certain
types of schools have more trouble than others: Borrowers in that cohort who attended
for-profit institutions defaulted at a striking 47 percent rate, while 38 percent of
community-college borrowersfor whom tuition is relatively lowmet the same fate.
Worse yet, some students balances are actually increasing57 percent of borrowers
who entered repayment in 2012 owed more than they started with after two years,
meaning theyre accumulating interest faster than theyre paying down their loans.

A few days later, the Department of Education released a refurbished version of the
College Scorecard, a consumer information tool that provides data on schools
participating in the federal aid program. As part of this relaunch, the department gifted
researchers with a trove of previously unavailable data that also paints a less-than-
flattering picture. At 1,840 institutions, for instance, over half of federal student loan
borrowers have not paid down a single loan dollar after three years. An Inside Higher Ed
analysis examined repayment within a seven-year window, uncovering 347 schools
unable to pass the low 50-percent bar.

It may be tempting to view these reports as more evidence of a student debt crisis that
a generation is being crushed under the weight of student debt. And policymakers may
be tempted to use these data as justification for more short-term debt relief like interest
rate reductions and loan refinancing. But while the new data reveal a crisis of sorts, its
not high debt balances that are the problem. Rather, its a higher education system
failing to adequately prepare millions of its students for life after graduation

The real crisis lies in the lackluster performance of the American higher education
system. The new College Scorecard data show that 1,355 four-year colleges graduated
less than half of their students within six years. Thats a problem because going to
college and not finishing doesnt do one much good; nowadays, the average college
drop-out earns roughly that of a high school graduate. Even people who graduate are
not guaranteed to do much better: A report accompanying the release of the College
Scorecard data found that at 53 percent of institutions, more than half of alumni are
not even earning more than a typical high school graduate within six years after starting

Page 68 of 132
at the school. Nearly 27 percent of schools with available data have median graduate
earnings of less than $25,000 10 years out. This is a sector rife with shoddy institutions.

These data suggest that tuition prices are only part of the problem. What we have here is
a failure of federal policy to ensure educational quality. The federal government
supports far too many substandard programs. Too few schools ever lose access to federal
aid due to poor performancejust 11 colleges have had their federal funding revoked for
high default rates in the past decade.

Whats more, under federal rules any student can borrow to attend any accredited
institution at any price, no matter the quality of the program. And even with the
revamped College Scorecard, prospective students lack large amounts of meaningful
data on postsecondary costs and outcomes to steer them away from bad choices. Absent
reform, students will continue to enroll in programs they will not complete or whose
cost far surpasses the return.

So how do we proceed? The first step is to define the problem were trying to solve. If we
define the problem as student debt, that leads to one set of policiesfree college or loan
refinancingthat tend to overlook the sectors fundamental quality problems. Policies
targeted at debt alone are shortsighted, address only the symptoms of a larger problem
and may even encourage further tuition inflation.

But if we define this as a crisis of valuethe quality of the education students get for the
time and money they investthen we must pursue a policy agenda that changes
incentives. Giving colleges skin in the game and providing more and better data
around postsecondary outcomes could incentivize schools to improve their performance
and help consumers avoid low-value programs. (More stringent accountability for poor-
performing colleges wouldnt hurt either.) Schools then would have greater stake in
their students success, subsequently helping students avoid dire financial hardship
altogether.

Page 69 of 132
 523. Exceptions to Discharge

[Cite as: 11 U.S.C. 523(a)(8)]

(a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does
not discharge an individual debtor from any debt
[]
(8) unless excepting such debt from discharge under this paragraph would impose an
undue hardship on the debtor and the debtors dependents, for
(A)(i) an educational benefit overpayment or loan made, insured, or guaranteed by a
governmental unit, or made under any program funded in whole or in part by a
governmental unit or nonprofit institution; or
(ii) an obligation to repay funds received as an educational benefit, scholarship, or
stipend; or
(B) any other educational loan that is a qualified education loan,1 as defined in section
221(d)(1) of the Internal Revenue Code of 1986, incurred by a debtor who is an
individual;

1 In your memo, you can assume that Dougs loans are all qualified education loans.

Page 70 of 132
 [Cite as: Circuits Map]

Page 71 of 132
VI. CITATION EXERCISE
Columbia Law Review applicants must submit a completed Citation Exercise that follows the
General Formatting Instructions (page 10) and the specific instructions below. Please note that
this section will likely take a few hours or more to complete.

Citation Exercise Instructions

General
Submit your Citation Exercise as a separate document from the Writing Exercise.
Use only the provided Bluebook citation rules and included sources, all of which may
deviate from any published or unpublished rules and material. All citations must contain
only information derived from this packet.
For the purposes of the Citation Exercise, should, usually, commonly, if possible,
and other like terms in the Bluebook citation rules are interpreted as directing that you
must follow the citation preference.
No explanations of answers are permitted.
There is no word limitation for the Citation Exercise.
Note that not all pages from one source are included and/or are consecutive. Additionally,
some pages in this packet show more than one page from the source.

Formatting
Your answer must consist of a list of numbers and answers only; see below:
1. [Answer]
2. [Answer]
3. [Answer]
...
Etc.
Do not use SMALL CAPITALIZATION or ALL CAPITALIZATION.
Do not use italicization unless you are including the title of a work that is partially
italicized.
Do not use id., supra, infra, or other short citation formats.
Do not use introductory signals, such as see, cf., etc.
Do use full titles even where shorter ones may be applicable.

Guidance on Relevant Rules

The Citation Exercise primarily focuses on sources governed by the Bluebook Rule 16
(Periodic Materials) and Rule 21.4 (Treaties and Other International Agreements). They also
require consultation with Rule 1, Rule 2, Rule 3, Rule 6, Rule 8, Rule 15, T4, T6, T10, T12, T13,
and T16. You may also reference a dictionary of the English language if this is helpful. You and
your classmates are not expected to have experience with these rules, so please do not be
concerned or discouraged if this is your first time navigating them.

Page 72 of 132
Citation Exercise Questions
You have almost persuaded your favorite 1L professor to hire you as a Research Assistant. You
suspect, however, that you will need to win over her current Research Assistant in order to get the
job. To get on his good side, you have offered to help him formulate some missing citations for the
professors latest Article. Please do so in conformity with the Citation Exercise Instructions above
and the excerpted Bluebook citation rules and sources below.

The current Research Assistant left you the following notes:

1. Cite to the table in Source A.

2. Cite to the existence of Source B.

3. Cite to Part IV of Source C.

4. Cite to the article by Ian Sample in Source D.

5. Cite to the existence of Source E.

6. Cite to footnote 80 of Source F.

7. Cite to the existence of Source G.

8. Cite to the first sentence in the body of Source H.

9. Cite to the existence of Source I.

10. Cite to the existence of Source J.

11. Cite to Article I of Source K.

12. Cite to the newspaper article with the title A recount benefits all in Source L.

13. Cite to the following quotation in Source M: Just as statutory structure plays a
gatekeeping role in the operation of Whartons rule, it should play a similar role in the
operation of the Gebardi principle, as they both stand as narrow exceptions to general
federal criminal law.

14. Cite to the existence of Source N.

15. Cite to the second to last paragraph on page 2 of Source O.

16. Cite to the existence of Source P.

17. Cite to the existence of Source Q.

18. Cite to the definition of fish in Source R.

19. Cite to the section titled Virtual Net Energy Metering in Source S.

20. Cite to the existence of Source T.

Page 73 of 132
Citation Exercise Sources
1.1 Citation Sentences and Clauses in Law Reviews
(b)(i) Citation sentences.
A citation sentence starts with a capital letter and ends with a period.

2.2 Typeface Conventions for Textual Material

(a) Main text.
The main text of law review pieces does not contain citations and uses only ordinary roman and
italics. Most material appears in ordinary roman type. Only the following are italicized:
(i) Case names.
Italicize case names, including the v.:
Missouri ex rel. Gaines v. Canada

(ii) Titles of publications, speeches, or articles.

Thus:
The library has a copy of The Path of the Law, which was published in the Harvard Law
Review; a complete set of the Federal Supplement; and todays Wall Street Journal. It
does not have a copy of Hearings on S. 776 or Alaska Statutes.

(iii) Style.
Italicize words for emphasis or other stylistic purposes. Also italicize words that are emphasized
in quoted matter.
3.2 Pages, Footnotes, Endnotes, and Graphical Materials
(a) Pages.
Give the page number or numbers before the date parenthetical, without any introductory
abbreviation.
ARTHUR E. SUTHERLAND, CONSTITUTIONALISM IN AMERICA 45 (1965).
H.R. REP. NO. 82-353, at 45 (1951).
Use at if the page number may be confused with another part of the citation; use a comma to set
off at. Use this form, for example, when the title of a work ends with an Arabic numeral or when
the work uses Roman numerals for pagination:
BIOGRAPHICAL DIRECTORY OF THE GOVERNORS OF THE UNITED STATES 19781983, at 257
(Robert Sobel & John W. Raimo eds., 1983).
Thomas I. Emerson, Foreword to CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF
WORKING WOMEN, at vii, ix (1979).

If an article, case, or other source within a larger source is not separately paginated, cite the page
on which the item begins:
Bernard L. Diamond, The Psychiatric Prediction of Dangerousness, 123 U. PA. L. REV. 439
(1974).

Page 74 of 132
 United States v. Bruno, 144 F. Supp. 593 (N.D. Ill. 1955).
Government Employees Training Act, Pub. L. No. 85-507, 72 Stat. 327 (1958).

When referring to specific material within such a source, include both the page on which the
source begins and the page on which the specific material appears (a pincite), separated by a
comma:
Matthew Roskoski, Note, A Case-by-Case Approach to Pleading Scienter Under the
Private Securities Litigation Reform Act of 1995, 97 MICH. L. REV. 2265, 227175 (1999).
CATHARINE A. MACKINNON, On Exceptionality: Women as Women in Law, in FEMINISM
UNMODIFIED 70, 7677 (1987).

When referring specifically to material on the first page of a source, repeat the page number:
Christina M. Fernndez, Note, Beyond Marvin: A Proposal for Quasi-Spousal Support,
30 STAN. L. REV. 359, 359 (1978).

When citing material that spans more than one page, give the inclusive page numbers, separated
by an en dash () or hyphen (-). Always retain the last two digits, but drop other repetitious
digits:
Edward L. Rubin, Note, Fairness, Flexibility, and the Waiver of Remedial Rights by
Contract, 87 YALE L.J. 1057, 106569 (1978).

Cite nonconsecutive pages by giving the individual page numbers separated by commas:
Kleppe v. New Mexico, 426 U.S. 529, 531, 546 (1976).

(b) Footnotes.
To cite a footnote, give the page on which the footnote appears, n., and the footnote number,
with no space between n. and the number:
Akhil Reed Amar, The Two-Tiered Structure of the Judiciary Act of 1789, 138 U. PA. L.
REV. 1499, 1525 n.80 (1990).

To cite a footnote that spans more than one page, cite only the page on which the footnote begins,
n., and the footnote number:
Akhil Reed Amar, The Two-Tiered Structure of the Judiciary Act of 1789, 138 U. PA. L.
REV. 1499, 1560 n.222 (1990).

When referring only to specific pages of a footnote that spans more than one page, cite only the
specific pages, rather than the page on which the footnote begins:
Akhil Reed Amar, The Two-Tiered Structure of the Judiciary Act of 1789, 138 U. PA. L.
REV. 1499, 156162 n.222 (1990).

To cite both a range of pages and also a single footnote that appears within the page range, cite
the page range followed by a comma and then cite the footnote in the typical manner:
Akhil Reed Amar, The Two-Tiered Structure of the Judiciary Act of 1789, 138 U. PA. L.
REV 1499, 152324, 1524 n.75 (1990).

Cite multiple footnotes (or endnotes) by using nn.:

Page 75 of 132
 141 nn.18086

Treat nonconsecutive footnotes (or endnotes) like nonconsecutive pages, but (except for internal
cross-references) substitute an ampersand for the comma separating two footnotes that appear on
the same page or the final comma in a list of three or more footnotes that appear on the same
page:
350 n.12, 355 n.18
291 nn.14 & 18, 316 nn.4, 6 & 89

To refer to both a page in the text and a footnote that begins on that page, use an ampersand
between the page and the note number:
Irene Merker Rosenberg, Winship Redux: 1970 to 1990, 69 TEX. L. REV. 109, 123 & n.90
(1990).

(c) Endnotes.
To cite an endnote, give the page on which the endnote appears (not the page on which the call
number appears), n., and the endnote number, with no space between n. and the number:
JOHN HART ELY, DEMOCRACY AND DISTRUST 215 n.85 (1980).

(d) Graphical materials.

When citing tables and figures, give the page number on which the graphical material appears
and the designation, if any, provided in the source, with no space between the abbreviation and
the number.
Kevin M. Clermont & Theodore Eisenberg, Commentary, Xenophilia in American Courts,
109 HARV. L. Rev. 1120, 1131 tbl.2 (1996).
Jennifer Gerarda Brown & Ian Ayres, Economic Rationales for Mediation, 80 VA. L. REV.
323, 397 fig.6 (1994).

For abbreviations, see table T16.

6 Abbreviations, Numerals, and Symbols

6.1 Abbreviations
Abbreviations not listed in this book should be avoided unless substantial space will be saved and
the resulting abbreviation is unambiguous.
Note that in legal writing the same word may be abbreviated differently for different uses:
F. and Fed.
app. and Appx

(a) Spacing.
In abbreviations of periodical names (see table T13), close up all adjacent single capitals except
when one or more of the capitals refers to the name of an institutional entity, in which case set the
capital or capitals referring to the entity off from other adjacent single capitals with a space. Thus:
GEO. L.J.
B.C. L. REV.
N.Y.U. L. REV.
S. ILL. U. L.J.

Page 76 of 132
(b) Periods.
Generally, every abbreviation should be followed by a period, except those in which the last letter
of the original word is set off from the rest of the abbreviation by an apostrophe. Thus:
Ave.
Bldg.
But:
Assn
Dept

6.2 Numerals and Symbols

(a) Numerals.
In general, spell out the numbers zero to ninety-nine in text and in footnotes; for larger numbers,
use numerals. This general rule is subject, however, to the following exceptions:
(i) Any number that begins a sentence must be spelled out.
(ii) Hundred, thousand, and similar round numbers may be spelled out, if done so
consistently.
(iii) When a series includes numbers both less than 100 and greater than or equal to 100,
numerals should be used for the entire series:
The plaintiffs gained, respectively, 117, 6, and 28 pounds.

(iv) Numerals should be used if the number includes a decimal point.

(v) Where material repeatedly refers to percentages or dollar amounts, numerals should be used
for those percentages or amounts.
(vi) Numerals should be used for section or other subdivision numbers.
(vii) In numbers that appear in text and citations use commas to separate groups of three digits
when those numbers contain five or more uninterrupted digits. Thus:
1,234,567
But: 9876
But: $5678.90

Do not employ this convention in citations to pages, statutes, volume numbers, Internet database
locators, docket numbers, the U.S. Code, or other sources whose classification systems do not
themselves include commas:
United States v. Walker, No. 00-40098-JAR, 2003 WL 131711 (D. Kan. Jan. 6, 2003).

8 Capitalization
(a) Headings and titles.
Capitalize words in a heading or title, including the initial word and any word that immediately
follows a colon. Do not capitalize articles, conjunctions, or prepositions when they are four or
fewer letters, unless they begin the heading or title, or immediately follow a colon.

Page 77 of 132
15 Books, Reports, and Other Nonperiodic Materials
This rule governs the citation of books, treatises, reports, white papers, dictionaries,
encyclopedias, and all other nonperiodic materials.

15.1 Author
The first time a work is cited, always give the authors full name as it appears on the publication,
including any designation such as JR. or III (inserting a comma before the designation only if
the author does). Do not include a designation such as Dr. or Prof. even if it appears on the
title page. Use large and small capitals:
HAROLD W. FUSON, JR., TELLING IT ALL: A LEGAL GUIDE TO THE EXERCISE OF FREE
SPEECH 5758 (1995).

When citing a single volume of a multivolume work, give only the author(s) of the volume cited.
Include the volume number, if any, at the beginning of the citation:
4 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE 1006
(2d ed. 1987).

(a) Two authors.

List the authors names in the order in which they appear on the title page, separated by an
ampersand:
LEO LEVIN & MEYER KRAMER, NEW PROVISIONS IN THE KETUBAH: A LEGAL OPINION 34
(1955).

If the title page establishes an alternative relationship between the two authors, e.g., WITH or
AS TOLD TO, use this phrase to separate the authors names:
EARVIN MAGIC JOHNSON WITH WILLIAM NOVAK, MY LIFE 39 (1993).

(b) More than two authors.

Either use the first authors name followed by ET AL. or list all of the authors names. The first
method is appropriate where saving space is desired, including short form citations. The second
method is appropriate when listing all of the authors names is particularly relevant. When listing
all of the authors' names, separate the names with commas, except the final name, which should
be set off with an ampersand (and without a comma).

Page 78 of 132
 LEO LEVIN ET AL., DISPUTE RESOLUTION DEVICES IN A DEMOCRATIC SOCIETY 77 (1985).
14 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE
AND PROCEDURE 3637 (3d ed. 1998).
RICHARD H. FALLON, JR. ET AL., HART AND WECHSLERS THE FEDERAL COURTS AND THE
FEDERAL SYSTEM 330 (6th ed. 2009).
RICHARD H. FALLON, JR., JOHN F. MANNING, DANIEL J. MELTZER & DAVID L. SHAPIRO, HART
AND WECHSLERS THE FEDERAL COURTS AND THE FEDERAL SYSTEM 330 (6th ed. 2009).

16 Periodical Materials
Citation of particular pages within a law review article with parenthetical information about what
appears on those pages:

Citation of an entire magazine article:

Citation of a signed newspaper article:

Page 79 of 132
16.1 Basic Citation Forms
Article in consecutively
paginated journal
Article in nonconsecutively
paginated journal or magazine 2005, at 39, 40.
Newspaper article
Online newspaper article
Signed student-written law
review note
Unsigned student-written
comment
Student-written book review
Non-student-written book
review
Symposium
Specially designated article in John M. Golden, Commentary, Patent Trolls and Patent
consecutively paginated
journal
Elizabeth F. Emens, Integrating Accommodation, 156 U. PA. L.
REV. 839, 894 (2008).
Benjamin Wittes, Without Precedent, ATLANTIC MONTHLY, Sept.
Scott Martelle, ID Law Keeps Nuns, Students from Polls, L.A.
TIMES, May 7, 2008, at A14.
John M. Broder, Geography Is Dividing Democrats Over
Energy, N.Y. TIMES (Jan. 27, 2009),
http://www.nytimes.com/2009/01/27/science/earth/27coal.html.
Bradford R. Clark, Note, Judicial Review of Congressional Section
Five Action: The Fallacy of Reverse Incorporation, 84 COLUM. L.
REV. 1969, 1986 (1984).
Case Comment, Fairness Standards for SEC Approval of
Mergers: Collins v. SEC, 90 HARV. L. REV. 453 (1976).
Sharon Dolovich, Book Note, Leaving the Law Behind, 20 HARV.
WOMENS L.J. 313, 329 (1997) (reviewing PATRICIA J. WILLIAMS,
THE ROOSTERS EGG: ON THE PERSISTENCE OF PREJUDICE (1995)).
Jane E. Stromseth, Understanding Constitutional War Powers
Today: Why Methodology Matters, 106 YALE L.J. 845 (1996)
(reviewing LOUIS FISHER, PRESIDENTIAL WAR POWER (1995)).
Symposium, The Presidency and Congress: Constitutionally
Separated and Shared Powers, 68 WASH. U. L.Q. 485, 64051
(1990).
Remedies, 85 TEX. L. REV. 2111, 2113 (2007).

Follow rule 16.4 or rule 16.5 to cite articles, essays, commentaries, and all other materials
contained within periodicals. Where the periodical is organized by volume, and page numbers
continue throughout the volume, it is a consecutively paginated periodical and should be cited
according to rule 16.4. Where the periodical is paginated separately for each issue and the first
page of every issue is 1, it is a nonconsecutively paginated periodical and should be cited
according to rule 16.5.
Cite newspapers according to rule 16.6.
Special citation forms for non-student-written book reviews, student-written law review
materials, symposia, colloquia, surveys, commentaries and other special designations, multipart
articles, annotations, proceedings, regular publications by institutes, ABA Section Reports, and
noncommercially distributed periodicals such as newsletters are given in rule 16.7.
Capitalize the titles of works cited according to rule 8(a).

Page 80 of 132
The name of the periodical should appear in large and small capitals whether it is a journal,
magazine, or newspaper, and should be abbreviated according to tables T13 (periodical
abbreviations) and T10 (geographic abbreviations).
For purposes of this rule, the date of the publication is the cover date of the periodical.

16.2 Author
For signed materials appearing in periodicals (including student-written materials), follow rule
15.1, but print in ordinary roman type. Thus:
Kim Lane Scheppele, Foreword: Telling Stories, 87 MICH. L. REV. 2073, 2082 (1989).
Robert P. Inman & Michael A. Fitts, Political Institutions and Fiscal Policy: Evidence
from the U.S. Historical Record, 6 J.L. ECON. & ORG. 79, 7982 (1990).
Paul Butler et al., Race, Law and Justice: The Rehnquist Court and the American
Dilemma, 45 AM. U. L. REV. 567, 569 (1996).
Georgette C. Poindexter, LizabethAnn Rogovoy & Susan Wachter, Selling Municipal
Property Tax Receivables: Economics, Privatization, and Public Policy in an Era of
Urban Distress, 30 CONN. L. REV. 157 (1997).
R. Gregory Cochran, Comment, Is the Shrinks Role Shrinking? The Ambiguity of Federal
Rule of Criminal Procedure 12.2 Concerning Government Psychiatric Testimony in
Negativing Cases, 147 U. PA. L. REV. 1403 (1999).
Peter Carlson, Tales Out of Law School; Repeat After Us: Its Nothing Like L.A.
Law, WASH. POST, July 2, 1989, (Magazine), at W13.

16.3 Title
Cite the full periodical title as it appears on the title page, but capitalize according to rule 8. Do
not abbreviate words or omit articles in the title. Use italics:
Edward B. Rock, The Logic and (Uncertain) Significance of Institutional Shareholder
Activism, 79 GEO. L.J. 445 (1991).
Cecilia Lacey OConnell, Comment, The Role of the Objector and the Current Circuit
Court Confusion Regarding Federal Rule of Civil Procedure 23.1: Should Non-Named
Shareholders Be Permitted To Appeal Adverse Judgements?, 48 CATH. U. L. REV. 939,
94346 (1999).

When the title contains a reference to material that would be italicized when appearing in the
main text according to rule 2.2(a), such material should appear in ordinary roman type:
Nathaniel A. Vitan, Book Note, Grounded Paratroopers: On Collins and Skovers The
Death of Discourse, 13 J.L. & POL. 207, 210 (1997).
Seth F. Kreimer, Does Pro-Choice Mean Pro-Kevorkian? An Essay on Roe, Casey, and the
Right to Die, 44 AM. U. L. REV. 803, 812 (1995).

16.4 Consecutively Paginated Journals

Cite works found within periodicals that are consecutively paginated throughout an entire volume
by author, title of work, volume number, periodical name, first page of the work, page or pages on
which specific material appears (rule 3.2(a)), and year enclosed in parentheses at the end of the
citation. Consult tables T10 and T13 to abbreviate the names of periodicals:
David Rudovsky, Police Abuse: Can the Violence Be Contained?, 27 HARV. C.R.-C.L. L.
REV. 465, 500 (1992).

Page 81 of 132
 Richard A. Epstein, The Supreme Court, 1987 TermForeword: Unconstitutional
Conditions, State Power, and the Limits of Consent, 102 HARV. L. REV. 4, 44 (1988).
Kenneth W. Tsang et al., A Cluster of Cases of Severe Acute Respiratory Syndrome in
Hong Kong, 348 NEW ENG. J. MED. 1977, 1977 (2003).
Pauline M. Ippolito & Alan D. Mathios, New Food Labeling Regulations and the Flow of
Nutrition Information to Consumers, 12 J. PUB. POLY & MARKETING 188 (1993).

Some journals maintain separate but consecutive pagination with different page numbering
systems. Cite these journals as indicated above, but include the special numbering:
Kenneth R. Feinberg, MediationA Preferred Method of Dispute Resolution, 16 PEPP. L.
REV. S5, S14 n.19 (1989).

If the periodical has no volume number but is nonetheless consecutively paginated throughout
each volume, use the year of publication as the volume number and omit the parenthetical
reference to the year:
Thomas R. McCoy & Barry Friedman, Conditional Spending: Federalisms Trojan Horse,
1988 SUP. CT. REV. 85, 100.
Stephen D. Sugarman, Using Private Schools to Promote Public Values, 1991 U. CHI.
LEGAL F. 171.

16.5 Nonconsecutively Paginated Journals and Magazines

Works appearing in periodicals that are separately paginated within each issue should be cited by
author, title of work, periodical name, date of issue as it appears on the cover, the word at (rule
3.2(a)), first page of work, and, if applicable, page or pages on which specific material appears. If
there is no author listed, begin the citation with the title of the piece. Consult tables
T10 and T13 to abbreviate the names of periodicals:
Barbara Ward, Progress for a Small Planet, HARV. BUS. REV., Sept.Oct. 1979, at 89, 90.
Barbara Ehrenreich, Iranscam: The Real Meaning of Oliver North, MS., May 1987, at 24,
24.
Joan B. Kelly, Mediated and Adversarial Divorce: Respondents Perceptions of Their
Processes and Outcomes, MEDIATION Q., Summer 1989, at 71.
Damages for a Deadly Cloud: The Bhopal Tragedy Will Cost Union Carbide $470
Million, TIME, Feb. 27, 1989, at 53.

If no date of issue is available, provide the issue number in its place, and indicate the volume
number before the title of the periodical per rule 16.4; also include the year and month of
copyright, if available:
Charles E. Mueller, The American Who Wants to Give Away His Country but Doesn't
Know That's What He's Voting for, 34 ANTITRUST L. & ECON. REV., no. 1, 2008, at 1, 7.

16.6 Newspapers
(a) In general.
Materials appearing in newspapers are generally cited in the same manner as those found in
nonconsecutively paginated periodicals (rule 16.5) with three exceptions: (i) when appropriate,
designate the work as an Editorial, Opinion, or Letter to the Editor, in ordinary roman type,
after the authors name but before the title, or at the beginning of the citation if there is no author;
(ii) after the date, give the designation of the section in which the piece is found in a parenthetical

Page 82 of 132
if necessary to identify the page unambiguously; and (iii) give only the first page of the piece and
do not indicate the location of specific material. Substitute Letter to the Editor or another
designation for the title when no separate title is provided. Citations to signed articles should
include the authors full name (rule 16.2); citations to unsigned pieces should begin with the title
of the piece:
Ari L. Goldman, OConnor Warns Politicians Risk Excommunication over Abortion, N.Y.
TIMES, June 15, 1990, at A1.
Cop Shoots Tire, Halts Stolen Car, S.F. CHRON., Oct. 10, 1975, at 43.
Jane Gross, Silent Right: Lawyer Defends Principles from Her Jail Cell, CHI. TRIB., Mar.
3, 1991, 6, at 6.
Nancy Reagan, Editorial, Just Say Whoa, WALL ST. J., Jan. 23, 1996, at A14.
William J. Clinton, Opinion, AIDS Is Not a Death Sentence, N.Y. TIMES, Dec. 1, 2002, 4,
at 9.
Editorial, Pricing Drugs, WASH. POST, Feb. 17, 2004, at A18.
Michael Harwood, The Ordeal: Life as a Medical Resident, N.Y. TIMES, June 3, 1984, 6
(Magazine), at 38.

(b) Place of publication.

Include the place of publication in ordinary roman type in parentheses following the name of the
newspaper if not clear from the name:
Trial Judge Will Not Give Enquiry Evidence, TIMES (London), June 13, 1990, at 3.
Nancy Johnson, Letter to the Editor, CHRON. HIGHER EDUC. (D.C.), Oct. 8, 2004, at A55.

16.7.1 Student-Written Law Review Materials

(a) Signed, student-written materials.
Signed and titled notes, comments, projects, etc. are cited in the same manner as any other signed
article in a law review (rule 16.4), with the authors full name in ordinary roman type at the
beginning of the citation (rule 16.2), except that the designation of the piece should appear before
the title of the work (rule 16.3) to indicate that it is student-written. Cite student-written book
reviews according to rule 16.7.1(c).
A student work is considered signed if a student is credited with writing or contributing to the
piece anywhere within the issue in which the work appearson the first page of the piece, at the
end of the piece, or in the table of contents. If a student work is signed only with initials, it is
considered unsigned:
Ellen London, Comment, A Critique of the Strict Liability Standard for Determining
Child Support in Cases of Male Victims of Sexual Assault and Statutory Rape, 152 U. PA.
L. REV. 1957, 195963 (2004).
B. George Ballman, Jr., Note, Amended Rule 6.1: Another Move Towards Mandatory Pro
Bono? Is That What We Want?, 7 GEO. J. LEGAL ETHICS 1139, 1162 n.155 (1994).
Barry I. Pershkow, Recent Development, Maryland v. Craig: A Child Witness Need Not
View the Defendant During Testimony in Child Abuse Cases, 65 TUL. L. REV. 935, 938,
941 (1991).

Signed, student-written commentary that is shorter, that falls under a designation such as
Recent Case, Recent Statute, Recent Decision, Case Note, Recent Development, or
Abstract, and that carries no title or merely a digest-like heading should be cited by author
followed by the designation of the piece as provided in the periodical, both in ordinary roman

Page 83 of 132
type. When appearing in the title, a case or statute citation should be formatted according to the
typeface conventions in rule 16.3. Thus:
Catherine Hauber, Note, 30 U. KAN. L. REV. 611 (1982).
Sally Anne Moore, Recent Case, H.L. v. Matheson, 101 S. Ct. 1164 (1981), 50 U. CIN. L.
REV. 867, 868 (1981).
Not: Sally Anne Moore, Recent Case, Constitutional LawRight of PrivacyAbortion
Family LawParent and ChildStandingAs Applied to Immature, Unemancipated
and Dependent Minors, a State Statute Requiring a Physician To Notify a Pregnant
Minors Parents Prior to the Performing of an Abortion Is ConstitutionalH.L. v.
Matheson, 101 S. Ct. 1164 (1981), 50 U. CIN. L. REV. 867, 868 (1981).

(b) Unsigned, student-written materials.

Cite unsigned notes, comments, and shorter commentary by the designation given by the
periodical, such as Note, Comment, Case Comment, Project, Recent Case, Case Note,
etc., in ordinary roman type, followed by the title of the piece, if any, in italics:
Note, A Bad Man Is Hard to Find, 127 HARV. L. REV. 2521 (2014).
Case Comment, Evidentiary Use of a Criminal Defendants Reading Habits and Political
Conversations: United States v. Giese, 93 HARV. L. REV. 419, 42527 (1979).
Recent Case, 24 VAND. L. REV. 148, 15152 (1970).
Recent Case, American Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583 (7th Cir.
2012), 126 HARV. L. REV. 1162 (2013).

When there is no separable designation, italicize the entire title:

Developments in the LawThe Law of Cyberspace, 112 HARV. L. REV. 1577, 1624 n.95
(1999).
The Supreme Court, 1998 TermLeading Cases, 113 HARV. L. REV. 368, 378 n.60 (1999).

(c) Student-written book reviews.

If a review is written and signed by a student, include the authors name and the designation
Book Note (regardless of the journals designation) to indicate that it is student-written,
followed by the title, if any. Add a parenthetical indicating the work under review if relevant to the
purpose of the citation and not clear from the surrounding discussion:
William Dubinsky, Book Note, 90 MICH. L. REV. 1512 (1992) (reviewing DANIEL A. FARBER
& PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE (1991)).
Nathaniel A. Vitan, Book Note, Irons vs. Rehnquist: A Critical Review of Peter
Irons Brennan vs. Rehnquist, 12 J.L. & POL. 141 (1995).

An unsigned, student-written book review should be cited in the same manner as other unsigned
student works, with a parenthetical citing the work under review if relevant:
Book Note, Let Us Reason Together, 112 HARV. L. REV. 958 (1999) (reviewing PIERRE
SCHLAG, THE ENCHANTMENT OF REASON (1998)).

16.7.2 Non-Student-Written Book Reviews

Give the full name of the reviewer according to rule 16.2, and the title of the review in italics.
Include a second parenthetical after the date parenthetical indicating, if it is not clear from the
surrounding discussion, the author, title, and publication date of the book reviewed.

Page 84 of 132
 Colin S. Diver, Second Governance and Sound Law, 89 MICH. L. REV. 1436 (1991)
(reviewing CHRISTOPHER F. EDLEY, JR., ADMINISTRATIVE LAW: RETHINKING JUDICIAL
CONTROL OF BUREAUCRACY (1990)).

If a non-student-written review is untitled, cite it by the designation Book Review.

Howard C. Westwood, Book Review, 45 U. CHI. L. REV. 255 (1977) (reviewing MAEVA
MARCUS, TRUMAN AND THE STEEL SEIZURE CASE: THE LIMITS OF PRESIDENTIAL POWER
(1977)).

16.7.3 Symposia, Colloquia, and Surveys

When citing a symposium, colloquium, or colloquy as a unit, do not give any author, but include
Symposium, Colloquium, or Colloquy in roman type before the title unless made clear by the
title. Cite the first page of the first piece:
Symposium, Changing Images of the State, 107 Harv. L. Rev. 1179 (1994).
The Brennan Center Symposium on Constitutional Law, 87 Calif. L. Rev. 1059 (1999).

Cite an individual article within a symposium, colloquium, colloquy, or survey in the same
manner as any other article:
Eric A. Posner, Law, Economics, and Inefficient Norms, 144 U. Pa. L. Rev. 1697 (1996).
Kevin R. Vodak, Comment, A Plainly Obvious Need for New-Fashioned Municipal
Liability: The Deliberate Indifference Standard and Board of County Commissioners of
Bryan County v. Brown, 48 DePaul L. Rev. 785 (1999).

21.4 Treaties and Other International Agreements

Citation of a treaty between two parties:

Citation of a treaty among more than two parties:

Page 85 of 132
Citation of a convention published by an international organization:

Organization of American States, American Convention on Human Rights, Nov. 22, 1969,
O.A.S.T.S. No. 36, 1144 U.N.T.S. 123.
United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397.

A citation of a treaty or other international agreementother than the U.N. Charter and the
Covenant of the League of Nationsshould include the agreements name (rule 21.4.1); the state
parties, if applicable (rule 21.4.2); the subdivision referred to, if applicable (rule 21.4.3); the date
of signing (rule 21.4.4); and the source(s) in which the treaty can be found (rule 21.4.5):
Statute of the International Tribunal for the Law of the Sea art. 1, 2, Dec. 10, 1982, 1833
U.N.T.S. 561.

21.4.1 Name of the Agreement

(a) First citation.
The first citation of a treaty should contain its full name, including both its form (rule 21.4.1(a)(i))
and its subject matter (rule 21.4.1(a)(ii)):
Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22 U.S.T.
1641, 860 U.N.T.S. 105.

(i) Form of agreement.

The title of the treaty should indicate the form of the agreement (e.g., Agreement,
Convention, Memorandum, Protocol, Treaty, Understanding). Use only the first form designation
that appears on the title page, unless doing so would create ambiguity:
Convention
Not: Convention & Supplementary Protocol

(ii) Subject matter.

Use the subject-matter description that appears as part of the title of the agreement:
Kyoto Protocol to the United Nations Framework Convention on Climate Change

21.4.2 Parties to the Agreement

When citing an agreement between two parties, indicate both parties, abbreviating their names
according to table T10:
Japan-U.S.
Fr.-Ger.

Parties names should appear in alphabetical order:

North American Free Trade Agreement, Can.-Mex.-U.S., Dec. 17, 1992, 32 I.L.M. 289
(1993).

21.4.3 Subdivisions

Page 86 of 132
When citing only part of an agreement, or when citing an appended document, give the
subdivision or appended document:
Treaty on Commerce and Navigation, Iraq-U.S., art. III, 2, Dec. 3, 1938, 54 Stat. 1790.
Declaration on the Neutrality of Laos, Protocol, July 23, 1962, 14 U.S.T. 1104, 456 U.N.T.S.
301.

When citing a subdivision, it is not necessary to include a pincite for the treaty series because the
article, paragraph, or section number is sufficient. For a discussion of citations to subdivisions
and appendices, see rules 3.3 and 3.4.
21.4.4 Date of Signing
Give the exact date of signing:
Protocol to Amend the Convention for the Suppression of the Traffic in Women and
Children, Nov. 12, 1947, 53 U.N.T.S. 13.

When multiple dates of signing are given for an agreement or exchange of notes between two
parties, give the first and last dates of signing:
Agreement on Weather Stations, Colom.-U.S., Apr. 27May 13, 1964, 15 U.S.T. 1355.

If a treaty is not signed on a single date, use the date on which the treaty was opened for
signature, approved, ratified, or adopted, and indicate the significance of the date in italics:
Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature July 1, 1968,
21 U.S.T. 483, 729 U.N.T.S. 161.

When available, the date on which a treaty entered into force should be added parenthetically at
the end of the citation:
U.N. Convention on the Law of the Sea, opened for signature Dec. 10, 1982, 1833 U.N.T.S.
397 (entered into force Nov. 16, 1994).

For abbreviations of the months of the year, see table T12.

21.4.5 Treaty Sources
See table T4 for a list of international treaty sources.
(a) Agreements to which the United States is a party.
(i) Bilateral treaties.
For agreements between the United States and another party, cite one of the following sources, in
the following order of preference: U.S.T. (or Stat.); T.I.A.S. (or T.S., or E.A.S.); U.N.T.S.; Senate
Treaty Documents or Senate Executive Documents; the Department of State Dispatch;
Department of State Press Releases.
Treaty on the Limitation of Anti-Ballistic Missile Systems, U.S.-U.S.S.R., May 26, 1972, 23
U.S.T. 3435.
Agreement on Defense and Economic Cooperation, Greece-U.S., at 4, Sept. 8, 1983,
T.I.A.S. No. 10814.
Tax Convention, Fin.-U.S., Sept. 21, 1989, S. TREATY DOC. No. 101-11 (1990).

Page 87 of 132
 Memorandum of Understanding Regarding Bilateral Verification Experiment and Data
Exchange Related to Prohibition of Chemical Weapons, U.S.-U.S.S.R., art. V(1), Sept. 23,
1989, DEPT ST. BULL., Nov. 1989, at 18.
Cuban-American Treaty, Cuba-U.S., art. I, Feb. 1623, 1903, T.S. No. 418.
Agreement Regarding Mutual Assistance Between Their Customs Administrations, Ir.-
U.S., art. 3, Sept. 16, 1996, 2141 U.N.T.S. 51.

(ii) Multilateral treaties.

For agreements among three or more parties to which the United States is a party, cite one of the
U.S. domestic sources listed in rule 21.4.5(a)(i), if therein. Additionally, a parallel citation may be
added from one source published by an international organization
(e.g., U.N.T.S., L.N.T.S., O.A.S.T.S., Pan-Am. T.S., O.J., E.T.S., or C.E.T.S.), if therein:
North Atlantic Treaty art. 5, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243.

(b) Agreements to which the United States is not a party.

Cite one source published by an international organization (rule 21.4.5(a)(ii)), if therein:
Treaty of Neutrality, Hung.-Turk., Jan. 5, 1929, 100 L.N.T.S. 137.
Agreement for the Avoidance of Double Taxation, Neth.-Swed., art. 4, Apr. 25, 1952, 163
U.N.T.S. 131.

If not, cite the official source of one signatory, if therein, indicating parenthetically the
jurisdiction whose source is cited according to rule 21.3 if it is not clear from the context. If the
treaty is not found in a signatorys treaty source, cite an unofficial treaty source (rule 21.4.5(c)):
Agreement on Trade, Economic, and Technical Cooperation, Austl.-Oman, Oct. 20, 1981,
[1982] A.T.S. 4.

T4 Treaty Sources
The dates in the center column refer to the years of the treaties contained in the source, not the years in which the
source was published.
T4.1 Official U.S. Sources

United States Treaties and Other 1950date <volume> U.S.T. xxx

International Agreements

Statutes at Large (indexed at 64 17781949 <volume> Stat. xxx

Stat. B1107)

Treaties and Other International 1945date T.I.A.S. No. x

Acts Series

Treaty Series 17781945 T.S. No. x

Executive Agreement Series 19221945 E.A.S. No. x

Senate Treaty Documents 1981date S. TREATY DOC. NO. X

Senate Executive Documents 17781980 S. EXEC. DOC. NO. X

T4.2 Intergovernmental Treaty sources

Page 88 of 132
United Nations Treaty Series 1946date <volume> U.N.T.S. xxx

League of Nations Treaty Series 19201945 <volume> L.N.T.S. xxx

Pan-American Treaty Series 1949date <volume> Pan-Am. T.S. xxx

European Treaty Series 19482003 E.T.S. No. xxx

Organization of American States 1970date O.A.S.T.S. No. xxx

Treaty Series

Council of Europe Treaty Series 2004date C.E.T.S. No. xxx

T6 Case Names and Institutional Authors in Citations

Unless otherwise indicated, plurals are formed by adding the letter s. Abbreviate any word in the possessive form by
adding an apostrophe if the word is plural and an apostrophe with the letter "s" if the word is singular. (Thus,
abbreviate "Employees'" to "Emps.'" and "Employee's" to "Emp.'s".)

Academ[ic, y] Acad. Brothers Bros. Construction Constr.

Administrat[ive, Admin. Building Bldg. Continental Cont'l

ion]
Business Bus. Cooperative Coop.
Administrat[or, Adm[r, x]
rix] Casualty Cas. Corporat[e, ion] Corp.

Advertising Advert. Cent[er, re] Ctr. Correction[s, al] Corr.

Agricultur[e, al] Agric. Central Cent. County Cty.

Alliance All. Chemical Chem. Defen[der, se] Def.

Alternative Alt. Coalition Coal. Department Dep't

America[n] Am. College Coll. Detention Det.

and & Commission Comm'n Development Dev.

Associate Assoc. Commissioner Comm'r Digital Dig.

Association Ass'n Committee Comm. Director Dir.

Atlantic Atl. Communication Commc'n Discount Disc.

Authority Auth. Community Cmty. Distribut[or, ing] Distrib.

Automo[bile, tive] Auto. Company Co. District Dist.

Avenue Ave. Compensation Comp. Division Div.

Bankruptcy Bankr. Computer Comput. East[ern] E.

Board Bd. Condominium Condo. Econom[ic, ical, Econ.

ics, y]
Broadcast[er, ing] Broad. Congress[ional] Cong.
Education[al] Educ.
Brotherhood Bhd. Consolidated Consol.
Electr[ic, ical, icity, Elec.

Page 89 of 132
onic] Incorporated Inc. National Nat'l

Employee Emp. Indemnity Indem. Natural Nat.

Employ[er, ment] Emp'[r, t] Independen[ce, t] Indep. North[ern] N.

Enforcement Enf't Industr[y, ies, ial] Indus. Northeast[ern] Ne.

Engineer Eng'r Information Info. Northwest[ern] Nw.

Engineering Eng'g Institut[e, ion] Inst. Number No.

Enterprise Enter. Insurance Ins. Opinion Op.

Entertainment Entm't International Int'l Organiz[ation, ing] Org.

Environment Env't Investment Inv. Pacific Pac.

Environmental Envtl. Investor Inv'r Parish Par.

Equality Equal. Laboratory Lab. Partnership P'ship

Equipment Equip. Liability Liab. Person[al, nel] Pers.

Examiner Exam'r Limited Ltd. Pharmaceutic[s, al, Pharm.

als]
Exchange Exch. Litigation Litig.
Preserv[e, ation] Pres.
Executive Exec. Machine[ry] Mach.
Probat[e, ion] Prob.
Execut[or, rix] Ex'[r, x] Maintenance Maint.
Product[ion] Prod.
Explorat[ion, ory] Expl. Management Mgmt.
Professional Prof'l
Export[er, ation] Exp. Manufacturer Mfr.
Property Prop.
Federal Fed. Manufacturing Mfg.
Protection Prot.
Federation Fed'n Maritime Mar.
Public Pub.
Fidelity Fid. Market Mkt.
Publication Publ'n
Financ[e, ial, ing] Fin. Marketing Mktg.
Publishing Publ'g
Foundation Found. Mechanic[al] Mech.
Railroad R.R.
General Gen. Medic[al, ine] Med.
Railway Ry.
Global Glob. Memorial Mem'l
Refining Ref.
Government Gov't Merchan[t, dise, Merch.
dising] Regional Reg'l
Group Grp.
Metropolitan Metro. Rehabilitat[ion, Rehab.
Guaranty Guar. ive]
Mortgage Mortg.
Hospital[ity] Hosp. Reproduct[ion, Reprod.
Municipal Mun. ive]
Housing Hous.
Mutual Mut. Resource[s] Res.
Import[er, ation] Imp.

Page 90 of 132
Restaurant Rest. South[ern] S. Temporary Temp.

Retirement Ret. Southeast[ern] Se. Township Twp.

Road Rd. Southwest[ern] Sw. Transcontinental Transcon.

Savings Sav. Steamship[s] S.S. Transport[ation] Transp.

School[s] Sch. Street St. Trust[ee] Tr.

Scien[ce, tific] Sci. Subcommittee Subcomm Turnpike Tpk.

.
Secretary Sec'y Uniform Unif.
Surety Sur.
Securit[y, ies] Sec. University Univ.
System[s] Sys.
Service Serv. Utility Util.
Techn[ical, Tech.
Shareholder S'holder ological, ology] Village Vill.

Social Soc. Telecommunicatio Telecomm West[ern] W.

n .
Society Soc'y
Tele[phone, graph]Tel.
Solution Sol.

T10.1 U.S. States, Cities, and Territories

States
Alabama Ala. Kansas Kan. New Mexico N.M.

Alaska Alaska Kentucky Ky. New York N.Y.

Arizona Ariz. Louisiana La. North Carolina N.C.

Arkansas Ark. Maine Me. North Dakota N.D.

California Cal. Maryland Md. Ohio Ohio

Colorado Colo. Massachusetts Mass. Oklahoma Okla.

Connecticut Conn. Michigan Mich. Oregon Or.

Delaware Del. Minnesota Minn. Pennsylvania Pa.

Florida Fla. Mississippi Miss. Rhode Island R.I.

Georgia Ga. Missouri Mo. South Carolina S.C.

Hawaii Haw. Montana Mont. South Dakota S.D.

Idaho Idaho Nebraska Neb. Tennessee Tenn.

Illinois Ill. Nevada Nev. Texas Tex.

Indiana Ind. New N.H. Utah Utah

Hampshire
Iowa Iowa Vermont Vt.
New Jersey N.J.

Page 91 of 132
Virginia Va. West Virginia W. Va. Wyoming Wyo.

Washington Wash. Wisconsin Wis.

Cities
Abbreviations for city names may also be composed from state name abbreviations above. For example, Oklahoma
City should be shortened to Okla. City.

Baltimore Balt. District of D.C. Philadelphia Phila.

Columbia
Boston Bos. Phoenix Phx.
Houston Hous.
Chicago Chi. San Francisco S.F.
Los Angeles L.A.
Dallas Dall.
New York N.Y.C.

T10.3 Countries and Regions

Afghanistan Afg. Belgium Belg. Chad Chad

Africa Afr. Belize Belize Chile Chile

Albania Alb. Benin Benin China, Peoples China

Republic of
Algeria Alg. Bermuda Berm.
Colombia Colom.
Andorra Andorra Bhutan Bhutan
Comoros Comoros
Angola Angl. Bolivia Bol.
Congo, Democratic Dem. Rep. Congo
Anguilla Anguilla Bosnia & Bosn. & Herz. Republic of the
Herzegovina
Antarctica Antarctica Congo, Republic of Congo
Botswana Bots. the
Antigua & Barbuda Ant. & Barb.
Brazil Braz. Costa Rica Costa Rica
Argentina Arg.
Brunei Brunei Cte dIvoire Cte dIvoire
Armenia Arm.
Bulgaria Bulg. Croatia Croat.
Asia Asia
Burkina Faso Burk. Faso Cuba Cuba
Australia Austl.
Burundi Burundi Cyprus Cyprus
Austria Austria
Cambodia Cambodia Czech Republic Czech
Azerbaijan Azer.
Cameroon Cameroon Denmark Den.
Bahamas Bah.
Canada Can. Djibouti Djib.
Bahrain Bahr.
Cape Verde Cape Verde Dominica Dominica
Bangladesh Bangl.
Cayman Islands Cayman Is. Dominican Dom. Rep.
Barbados Barb. Republic
Central African Cent. Afr. Rep.
Belarus Belr. Republic Ecuador Ecuador

Page 92 of 132
Egypt Egypt Iceland Ice. Malawi Malawi

El Salvador El Sal. India India Malaysia Malay.

England Eng. Indonesia Indon. Maldives Maldives

Equatorial Guinea Eq. Guinea Iran Iran Mali Mali

Eritrea Eri. Iraq Iraq Malta Malta

Estonia Est. Ireland Ir. Marshall Islands Marsh. Is.

Ethiopia Eth. Israel Isr. Martinique Mart.

Europe Eur. Italy It. Mauritania Mauritania

Falkland Islands Falkland Is. Jamaica Jam. Mauritius Mauritius

Fiji Fiji Japan Japan Mexico Mex.

Finland Fin. Jordan Jordan Micronesia Micr.

France Fr. Kazakhstan Kaz. Moldova Mold.

Gabon Gabon Kenya Kenya Monaco Monaco

Gambia Gam. Kiribati Kiribati Mongolia Mong.

Georgia Geor. Korea, North N. Kor. Montenegro Montenegro

Germany Ger. Korea, South S. Kor. Montserrat Montserrat

Ghana Ghana Kosovo Kos. Morocco Morocco

Gibraltar Gib. Kuwait Kuwait Mozambique Mozam.

Great Britain Gr. Brit. Kyrgyzstan Kyrg. Myanmar Myan.

Greece Greece Laos Laos Namibia Namib.

Greenland Green. Latvia Lat. Nauru Nauru

Grenada Gren. Lebanon Leb. Nepal Nepal

Guadeloupe Guad. Lesotho Lesotho Netherlands Neth.

Guatemala Guat. Liberia Liber. New Zealand N.Z.

Guinea Guinea Libya Libya Nicaragua Nicar.

Guinea-Bissau Guinea-Bissau Liechtenstein Liech. Niger Niger

Guyana Guy. Lithuania Lith. Nigeria Nigeria

Haiti Haiti Luxembourg Lux. North America N. Am.

Honduras Hond. Macau Mac. Northern Ireland N. Ir.

Hong Kong H.K. Macedonia Maced. Norway Nor.

Hungary Hung. Madagascar Madag. Oman Oman

Page 93 of 132
Pakistan Pak. Senegal Sen. Tonga Tonga

Palau Palau Serbia Serb. Trinidad & Tobago Trin. & Tobago

Panama Pan. Seychelles Sey. Tunisia Tunis.

Papua New Guinea Papua N.G. Sierra Leone Sierra Leone Turkey Turk.

Paraguay Para. Singapore Sing. Turkmenistan Turkm.

Peru Peru Slovakia Slovk. Turks & Caicos Turks & Caicos
Islands Is.
Philippines Phil. Slovenia Slovn.
Tuvalu Tuvalu
Pitcairn Island Pitcairn Is. Solomon Islands Solom. Is.
Uganda Uganda
Poland Pol. Somalia Som.
Ukraine Ukr.
Portugal Port. South Africa S. Afr.
United Arab U.A.E.
Qatar Qatar South America S. Am. Emirates

Runion Runion Spain Spain United Kingdom U.K.

Romania Rom. Sri Lanka Sri Lanka United States of U.S.

America
Russia Russ. Sudan Sudan
Uruguay Uru.
Rwanda Rwanda Suriname Surin.
Uzbekistan Uzb.
Saint Helena St. Helena Swaziland Swaz.
Vanuatu Vanuatu
Saint Kitts & Nevis St. Kitts & Nevis Sweden Swed.
Vatican City Vatican
Saint Lucia St. Lucia Switzerland Switz.
Venezuela Venez.
Saint Vincent & the St. Vincent Syria Syria
Grenadines Vietnam Viet.
Taiwan Taiwan
Samoa Samoa Virgin Islands, Virgin Is.
Tajikistan Taj. British
San Marino San Marino
Tanzania Tanz. Wales Wales
So Tom and So Tom &
Prncipe Prncipe Thailand Thai. Yemen Yemen

Saudi Arabia Saudi Arabia Timor-Leste (East Timor-Leste Zambia Zam.

Timor)
Scotland Scot. Zimbabwe Zim.
Togo Togo

T12 Months
In citations, abbreviate the names of months as follows:

January Jan. May May September Sept.

February Feb. June June October Oct.
March Mar. July July November Nov.
April Apr. August Aug. December Dec.

Page 94 of 132
T13 Periodicals

Always use the title of the periodical that appears on the title page of the issue you are citing,
even if the title of periodical has changed over time.

To abbreviate English language periodical titles, use tables T13.1, T13.2, and T10. Common
institutional names (e.g., law schools, professional organizations, and geographic units
commonly found in institutional names) are listed in table T13.1. If an institutional name is not
listed in table T13.1, individual words should be abbreviated using tables T13.1, T13.2, and T10.
If a word in an institutional name is not listed in these tables, use the full word in the
abbreviated periodical title. Other words in the periodical title should be abbreviated
using tables T13.1, T13.2, and T10.

If a word is listed in neither table T13.2 nor table T10, use the full word in the abbreviated title.
Omit the words a, at, in, of, and the (but retain the word on). Also, if the title consists
of only one word after the words a, at, in, of, and the have been omitted, do not
abbreviate the remaining word. Rule 6.1(a) explains the spacing of abbreviations.

Richard A. Posner, The Bluebook Blues, 120 YALE L.J. 850 (2011).

If a periodical title itself contains an abbreviation, use that abbreviation in the abbreviated title:

IMF SURV.

Omit commas from periodical title abbreviations but retain other punctuation:

Peter H. Huang & Ho-Mou Wu, More Order Without More Law: A Theory of Social
Norms and Organizational Cultures, 10 J.L. ECON. & ORG. 390 (1994).
Nineteen States Adopt Code of Judicial Conduct, OYEZ! OYEZ!, Feb. 1974, at 11.
Amy Hackney Blackwell & Christopher William Blackwell, Hijacking Shared Heritage:
Cultural Artifacts and Intellectual Property Rights, 13 CHI.-KENT J. INTELL. PROP. 137
(2013).

For periodical titles containing colons, omit words following the colon from the abbreviation:

Darren J. Mills, Personal Goodwill, a Corporate Asset, or No Asset at All, 91 TAXES 47

(2013).
Not: Darren J. Mills, Personal Goodwill, a Corporate Asset, or No Asset at All,
91 TAXES: THE TAX MAGAZINE 47 (2013).

If a periodical has been renumbered in a new series, indicate that fact:

Jill Martin, The Statutory Sub-Tenancy: A Right Against the World?, 41 CONV. & PROP.
LAW. (n.s.) 96 (1977).

For online supplements to the print publication, use the citation for the print publication,
followed by the online supplement name:

HARV. L. REV. FORUM

Page 95 of 132
T13.1 Institutions

Adelaide ADEL. Howard HOW.

Air Force A.F. John Marshall J. MARSHALL
Albany ALB. Judge Advocate JAG
American Bar Association A.B.A. General['s]
(ABA) Las Vegas L.V.
American Intellectual AIPLA Lawyer's Reports L.R.A.
Property Annotated
Law Association Loyola LOY.
American Law Institute A.L.I. Marquette MARQ.
[Journal of the] American [J]AMA Melbourne MELB.
Medical Association
Memphis MEM.
American Society of ASCAP
Composers, Authors, New England NEW ENG.
& Publishers New York University N.Y.U.
American University AM. U. [School of Law]
Boston College B.C. North[ern] N.
Boston University B.U. Northeast[ern] N E.
Brigham Young University BYU Northwest[ern] NW.
Brooklyn BROOK. Pepperdine PEPP.
Pittsburgh PITT.
Buffalo BUFF.
California (CALIFORNIA CALIF. Richmond RICH.
LAW Rocky Mountain Mineral ROCKY MTN. MIN. L.
REVIEW only) Law Institute INST.
Capital CAP. Saint Louis ST. LOUIS
Chapman CHAP. San Fernando Valley SAN FERN. V.
Chartered Life C.L.U. Southeast[ern] SE.
Underwriters South[ern] S.
Cincinnati CIN. Southern Methodist SMU
City University of New CUNY University
York Southwest[ern] SW.
Cleveland CLEV. Stanford STAN.
Columbia COLUM. Temple TEMP.
Cumberland CUMB. Thomas Jefferson T. JEFFERSON
Denver DENV. Thomas M. Cooley T.M. COOLEY
Detroit DET. Thurgood Marshall T. MARSHALL
Dickinson DICK. Toledo TOL.
Duquesne DUQ. Tulane TUL.
East[ern] E. Universidad de Puerto U. P.R.
Foreign Broadcast F.B.I.S. Rico
Information Service University of California U.C.
George Mason GEO. MASON University of California - UCLA
George Washington GEO. WASH. Los Angeles
Georgetown GEO. University of Missouri UMKC
Gonzaga GONZ. Kansas
City
Harvard HARV.

Page 96 of 132
University of the District UDC/DCSL Vanderbilt VAND.
of Villanova VILL.
Columbia, David A. Clarke
School of Law Washington & Lee WASH. & LEE
West[ern] W.
University of West Los UWLA
Angeles William & Mary WM. & MARY
Valparaiso VAL. William Mitchell WM. MITCHELL

T13.2 Common Words

Academ[ic, y] ACAD. College C. Environmental ENVTL.

Account[ant, ants, ACCT. Commentary COMMENT Estate[s] EST.
ing, ancy] . Europe[an] EUR.
Administrat[ive, or, ADMIN. Commerc[e, ial] COM. Faculty FAC.
ion] Communication[s] COMM. Family FAM.
Advertising ADVERT. Comparative COMP. Federal FED.
Advoca[te, cy] ADVOC. Conference CONF. Federation FED'N
Affairs AFF. Congressional CONG. Financ[e, ial] FIN.
Africa[n] AFR. Constitution[al] CONST. Fortnightly FORT.
Agricultur[e, al] AGRIC. Contemporary CONTEMP. Forum F.
Amendment AMEND. Contract[s] CONT. Foundation[s] FOUND.
America[n, s] AM . Conveyancer CONV. General GEN.
Ancestry ANC. Corporat[e, ion] CORP. Government GOV'T
and & Cosmetic COSM. Hispanic HISP.
Annual ANN. Counsel[or, ors, COUNS. Histor[ical, y] HIST.
Appellate APP. or's]
Hospital HOSP.
Arbitrat[ion, or, ARB. Court C T.
Human HUM.
ors] Courts CTS.
Association ASS'N Humanit[y, ies] HUMAN.
Criminal CRIM.
Immigration IMMIGR.
Attorney ATT'Y Defense DEF.
Bankruptcy BANKR. Independent INDEP.
Delinquency DELINQ.
Industrial INDUS.
Bar B. Department DEP'T
Behavior[al] BEHAV. Inequality INEQ.
Derecho DER.
British BRIT. Information INFO.
Development[s] DEV.
Injury INJ.
Bulletin BULL. Digest DIG.
Business BUS. Institute INST.
Diplomacy DIPL.
Insurance INS.
Capital CAP. Dispute DISP.
Catholic CATH. Intellectual INTELL.
Doctor DR.
Interdisciplinary INTERDISC
Cent[er, re] CTR. East[ern] E. .
Central CENT. Econom[ic, ics, ECON. Interest INT.
Children['s] CHILD. ical, y]
International INT'L
Chronicle CHRON. Education[al] EDUC.
Invest[ments, ors] INV.
Circuit CIR. Employ[ee, ment] EMP.
Journal J.
Civil CIV. English ENG.
Judicial JUD.
Civil Libert[y, ies] C.L. Entertainment ENT.
Juridical JURID.
Civil Rights C.R. Environment ENV'T

Page 97 of 132
Jurisprudence JURIS. Philosoph[ical, y] PHIL. Section SEC.
Justice JUST. Planning PLAN. Securities SEC.
Juvenile JUV. Policy POL'Y Sentencing SENT'G
Labor LAB. Politic[al, s] POL. Service SERV.
Law L. Practi[cal, ce, PRAC. Social SOC.
Law (first word) LAW tioner(s)] Society SOC'Y
Lawyer[s, s', 's] LAW. Private PRIV. Sociolog[ical, y] SOC.
Legislat[ion, ive] LEGIS. Probat[e, ion] PROB. Solicitor[s, s', 's] SOLIC.
Librar[y, ian, ies] LIBR. Problems PROBS. State ST.
Litigation LITIG. Proce[edings, dure] PROC. Statistic[s, al] STAT.
Local LOC. Products Liability PROD. Studies STUD.
LIAB.
Magazine MAG. Supreme Court SUP. CT.
Profession[al] PROF.
Management MGMT. Survey SURV.
Property PROP.
Maritime MAR. Symposium SYMP.
Psycholog[ical, y] PSYCHOL.
Market MKT. System SYS.
Public PUB.
Matrimonial MATRIM. Taxation TAX'N
Publishing PUB.
Medic[al, ine] MED. Teacher TCHR.
Puertorriqueo P.R.
Military MIL. Techn[ique, ology] TECH.
Quarterly Q.
Mineral MIN. Telecommunicatio TELECOM
Record REC. n[s] M.
Modern MOD.
Referee[s] REF. Transnational TRANSNAT
Municipal MUN.
Register REG. 'L
National NAT'L
Regulat[ion, ory] REG. Transportation TRANSP.
Nationality NAT'LITY
Relations REL. Tribune TRIB.
Natural NAT.
Report[s, er] REP. Trust[ee, s] TR.
Negligence NEGL.
Reproduct[ion, ive] REPROD. Uniform UCC
Negotiation NEGOT.
Research RES. Commercial Code
New Series N . S.
United States U.S.
Reserve RES.
Newsletter NEWSL.
Resolution RESOL. Universit[ies, y] U.
Office OFF. Urban URB.
Responsibility RESP.
Order ORD. Utilit[ies, y] UTIL.
Review REV.
Organization ORG.
Revista REV. Week WK.
Pacific PAC. Weekly WKLY.
Rights RTS.
Patent PAT.
School SCH. Yearbook (or Year Y.B.
Personal PERS. Book)
Scien[ce, ces, tific] SCI.
Perpsective[s] PERSP.
Scottish SCOT.

T16 Subdivisions

The following list provides abbreviations for names of document subdivisions frequently used in
legal citations. See rule 3 for further guidance in using these abbreviations. For those
abbreviations shown in blue ink, no space appears between the subdivision abbreviation and the
number/letter:
ch. 3
tbl.3

Page 98 of 132
addendum add. folio fol. part pt.

amendment amend. footnote[s] preamble pmbl.

in cross- note, notes
annotation annot. references n., nn. principle princ.
in other
appendi[x, ces] app., apps. references publication pub.

article art. historical note[s] hist. n., hist. nn. rule r.

bibliography bibliog. hypothetical hypo. schedule sched.

book bk. illustration[s] illus. section[s]

in amending act sec., secs.
chapter ch. introduction intro. in all other ,
contexts
clause cl. line[s] l., ll.
series, serial ser.
column col. number no.
subdivision subdiv.
comment[ary] cmt. page[s]
in cross- p., pp. subsection subsec.
decision dec.
references [at]
in other supplement supp.
department dept.
references
table tbl.
division div.
paragraph[s]
title tit.
example ex. if symbol appears ,
in source para., paras. volume vol.
figure fig. if otherwise

Page 99 of 132
 SOURCE A
COLUMBIA LAW REVIEW
VOL. 98 APRIL 1998 NO. 3

Copyright 1998 by Directors of The Columbia Law Review Association, Inc. All rights reserved.

CONTENTS

ARTICLES
AccouNTABnxrxY, LIBERTY, AND
CONSTITUTION Rebecca L. Brown 531
ProfessorBrown argues thatpolitical accountability has been mis-
understoodin constitutionaltheory. Cast as the servant of majoritari-
anism, it has in that role contributed to a model that places majority
rule at the heart of legitimacy and requiresspecialjustificationfor any
departuresfrom majoritariandecisionmaking. This model underlies
Alexander Bickel's counter-majoritariandifficulty, which in turn has
shaped much of modern constitutionaltheory. ProfessorBrown argues
that the model is wrong for both normative and historical reasons.
Historically, she points to evidence suggesting that representation in
America was designed as a means for the people to protect themselves
from their own representativegovernment. Thus, we have less a prefer-
ence-maximizing Constitution than a tyranny-minimizing one. Popu-
larparticipationin government serves to allow the people to oversee the
entire structure of government, including both unelected and elected
bodies. Thus, accountability should be understood as a structuralfea-
ture of the Constitution-similarto separationof powers, checks and
balances, or federalism-the purpose of which is to protect liberty.

QUESTIONING THE "NEw CONSENSUS" ON

PROMISSORY ESTOPPEL: AN EMPIUCAL
AND THEoRETicAL STUDY Robert A. Hillman 580
Professor Hillman presents evidence that contradicts several as-
sumptions about how courts apply the doctrine of promissory estoppel.
Although theorists have claimed the importance, even dominance, of
the theory as a groundfor enforcing promises, the authorshows that the
theory is remarkably unsuccessful in the courts. ProfessorHillman also
demonstrates the crucial role of reliance in both successful and unsuc-
cessful promissory estoppel cases, despite the "new consensus" that
courts enforce promises without a showing of reliance. Finally,
ProfessorHillman shows that courts awarddamagesflexibly in success-
ful promissory estoppel cases, although analysts have claimed that
courts stronglyfavor expectancy damages.

Page 100 of 132

 QUESTIONING THE "NEW CONSENSUS" ON
PROMISSORY ESTOPPEL: AN EMPIRICAL AND
THEORETICAL STUDY

Robert A. Hillman*

ProfessorHillman presents evidence that contradicts several assump-

tions about how courts apply the doctrine of promissory estoppel. Although
theorists have claimed the importance, even dominance, of the theory as a
groundfor enforcingpromises, he shows that the theory is remarkably unsuc-
cessful in the courts. ProfessorHillman also demonstrates the crucial role of
reliancein both successful and unsuccessfulpromissory estoppel cases, despite
the "new consensus" that courts enforce promises without a showing of reli-
ance. Finally, ProfessorHillman shows that courts award damagesflexibly
in successful promissory estoppel cases, although analysts have claimed that
courts strongly favor expectancy damages.
ProfessorHillman derives his evidence from a data pool of all of the
reporteddecisions in the United Statesfor a two-yearperiod in the mid-1990s
in which a promissory estoppel claim eithersucceeded orfailedor in which a
court discussed promissory estoppel. He reports the results of a systematic
survey of these cases. He also analyzes and discusses a representativesample
of the cases in greater depth. In addition, ProfessorHillman reexamines
some of the cases in earlier studies that led others to report incorrectly the
unimportance of reliance.
ProfessorHillman also discusses why promissory estoppel has been so
unsuccessful in the courts. He surmises that claimants may have overesti-
mated the chances of success because of theirfailure to comprehend a judicial
souring on the theory. Another possible explanation is that claimants often
bring weak secondary claims of promissory estoppel. Professor Hillman
leaves for anotherday the question of whether promissory estoppel should be
more successful and whether promissory estoppel should require reliance.

INTRODUCI'ON

The purpose of this Article is to present evidence of a fundamental

misunderstanding of how courts apply the theory of obligation called
promissory estoppel. Contrary to the accepted wisdom, the data and
analysis presented here (1) demonstrate that the theory seldom leads to
victory in reported decisions, (2) underscore the immense importance of

* Edwin Woodruff Professor of Law, Cornell Law School. Thanks to my colleague,

Ted Eisenberg, for his great patience in teaching me how to enter and analyze the data.
Jean Braucher, Kevin Clermont, Ted Eisenberg, Allan Farnsworth, Jim Henderson, Stewart
Macaulay, and Jeff Rachlinski read the manuscript and provided helpful insights. Thanks
also to Karen Wilson, my secretary, for entering the data. Hera Arsen, David Becker,
Gillian Crenshaw, George Caballero, Kevin Deborde, Anita Lee, and David Passey, students
at the Cornell Law School, compiled the data and I thank them too. David Becker
deserves special thanks for understanding and operating the Stata 5.0 data analysis
program.

Page 101 of 132

1998] QUESTIONING THE 'NEW CONSENSUS"

better understanding of the meaning of the promissory estoppel win rates

can be gained by comparing them to actual win rates of other related
cases, such as other contract cases. Although data comparable to this
study are not available for contract cases, published information offers at
least a rough basis for comparison. Table 1.3 compares win rates on the
merits of promissory estoppel cases in federal district courts and state trial
courts with win rates of contract claims in federal district courts and
6
shows that the contract claims were 10 times more successful. 3

TABLE 1.3:
WIN RATE OF PROMISSORY ESTOPPEL CLAIMs ON THE MERITS-
TRIAL CouRTs
Plaintiff Plaintiff
Wins Loses
N (%) N (%) Total
Promissory Estoppel
Claims64 6 (5.45) 104 (94.55) 110
Comparison: Win Rates
for Contract Claims in
Federal District Court
Cases65 14,308 (54.77) 11,818 (45.23) 26,126

2. Lack of success in all subject areas and contexts, and the special problem
of employment contracts.- Table 2.1 breaks out the win rates on the merits
for the different subject matters and illustrates the lack of success of
promissory estoppel across all subject areas. The Table also highlights

and Removal Jurisdiction 7-8 (Aug. 25, 1997) (unpublished manuscript, on file with the
Columbia Law Review) ("[C]ase-selection effect theory holds that the win rate reveals
something about the set of adjudged cases, and not much about the underlying mass of
disputes. .. ").
63. But neither the general prediction of 50% win rates nor the data set forth in Table
1.3 addresses wins and losses of individual claims in a multiple-claim law suit. In fact,
promissory estoppel is almost invariably joined by other claims, which may help account
for the low win rate. See infra text accompanying notes 80-81.
64. These state trial court and federal district court claims from the data were
successful or failed on the merits, as defined supra in text accompanying note 56.
65. These data are derived from a "database of about 3.7 million federal district court
civil cases terminated over the last 17 fiscal years. The data were gathered by the
Administrative Office of the United States Courts, assembled by the Federal Judicial
Center, and disseminated by the Inter-university Consortium for Political and Social
Research." Quoting from the Internet at <http://teddy.law.cornell.edu:8090/
questcv2.htm> (visited Feb. 3, 1998) (on file with the ColumbiaLaw Review) where the data
is available. The plaintiff win rate reported in this Table is for all types of contract cases
terminated in federal district courts during fiscal years 1990-1994 (July 1, 1989 through
September 30, 1994) for which the method of disposition was a pre-trial motion, jury
verdict, directed verdict, or nonjury trial. Cases that were disposed of by defaultjudgment
or consent judgment are not included.

Page 102 of 132

 SOURCE B

Page 103 of 132

 SOURCE C
HARRY POTTER AND THE TROUBLE WITH
TORT THEORY
Volume 63, Issue 1
Scott Hershovitz*
Economists argue that tort law promotes an efficient allocation of resources
Stanford to safety, while philosophers contend that it dispenses correctivejustice. Despite
the divide, the leading tort theories share something in common: they are
grounded in an unduly narrow view of tort. Both economists and philosophers
confuse the institution of tort law with the rules that are distinctive ofit. They of-
fer theories of tort's substantiverules, butfor the most part ignorethe procedures
Law Review
by which those rules are implemented. As a consequence, both miss and miscon-
strue much about tort law.
The problem is particularlyacutefor economists. They analyze the impact of
tort's substantive rules on accident and accident avoidance costs. Yet, the institu-

Page 104 of 132

tion of tort law generates many other costs and benefits for society, and those
C 2010 by the Board of Trustees of the Leland Stanford JuniorUniversity costs and benefits affect the optimal arrangementof tort's rules. The fact that
economists have not factored these additionalcosts and benefits into their ana-
lyses calls into question their descriptiveand normative claims about tort.
Corrective justice theory is not in as much trouble as the economic ap-
December 2010
proach, but it is troubled still. Philosophers' neglect of the proceduraldimension
of tort has caused them to overlook ways that tort does justice between wrong-
CONTENTS doers and victims. And it has led them to make misleading claims about the na-
ture ofboth correctivejustice and tort law.
This Article draws out the trouble with tort theory through a thought expe-
ARTICLES riment, starringHarry Potter. Potter's magic helps to highlight the features of
tort that the leading theories overlook Once they are in view, the Article consid-
INTER-JUDGE SENTENCING DISPARITY AFTER BOOKER: A FIRST LOOK..................................I ers the ways in which the omissions cast doubt on the claims those theories make,
Ryan W. Scott investigatesways they might improved, and offers several observations about the
HARRY POTTER AND THE TROUBLE WITH TORT THEORY........................................................67
choice between them.
Scott Hershovitz
COLLECTIVE ACTION FEDERALISM: A GENERAL THEORY OF ARTICLE 1,SECTION 8............... 15
Robert D. Cooter & Neil S. Siegel
* Assistant Professor, University of Michigan Law School. Thanks to Joe Bankman,
RECESSIONS AND THE SOCIAL SAFETY NET: THE ALTERNATIVE MINIMUM TAX AS A
Jules Coleman, Steve Croley, John Goldberg, Daniel Halberstam, Don Herzog, Jim Hines,
COUNTERCYCLICAL FISCAL STABILIZER..............................................................................187
Brian Galle & Jonathan Klick
Jill Horwitz, Greg Keating, Jody Kraus, Kyle Logue, Gabe Mendlow, Bill Miller, Stephen
Perry, Richard Primus, Don Regan, Arthur Ripstein, Gil Seinfeld, Scott Shapiro, Jason So-
lomon, David Uhlmann, Mike Wells, John Witt, and Ben Zipursky for helpful comments and
conversations. I also benefited from discussion with participants at the 2010 Yale-Stanford
Junior Faculty Forum and workshop audiences at the University of Georgia, University of
Southern California, University of Toledo, and Georgia State University. Finally, thanks to
the editors of this journal for their hard work and helpful suggestions and to Eli Best and
Alex Sarch for valuable research assistance.
67
December 2010] THE TROUBLE WITH TORT THEORY 113
tem aims at, justice is not among its goals. However, there is another story we
might tell, one in which large compensatory damage awards are demanded by
justice only because the people who might be subject to them have the oppor-
tunity to purchase liability insurance in advance. On this story, in the absence
of liability insurance, justice would not require people who are momentarily
careless (e.g., by looking away from the road for a split second to read a bill-
board) to pay "make whole" damages to someone they severely injure, because
the remedy would be utterly out of proportion to the infraction. With liability
insurance, however, justice might well demand such damages, if we are of the
view that responsible people prepare in advance to make good any injuries their
negligence might inflict on others.138 In other words, the availability of liability
insurance might make it more plausible that tort damage awards are a Strawso-
nian response to wrongdoing, not less.
I am inclined to think there is much truth in the Strawsonian picture of tort
law, even as things stand now. However, I concede that it may be more com-
pelling as an account of what tort could be (or once was) than as an account of
what it is. It would take more work to establish that the Strawsonian picture is
more than an anachronism or fantasy, but the possibility that it is or might be
provides an important counterweight to the trend toward seeing tort as just
another policy tool.
IV. HARRY POTTER AND THE TROUBLE WITH LEGAL THEORY
To this point we have considered only tort, but Harry Potter will take many
other courses during his time in law school. Each time he studies a new subject,
he may find himself thinking that the process for adjudicating claims is expen-
sive and slow, and pondering whether he might cast a spell that would improve
the situation. Thus, one might wonder whether the arguments of this Article
apply beyond tort. The answer is yes and no.
To the extent that economists overlook collateral costs and benefits in their
analysis of other areas of law, the consequence will be the same as for tort.
Without information about the collateral costs and benefits of different contract
regimes, for example, we cannot know which contract rules are efficient. Of
course, the extent to which collateral costs and benefits will upset the standard
economic analysis of different areas of legal doctrine will vary depending on
what the collateral costs and benefits associated with each are. Until we have
that information, however, we have reason to approach all claims about the ef-
ficiency of legal doctrine skeptically.
Whether the concerns raised about the corrective justice approach to tort
have application to other areas of law is more complicated. In the hands of
138. See Jeremy Waldron, Moments of Carelessness and Massive Loss, in
PHILOSOPHICAL FOUNDATIONS OF TORT LAW, supra note 16, at 387, 388 (noting the possibili-
ty that liability insurance transforms an otherwise unjust system into a just one).
114 STANFORD LAW REVIEW [Vol. 63:67
most philosophers, corrective justice is a theory about tort, not a theory about
private law more generally, and certainly not a theory of law full stop. To the
extent that other areas of law are concerned with righting wrongs, the argu-
ments in this Article may have wider application. Some philosophers, for ex-
ample, think that contract law reflects the morality of promising. If so, perhaps
the formal remedies on offer in a contract suit do not exhaust the ways that con-
tract law works to put matters right when one person wrongs another by break-
ing a promise. If contract law is up to something else, however, the argument
about corrective justice may have no application.
Even though the conclusions this Article reached about tort may not be ge-
neralizable to other areas of law, the approach it adopted is. The mistake that
economists and philosophers make in thinking about tort is endemic to legal
theory. We commonly confuse the substantive rules that are distinctive of a
body of law with the institution that implements those rules. As we saw with
tort, that can lead us to misconstrue the impact those institutions have on our
lives. We would do well to follow Harry Potter through the law school curricu-
lum; he may have a lot to teach us.
Page 105 of 132
CONCLUSION
The charm of Harry Potter's spell is that it does tort law without lawsuits;
but lawsuits, it turns out, are part of the charm of tort law. The failure of econ-
omists and philosophers to appreciate that has led both to offer theories of tort
that are radically incomplete. Economists have ignored tort's collateral costs
and benefits, and because of the oversight we must approach every assertion
they make about the efficiency of tort doctrine with a healthy skepticism. Phi-
losophers have missed the fact that tort does more to respond to wrongdoing
than enforce duties of repair, and as a consequence, they have given us impove-
rished theories of both corrective justice and tort. That is the bad news. The
good news is that now that Potter has helped us see the trouble with tort theory,
we can set about fixing it.
SOURCE D

Page 106 of 132

 SOURCE E
TREATY SERIES, No. 759
By TilE PRESIOE;>;T Of' THE UNIT E D STATES OF AMJ::RICA
CONVENTIO N A PROCLAMATlQN
BETWEEN THE
WHEREAS II. Convent.ion between the Un ited States of America
and His M al'csty the King of the Belgians to prevent the sDluggling
UNITED STATES A ND BELGIUM of alcoholic iquors into the United States was concluded Rod signed
by their respecti ve Plenipotcntia.ries at Wo!;hington on the ninth
day of D ecember, one tho usand nine hun dred ILlld twenty-five, tho
original of which Convention, being in the English !Iud French
languages, is word for word as follows:
Prevention of Smuggling of The President of the Un ited
States of AmericA. alld His
Le P resident. des EtRts-Unis
d' Amerique Ilt Sa :'1ajeste Ie Roi
esty the King of the Belgians, des Belges, desireux
Intoxicating Liquors being desirous of avoiding any toutcs difficultts qui pourraient
difficulties which might n.rise be- survellir entre leurs pays reta-
tween them in connection with tivement aux lois en vigucur aux
the lAWS ill force in the United Etats-Unis sur Ie sujet des bois-

Page 107 of 132

SICNED "T W4SHINCTON. DECEMBER 9, 1915
RATIFICATION ADVISED BY lltE. SENATE. MARCH 1, 19K
RATI FI ED BY n-u::: P!l.E.S IDENT. MARC{
RATlf"fEO BY BELGIUM. DECEMBER
RATIFICATIONS EXI HANGED AT WASHINCTON. JANUARY 11.191.
PRoct..AIMEO. JAtNARY 11 .I 92S
UN1TTD STATES
COVERNMENT PR INTING OFFICE
WA::iH I/'iCTON
191&
States on t he subject of alcoholic sons alcooliques, ont decide de
beverages have decided to eon- concluro une convention il cel.te
dude a Conveution for that pur- fin et ont dl:signe POUI" iltre leurs
)0, 1926
EOso, and hM-e appointed 8S their p!6uipotentillires:
Plenipotentiaries:
The President of the United Le P resident des Etats-L-nis
Sta.tes of AJIleric&.: Frank B . d 'Amerique ::\ f. F ,ank ll. Kel-
Kellogg, Secretary of State of the log).;, Secrctlli r(>. d 'E tat des Etnts-
United States; aud uu.is; et
His Majcsty the K ing of the Sa Ie Roi des Belges:
Belgiaus: Baron de Caltier de Baron de Cartier
Mll.rchienlle, His :\-Iajesty's Am- enne, AmbaSSfLdeur F.xt\"l\orJi-
baSSll.dor Extmordinll.ry and Plen- naire et l)lenipotenlinire de
ipotcntill.ry to the C"nited States allx Etats-C"nis d 'Amer-
of America. iqlle.
Who, having communicated Lcsquc!s, Rpnh s'Hro communi-
their full powers found in good que leu rs plein;> pouvoirs troun!s
and due form, have agreed RS en bonnc et due sont con-
follows: vellus des arlicles suiH.n ts:
AnTI CLE I ARTICLE I
The Parties Les R ll.utlls P ar ties COlltrac-
respectivelY retain theu rights Lantes rcservcnt. l"espccti\eIlH'nt
and claims, withuut pIT'judictl by leur;> droits . 01. revendieatiolls
reason of this agreement, with q\lltnt il. 1'H.ondue (k leur luri-
respect. to the extent or their ter- diction territorie!e , snns que 'ur-
ritoriB.! jurisdiction . rangemcnt nctuei y porte preiu-
dice.
(J)
 SOURCE F
VOLUME 90 JANUARY 1977 NUMBER 3
HARVARD LAW REVIEW
STATE CONSTITUTIONS AND THE
PROTECTION OF INDIVIDUAL RIGHTS
William J. Brennan, Jr.*
During the r96o's, as the Supreme Court expanded the measure
of federal protection for individual rights, there was little need for
litigants to rest their claims, or judges their decisions, on state con-
stitutonal grounds. In this Article, Mr. Justice Brennan argues that
the trend of recent Supreme Court civil liberties decisions should
prompt a reappraisalof that strategy. He particularly notes the
numerous state courts which have already extended to their citizens,
via state constitutions, greater protections than the Supreme Court
has held are applicable under the federal Bill of Rights. Finally, he
discusses, and applauds, the implications of this new state court
activism for the structure of American federalism.
R EACHING the biblical summit of three score and ten seems
to be the occasion - or the excuse - for looking back.
Forty-eight years ago I entered law school and forty-four years
ago was admitted to the New Jersey Bar. In those days of
innocence, the preoccupation of the profession, bench and bar,
was with questions usually answered by application of state com-
mon law principles or state statutes. Any necessity to consult
federal law was at best episodic. But those were also the grim
days of the Depression, and its cure was dramatically to change
the face of American law. The year 1933 witnessed the birth of
a plethora of new federal laws and new federal agencies develop-
ing and enforcing those laws; ones that were to affect profoundly
the daily lives of every person in the nation.
In my days at law school, Felix Frankfurter had taught ad-
ministrative law in terms of the operations of the Interstate Com-
merce Commission - because that was the only major federal
regulatory agency then existing. But then came in rapid succes-
sion the National Labor Relations Board, the Securities and
Exchange Commission, the Civil Aeronautics Board, the Federal
Communications Commission, the Federal Power Commission
and a host of others. In addition, laws such as the Fair Labor
Standards Act, administered by the Labor Department, also began
to require practitioners to master new, and federal, fields of law in
* Associate Justice, United States Supreme Court.
19771 STATE CONSTITUTIONAL RIGHTS
For example, the California Supreme Court held, as a matter of
state constitutional law, that bank depositors have a sufficient
expectation of privacy in their bank records to invalidate the
voluntary disclosure of such records by a bank to the police with-
out the knowledge or consent of the depositor;-" thereafter the
United States Supreme Court ruled that federal law was to the
contrary9
And of course state courts that rest their decisions wholly or
even partly on state law need not apply federal principles of
standing and justiciability that deny litigants access to the courts.
Moreover, the state decisions not only cannot be overturned by,
they indeed are not even reviewable by, the Supreme Court of
the United States. We are utterly without jurisdiction to review
such state decisions."0 This was precisely the circumstance of
Mr. Justice Hall's now famous Mt. Laurel decision," which was
grounded on the New Jersey Constitution and on state law. The
review sought in that case in the United States Supreme Court
was, therefore, completely precluded.
This pattern of state court decisions puts to rest the notion
Page 108 of 132
that state constitutional provisions were adopted to mirror the
federal Bill of Rights. The lesson of history is otherwise; indeed,
the drafters of the federal Bill of Rights drew upon corresponding
provisions in the various state constitutions. Prior to the adoption
of the federal Constitution, each of the rights eventually recog-
nized in the federal Bill of Rights had previously been protected
in one or more state constitutions.s ' And prior to the adoption of
78 Burrows v. Superior Court, 13 Cal. 3d 238, 529 P.2d 59o, IIS Cal. Rptr. 166
(1974).
" United States v. Miller, 96 S. Ct. 2619 (1976).
80 The Supreme Court's jurisdiction over state cases is limited to the correction
of errors related solely to questions of federal law. It cannot review state court
determinations of state law even when the case also involves federal issues. Murdock
v. City of Memphis, 87 U.S. (20 Wall.) 590 (1875). Moreover, if a state ground
is independent and adequate to support a judgment, the Court has no jurisdiction
at all over the decision despite the presence of federal issues. Fox Film Corp. v.
Muller, 296 U.S. 207 (1935); Murdock v. City of Memphis, 87 U.S. (20 Wall.)
590 (1875). One reason for the refusal to review such decisions, even where the.
state court also decides a federal question erroneously, was explained by Mr.
Justice Jackson in Herb v. Pitcairn, 324 U.S. 1i7,-125-26 (945):
Our only power over state judgments is to correct them to the extent that
they incorrectly adjudge federal rights. And our power is to correct wrong
judgments, not to revise opinions. We are not permitted to render an ad-
visory opinion, and if the same judgment would be rendered by the state
court after we corrected its views of federal laws, our review could amount
to nothing more than an advisory opinion.
8" Southern Burlington County NAACP v. Township of Mt. Laurel, 67 N.J.
1SI, 336 A.2d 713 (invalidating town's exclusive zoning ordinance), appeal dis-
missed and cert. denied, 423 U.S. 8o8 (1975).
81 See generally Brennan, The Bill of Rights and the States, in THaE GREAT
RIGHTs (E. Cahn ed. 1963).
 SOURCE G

Page 109 of 132

 SOURCE H

TH AL LAW JOURAL

VOLUME 114, ISSUE 6 MAY 2008

CRISTINA M. RODRIGUEZ

From Litigation, Legislation:

A Review of Brian Landsberg's Free at Last To Vote:
The Alabama Origins of the 1965 Voting Rights Act

Free atLast To Vote:

The Alabama Origins of the 1965 Voting Rights Act
BY BRIAN LANDSBERG
LAWRENCE: UNIVERSITY PRESS OF KANSAS, 2007. PP. 264. $34.95

A U'T HO R. Associate Professor of Law, NYU School of Law. Thank you to Sam
Issacharoff, Patrick Garlinger, and Ellen Van Scoyoc for their insights.

1133

Page 110 of 132

THE YALE LAW JOURNAL 117:1132 20o8

INTRODUCTION

Brian Landsberg puts lawyers at the center of history. In Free at Last To

Vote: The Alabama Origins of the 1965 Voting Rights Act,' Landsberg tells the
story of the Department of Justice (DOJ) attorneys who spent the early 196os
bringing case after case against recalcitrant local officials in Alabama to enforce
the voting rights provisions of the civil, rights statutes that preceded the
landmark Voting Rights Act of 1965 (VRA).2 In the popular imagination and in
broadly framed historical accounts, the VRA represents the culmination of
grassroots civil rights struggle and hardball national politics.' But Landsberg
reminds us that a group of dedicated litigators not only helped set the stage for
the passage of what scholars call the most successful civil rights law of all time ,4
but also played a critical role in shaping the content of that statute.'
Landsberg, then fresh out of law school, was among this initial cadre of
lawyers. His carefully researched account of the cases they brought in three
Alabama counties is nicely inflected by personal recollections of the dramatis
personae, as well as a sense of relief that his fact-gathering labors ultimately
contributed to a revolutionary social achievement -a reminder to all frustrated
by the minutiae of the practice of law that meticulous attention to detail is
essential to the vindication of lofty principles. In this history cum memoir,
Landsberg does not set out to revise, so much as expand, existing accounts of
events leading up to the VRA, and he succeeds in deepening the institutional
picture of the origins of the statute.
Through the witness testimony they collected to support their cases,
Landsberg and his colleagues constructed elaborate records that exposed how
local registrars applied neutral requirements in disparate ways to keep
otherwise qualified black residents from joining the voting rolls. By

1. BRIAN K. LANDSBERG, FREE AT LAST To VOTE: THE ALABAMA ORIGINS OF THE 1965 VOTING
RIGHTS ACT (2007).
2. Pub. L. No. 89-11o, 79 Stat. 437 (codified as amended at 42 U.S.C. 197 3-1973 bb (2000)).
3. See, e.g., ALEXANDER KEYSSAR, THE RIGHT To VOTE: THE CONTESTED HISTORY OF
DEMOCRACY IN THE UNITED STATES 264-65 (2000) (noting that resistance to racial equality
that "was finally overcome in the 196os was a result of the convergence of a wide array of
social and political forces," such as migration of blacks to the cities, growing political power
of blacks in the North, the civil rights movement itself, and a commitment to democracy in
the face of fascism and communism in Europe).
4. See, e.g., Richard H. Pildes, Introduction to THE FuTURE OF THE VOTING RIGHTS ACT, at xi
(David L. Epstein et al. eds., 2006) ("The Voting Rights Act ...is a sacred symbol of
American democracy ...[and] was the last significant stage in the nearly universal formal
inclusion of all adult citizens in American democracy.").
5. See LANDSBERG, supra note i, at 148-89.

Page 111 of 132

 SOURCE I

Page 112 of 132

 SOURCE J
FORDHAM
I NTELLECTUAL PROPERTY, MEDlA &
A Comparative Analysis of the
ENTERTAlNMENT LAW JOURNAL
VOWMEXXVI SUMMt:lt2016 N UM8ER4
NFL's Disciplinary Structure:
The Commissioner's Power a nd
CONTENTS Players' Rights
ARTICl.ES Cole Renicker
WHAT'S So SPECIAL A IIOlfr PATl::N1' I.AW?
.................................. Goodmim 797 The power ofprofessional sports commissionm to detmnim' what is
in the interests" of their respectjll(! sport is II signifitanr asped of
CONT"-NT PROVll}E NS' S;;CONDAKl' LIAIIIl.rrr: A SOCIAl. sports today, and can be traced back to 1921. the fttk,-al (ourts
NlT\\'ONK PEItSPOCTIV E authorized then-Commissioner XtmesaD' MOImtain Landis to act wilh II
.......... Af;chal Lari broad range of discretion in protecting the "best interests" of baseball.

Page 113 of 132

",is precedent set in Illation a long history of (ommnsionm Imng the
TH E Alit J ORDAN RUUS: IMAGE ADVERTtSING ADOS NEW DIMENSION "best in1msts" oftM game porr to Ilttomplish variOIlS goals, ond most
TO RIGHTOl' Pull ucrryF IIl'\T AMNOMI::NT TENSION recently has bfflf uffd to discipline players for alleged miscqndUcl. The
.................. .sup/f(N AkKrllY). JIPUlIJlIlIf Got'u, fs FmIm"U Kriluss CoII/lllusioner of the National Football Leaguc, Hog" Goodell, has re-
'" unIfy bn criticized both for using this POTJltT to initial dimp-
and also for llsing his fXTiJ'n'" und" Article XLVI NFL's Col-
NOTES lective Bargaining Agrfflnntt to twer1 for pl/nishflltllt that
penonalfy issues. This Nou /KlfP" allortd to NFL's
TH E FooltTH AM END.\IJ::NT bIPUCA'nONSON THE REALnME
Commission" under the League's Constitl/lion and Byla1J1s, the current
TIlACtaNG OFCUL PHONt:S THROUGH TH E USEOf''' STINGRAYS"
....... _.................... ___ ............ W. SnlIl Kim
Collective Bargaining Agr lIIntt, and the NFL's Pmonal Condl/ct
'" Po/icy. It also examines the NFL Commission" 's fJ01Der in headng an
A COMPARA1'IVE ANALYSIS OF THE NFL's DISCIPUNARY STIrucrURE:
TliECoMMISSIONER'S PoWER AND rul' EIlS' RIGHTS N0I6,nd Articles Editor, F""'''''", Pmptrry, '"tllia fI E"tmIlirr...nrt Ur.
,w,.,...,I, Volume: XXVU,J.D. Candidate, Fordhl m Unj.,crsity School ofl..a ... , 2017; a.s.,
...... Colt Rmklr 1051 Businn!l M'nog=ent, PeMSjI... ni..a S,.te Uni"ersity, would like to Ii", thank
PmfCi&Or Jomes Brudney for all of his conWUl:tr., f\hck . nd his
Ihroughoullhe "Tiling process. [ ...ould li ke to thank the tPLJ XXVI Editorial &.rd, . nd
St:o.ff, O'Kfe, KaThryn Rosenberg, Eli;cabeth ror thcit
ronst.nt guidance .nd ... I h:ad . ny quesTions or Wlly,.nd
mo51 impon.ntly, [ "",uld like \0 thank my Ed . nd lad my bro,hers,
D)I ..n and Jlck, for Ihcil consislem and posili,'c (lUtiook, and lOr . I.....)s
being there ... hen I them the tnO!'l.
lOSt
 SOURCE K
CESSION OF LOUISIANA
Treaty signed at Paris April 30, 1803
Ratified by France May 22, 1803
Senate advice and consent to ratification October 20, 1803
Ratified by the President of the United States October 21, 1803
Ratifications exchanged at Washington October 21, 1803
Entered into force October 21, 1803
Proclaimedby the President of the United States October 21, 1803
8 Stat. 200; Treaty Series 86'
TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE
FRENCH REPUBLIC
The President of the United States of America and the First Consul of
the French Republic in the name of the French People desiring to remove all
Source of misunderstanding relative to objects of discussion mentioned in
the Second and fifth articles of the Convention of the 8 th Vend6miaire and
9/30 September 1800 ' relative to the rights claimed by the United States
in virtue of the Treaty concluded at Madrid the 27 of October 1795,' between
His Catholic Majesty, & the Said United States, & willing to Strengthen
the union and friendship which at the time of the Said Convention was hap-
pily reestablished between the two nations have respectively named their
Plenipotentiaries to wit The President of the United States, by and with the
advice and consent of the Senate of Said States; Robert P. Livingston Minister
Plenipotentiary of the United States and James Monroe Minister Plenipo-
tentiary and Envoy extraordinary of the Said States near the Government
of the French Republic; And the First Consul in the name of the French
people, Citizen Francis Barb6 Marbois Minister of the public treasury who
after having respectively exchanged their full powers have agreed to the
following Articles.
ARTICLE 1
Whereas by the Article the third of the Treaty concluded at S' Idelfonso
the 9t Vend-niaire an 9/1 t October 1800 ' between the First Consul of
the French Republic and his Catholic Majesty it was agreed as follows.
For a detailed study of this treaty, see 2 Miller 498.
'TS 85, ante, p. 801.
8 it in the name of the French Republic to the Commissary or agent of the
TS 325, post, SPAIN.
'For text, see I Malloy 506.
CESSION OF LOUISIANA-APRIL 30, 1803
"His Catholic Majesty promises and engages on his part to cede to the
French Republic six months after the full and entire execution of the condi-
tions and Stipulations herein relative to his Royal Highness the Duke of
Parma, the Colony or Province of Louisiana with the Same extent that it
now has in the hands of Spain, & that it had when France possessed it; and
Such as it Should be after the Treaties subsequently entered into between
Spain and other States".
And whereas in pursuance of the Treaty and particularly of the third
article the French Republic has an incontestible title to the domain and to
the possession of the said Territory-The First Consul of the French Republic
desiring to give to the United States a strong proof of his friendship doth
hereby cede to the said United States in the name of the French Republic for
ever and in full Sovereignty the said territory with all its rights and appurte-
nances as fully and in the Same manner as they have been acquired by the
French Republic in virtue of the above mentioned Treaty concluded with his
Catholic Majesty.
ART: II
In the cession made by the preceding article are included the adjacent
Page 114 of 132
Islands belonging to Louisiana, all public lots and Squares, vacant lands and
all public buildings, fortifications, barracks and other edifices which are not
private property.-The Archives, papers & documents relative to the domain
and Sovereignty of Louisiana and it dependances will be left in the possession
of the Commissaries of the United States, and copies will be afterwards given
in due form to the Magistrates and Municipal officers of Such of the said
papers and documents as may be necessary to them.
ART: III
The inhabitants of the ceded territory shall be incorporated in the Union
of the United States and admitted as soon as possible according to the prin-
ciples of the federal Constitution to the enjoyment of all the rights, advantages
and immunities of citizens of the United States, and in the mean time they
shall be maintained and protected in the free enjoyment of their liberty, prop-
erty and the Religion which they profess.
ART: IV
There Shall be Sent by the Government of France a Commissary to Louisi-
ana to the end that he do every act necessary as well to receive from the
Officers of his Catholic Majesty the Said country and its dependances in the
name of the French Republic if it has not been already done as to transmit
United States.
 SOURCE L

Page 115 of 132

 SOURCE M

Page 116 of 132

Page 117 of 132
Page 118 of 132
 Page 119 of 132
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TREATIES ,\l\!l)
,\ND O TI-1 I, 1/.
OTHloR .\ C rS SERIES 130')4
ACrS
Optio. .1ProtoeoI
... die C.,."ntHt.
Protocol to doe CuvutMt. o. die IUt;llh of
oa doelUt;lIb <lIUd
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_ tIM
liM i.volve_t
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77w SI_u PIII'tIu
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to IM,.-
CH ILD RIGHTS
CI-IILD RI G HTS by Ibc
by for "'" c-ion
ouppo>rt for
"""""' ConwMion onon !he Riahts or die OUIcl,
the RitJa auld.
demonItnIiJIc ItlC widaprud 0l'IIIIfftiImmI1hII niJIs lO,mve
thII exiJls the promotion
lO,uiw fur 1he protecIion of
promOOon nI protecIIon
In vo lve lll c nt or
l.nvolvClllcnt Childrcn
ofChi ldrcn in !be rIpts orebe dlild,
Illuiptsoflbe
Arm cd Conflict
Armcd
......
A...,.,....,
.11-#..."" _ ..
iu.. 0.0'
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chIldrao -...quIre
chi ........ wiIlInlll
wiIlIout diltind ......
dillioc:tioa,
MId eallina !or
opedooI poOUCtioII. ond
""'ir
_II .,. fur
.. well
eonci..-.
Cor-.ci1lUOlll
r... their clevclopment Md
developmenl lad
alucation
codllClllion ill concIitiou orpace
in conditioa IIId .-iry,
ofpace Ind 1eCllri1y,
Dbllll'_d 1wm1W ....
VIc '-"aM
/)blwHd by Ihc ond widespreooIJq.;1 of om>od. oonftlel
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pne:ratly MvI",I.q"i6c.nt __
ouch .let-II IiDCI
childlm, 1UclI.1C'-k
of childlaL, ond boIpilab.

Page 120 of 132

Op.ional
Optional P'OIocul
Protocol .he NDlIt/f the ..sopoon
NDiIItf 8doption or SIaMC of tile
of the SlIMe the 1-uonaJ Crimia&I IOd, in particular,
Crimillll Court IIId, ptrtieullr, its
UN ITED
UNITE D STATES OF AMERICA
STAT ES 01' AME R I CA iIdIIIion.,..
iadUJion.,.. _crime or eIIliltin&
ellliItln& ebildlea
chlldn:ra uocIer!be
UDCIer the . . of 15 yen ........
... or ...... 1hm
them
to f'II'IlcipN!
10 portkipMO KIi ... ly ill
ICIiwl)' '-tilitico in boIh
in '-ilitia inlemllionll """"'II
inRmaIlorIII ............inl8rrlMioall
both inlanaIiorIII umed con!llctt.
COII!Ilctt,
"nd
and OT H E R GOV E RN MENTS
GOVERNMENTS
CoouIdrr/Itf, Iborefore,
Ihmfore, !hit 10to IIftIIIIhcD 1IInhcr!be implemtntation of ri",,"
IIInhcr the implemtnlalion riahts recopiad in
the CoxrmIOon "'"
1he on 1he RiaI* of
the RijhcI Cbild.1here is need
tile Chil41!1ere
oflbe nc:ed 10 incneIe 1he
the proIeCtion
proIection of chiklrm from
tbiklml &om
invol_ in --.I--.!-'lid,
coaIlid,
D""" New Y"rk ),,1>)' 25,:!OOO
article I of
NOli. !lOll .niele
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tho C-no..
oftbo on the Riahts "fthe
tho Rlahts OhM Child .,...;r,...,1hM.
Jptcifiea 111M, (or
for 1he
the
JNI1IOICI "r
JIW'POICI of IhII ConellliOll, cllild ."..,.
II1II CooeOOOIl, _ ewzy """""
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_ _ bcin& of II y-.
tho "" yen ..
IMIeu.
leu,
child, majority is IIIlaincd
under the law II'PIicebk 10 the dlilcl, llllaincd CI.ilicr,
CIilia',
of illlO
1Il10 ImIed
m. ...
Co:>orrIIImt m.c ... opIIonaI
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r - .....
Irmed forces _ thrir
Ibc CorrvenIIoa .
IIIc
tbrir J*lici1*lon
fIisIa&
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boAililics will
\be:.
. . . Ibc: ... orposslble
ofpoPlblc " '""'_
roo;naj_
effective/)' 10 !be
wilt conaibw effcctiwty the
impknocntDIn of the pinciple. tho best
pinciple thII the befI inIm:Jta of the child
orllle c:Ilild _ 10 be.I pi.,..,.
to be pi"*)' considention
COIIIidention
in oIl..:Uans
In oIllC1iaoJ childrm,
chilclrm,
N""'w IhIt !be -,..oixIh
the -,..sixtb irncm.Iionai Conference ofthc Red en..
iDtcm.Iionai Cool'enn=e en.....d
and R.aI CrtICenI in
Reel CreIcmI
Dece:mba' 1m
Decemhor 1995 .........
,...........,
net ...... 1_,
,_"'''', c:onIIlcI takeevay
putles 10 c:onfIicI
..10, thot putlea take eva)' fasibleJU:plO"",,,"
fasibk *p 10 """"
IhIl chiklml uncia'
thIl chiklren II r-s
tho: fISC of 18
un6ct the.., pan in hostilities,
yean do IlOl take ..., hosblities,
WdtolnUrg the
W.lro./nf IIfIIIIimoua acIop6oa, 10
\he 1IfIIIIi_ ill June: 1999.
1999, of 1n\t!:maI;.;...! Labour
Labow 0rpnizIti0n
Orpnization
Conallion No. 1'1
Con_ion \he l'TObibition
11:1 on the Prohibition II\d IInIDOdiaIc Action for
-.I ItI\Inediuc \he Elimi
tor tho: ....ion of tile
Eliminolion \he WOftI,
Wont
f_ofChild 1..aIIow, whiclo
FonuofChlklLabour, proht"bil!,
whlclI proho 'bilS, W.,.
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..-..ted COII/lkt,
... in
IImIed
\lie COII/1kt,
TIAS 13094
Senate Treaty Number 106-37
Page 121 of 132
 SOURCE P
CONTENTS
BERKELEY TECHNOLOGY LAW JOURNAL
A CONTINUA TION OF HIGH TECHNOLOGY LAW JOURNAL
EFFECTIVE VOLUME 11

VOLUME 11 NUMBER 1 1996

ARTICLES
Seeking Shade in a Land of Perpetual Sunlight:
Privacy as Property in the Electronic Wilderness
Patricia Mell ....................................................................................... 1

Liabilities of System Operators on the Internet

G iorgio Bovenzi .............................................................................. 93

Liability for Distributed Artificial Intelligences

C urtis E.A . Karnow ........................................................................... 147

BOOK REVIEWS
Science at the Bar: Law, Science, and Technology in
America by Sheila Jasanoff
Reviewed by Duane R. Valz ............................................................. 205

McCarthy's Desk Encyclopedia of Intellectual

Property,Second Edition by J. Thomas McCarthy
Reviewed by Elizabeth E. Launer .................................................... 219

Page 122 of 132

BOOK REVIEW
SCIENCE AT THE BAR: LA W,SCIENCE, AND
TECHNOLOGY IN AMERICA
by SHEILA JASANOFF
HARVARD UNIVERSITY PRESS, CAMBRIDGE, MA
285 PAGES; $29.95
REVIEWED BY DUANE R. VALZ "

INTRODUCTION
Science and technology are two of the most powerful institutions
in modem life. Over the course of the last century, their growth has
propelled the pace of American economic development and has been
instrumental in consolidating our nation's position as a geo-political
leader.' Consequently, science and technology have captivated the
public's outlook with visions of unyielding progress and boundless
material prosperity. Nonetheless, Americans do not tend to regard
these two institutions with untempered optimism. Traditionally, we
have been wary of science and technology's ominous potential and
deleterious side effects-whether expressed in paranoia about an
authoritarian future where science and technology become instruments
of oppression,2 concerns about nuclear annihilation and ozone
depletion, or more immediate fears that cellular phones may cause

1996 Duane R. Valz.

t Candidate for J.D., 1996, Boalt Hall School of Law, University of California,
Berkeley; B.A., 1993, University of California, Berkeley.
1. See generally CHRISTOPHER FREEMAN, ECONOMICS OF INDUSTRIAL INNOVATION (2d
ed. 1982).
2. See, e.g., GEORGE ORWELL, 1984 (1949); Robert D. McFadden, Times and The
Washington Post Grant Mail Bomber's Demand, N.Y. TIMES, Sept. 19, 1995, at Al. This
article refers to "Industrial Society and Its Future," the 35,000-word manuscript
submitted to The New York Times and The Washington Post by UNABOM, the notorious
mail-bomb terrorist. The tract sketches "a nightmarish vision of humanity enslaved
by machines and society deteriorating under the influence of the industrial system
and modem technology." Id. The two newspapers, conceding to the bomber's threats
to send out more mail bombs, published the manuscript in a special supplement to the
Sept. 19, 1995 daily edition of The Washington Post.

Page 123 of 132

206 BERKELEY TECHNOLOGY LAW JOURNAL Vol. 11:1

cancer. 3 Another distinctive feature of American culture is our

willingness to seek legal redress for all manner of conflicts, from
personal injury cases involving tangible harm 4 to cases involving
broader moral or ideological grievances.' Thus, Sheila Jasanoff
asserts, "[it is hardly surprising that in an age of anxiety about the
products of science and technology the U.S. public has increasingly
turned to law to reassert control over the processes of scientific and
technological change or to seek recompense for the failed promises of
6
technology. "
The many ways in which the law has come to influence the
institutions of science and technology is the subject of Science at the
Bar, Jasanoff's latest work. Professor Jasanoff is Chair of the
Department of Science and Technology Studies at Cornell University.
It is perhaps not a novel observation that science and technology
often cross paths with the law and significantly affect the dynamics
of legal practice. In the courtroom, scientific practices and
technology-related harms are increasingly the subject of litigation.7

3. See John Schwartz, Court Call Favors Cellular; Judge Throws Out Claim of Link to
Brain Cancer, WASH. POSr, May 20, 1995, at A2 (discussing public concern about the
potential link between cellular phone signals and cancer and referring to Reynard v.
NEC Corp., 887 F. Supp. 1500 (M.D. Fl. 1995), a case in which a plaintiff's claim that
his wife's brain cancer was partially or fully owing to her use of a cellular telephone
was denied for lack of evidence establishing causation).
4. See, e.g., Waters v. Ford Motor Co., No. 95-3891, 1996 U.S. Dist. LEXIS 3050
(E.D. Pa. Mar. 13, 1996) (holding that plaintiff's suit against Ford for opting not to
install airbags in their 1985 Mustangs was preempted by Federal Motor Vehicle
Safety Standard 208, 49 C.F.R. 571.208 (1984), which accorded auto manufacturers
at that time the choice of installing any of several passenger restraint systems in
their cars); Dan Shaw, Coffee, Tea or Ouch, N.Y. TIMES, Oct. 12, 1994, at C1 (describing
a New Mexico case in which a jury awarded an 81-year-old plaintiff almost $2.9
million in punitive and compensatory damages for the third-degree bums she
sustained when a cup of coffee she purchased at a McDonald's restaurant spilled in
her lap).
5. See, e.g., Animal Legal Defense Fund v. Quigg, 932 F.2d 920 (Fed. Cir. 1991)
(holding that plaintiffs seeking policy declaration by the United States Patent and
Trademark Office that animal species are per se unpatentable lacked proper standing
upon which to bring suit); Edwards v. Aguillard, 482 U.S. 578 (1987) (holding that a
law providing that evolution may not be taught in public schools unless equal time
was given to theories of "creation science" violated the constitutionally required
separation of church and state).
6. SHEILA JASANOFF, SCIENCE AT THE BAR: LAW, SCIENCE, AND TECHNOLOGY IN
AMERICA 4 (1995).
7. See, e.g., Lotus Dev. Corp. v. Borland Int'l, 49 F.3d 807 (1st Cir. 1995), aff'd
without opinion by an equally divided Court, 116 S. Ct. 804, reh'g denied, 64 U.S.L.W.
3592 (1996) (holding that the menu command hierarchy of a popular computer
spreadsheet program was not copyrightable and hence that the plaintiff had m
valid infringement claim); Foundation on Economic Trends v. Heckler, 756 F.2d 143
(D.C. Cir. 1985) (mandating that the defendant prepare an environmental impact
statement before experimenting with genetically-engineered frost-inhibiting bacteria).

Page 124 of 132

 SOURCE Q
FR1DAY. JANUARY 13. 2017 THE ATLANTA JOURNAL-CONSTITUTION CREDIBLE. COMPElLI NG . COMPLETE . 85
MORO
CLOSER I-OOK
n. .......... __
Garlljsbments decline more deeN dln 201 S,lIfterthe_iaw_called
.-..tItutIonaL
tban to percent in 20t5
Year NumberofaatnlshrnentS Percent change
2008 53.484 down 1.9 percent
2009 53.160 down 0.6 percent

Page 125 of 132

2010 58.995 up 11 percent
2011 68.672 up 16.4 percent
New law clarifies 22 percent. More garnish That move temporarily explains how quickly it can 2012 67.336 down 1.9 percent
confusing aspects ments have been filed In kept businesses from get be recovered if it is taken 2013 69.089 up 2.6 percent
Gwinnett tban In any other tIng the money they were improperly. It describes what 2014 76.174 up 10.3 percent
of state process. county in the state since at owed, but ensured that pe0- a debtor should do Ifexempt 2015 67,743 down 1 1.1 percent
least 2007. ple who owed debts would money has been taken and
By Ariel.. Kus In September 2015, a fed not have money taken that explains the redress debtors GarnllhnlentllnGwlivwuCoullt,whIch bu .......
akass@ajc,com eraI judge declared t1he state was restricted from garnish. would have. It specifies that
law unconstitutionaj and ment. a hearing should be held no
The number of garnish halted most garnishments A new law, which went more than 10 days after a ,....clecr
ments filed statewide fell in Gwinnett County. into effect last year, fixes a claim is filed. And the law
in 2015, The judge's moratorium number of issues with the requires debtors to be noti Year Number of prnlshments Percent change
According to the Adminis on most garnishments lim old law: the original version fied about what money can't 2008 6.321 up 2.1 percent
trative Office of the'Courts,. ited the number that were didn't require creditors to teD be taken and what appeals 2009 5.687 down 10 percent
the number ofgarnishments filed in Gwinnett between debtors that some money are available. 2010 12.373 up 117.6 percent
filed in Georgia in 2015 was midSeptember 2015 and - like Social Security bene- It also prompt 2011 22.186 up 79.3 percent
down 11 percent from 2014, midMay 2016, when the, fits, welfare payments and bearings wben tbe court 2012 up 1 1.3 percent
Numbers for 2016 wiU nor be new law went Into effect. workers' compensation - is receives a claim of improper 2013 25.530 up3.4percent
available until late this year. Some other counties tern offlimlts tl> garnishments. garnishment and a quick 2014 23,477 down 8 percent
In Gwinnett County, gar porarlly restricted garnish It clarifies what money return of improperly taken 2015 18.384 down 21.7 percent
nishments were down nearly ment filings, as well. in accounts Is exempt and funds.
GEORGIA POLITICS
Re uhliC!J..D ... ___
Bernie Sanders to
 SOURCE R
35 U5T ) Iceland- Fisheries Off the U.S. Coasts- Sept. 21, 198'1 5845
TMe OOVU WHNT OP ur
UE Of Ot I cn.o,NO
CONCUl .... OfF THE ';<> ... ST5
uf T HE UNITED sr.o,TES
conlld . . I"O ,n.l , e","",Oft eone. . n f o r tn. <ltlon.1
Roeo<;nl z ino , h. . t he United Stu n h. . u .. by
p'elidentlol HOc 1.... . lon of 10 . 191J('] . n ..
leono .. lc . Onl ... I t "io. 100 nlutlc" 1 d i ll o f IU co. . . . " Ithln
" hlen tnl unltlO Hat .. n . . 10vI . . I\ln riOh" to ...
. . ploit. eon U ..,. 1 M .. enlo e I II f h h 1M tnot tnl unitod
S t ltU I\aO nil lueh OM I OvH th l I!vino ,uou<o" of tne
ICELAND contlnl" "1 'hllf .\>por . . lnlnll to tH St"''' .nO t o

Page 126 of 132

Fisheries Off the United States Coasts
Agreement BIgMdat Washington September 21, 1984,
Entered Intoforee NOl,Jembl!r 16, 1984.
With allnu and agreed minute.
TIAS 11032 (6844)
anIO<oIOOU' . ... el . . of fi.n oC UnltoO s .. t . . orioln, end
00.1'0<11 of U"bll' n !nl/ ..... on.bl. <era. and conOltion.
pH"ln lnl/ to fI"""d .. of .. utUI' conelrn OVIr "h len tn.
Hl vl " 0'"'" . 1 Co ll o ... . ,
I F.de",1 R.t",.,r. Vol. 48 . No. 50. MIf. 14. 1983.
TIAS ll OS2
 Page 127 of 132
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 SOURCE S
BAR JOURNAL
H A W A I I
TA B L E O F C O N T E N T S
VO L U M E 2 0 , N U M B E R 4
A N O FFICIAL P UBLICATION OF THE H AWAII S TATE BAR A SSOCIATION EDITOR IN CHIEF
A PRIL , 2016 $5.00 Carol K. Muranaka ARTICLES
BOARD OF EDITORS
Christine Daleiden 44 Access to the Sun: Envisioning the Policy Framework for Hawaiis
David Farmer Emerging Community Renewables Program
Susan Gochros
Ryan Hamaguchi by Melissa Miyashiro
Cynthia Johiro 19
Edward Kemper
Laurel Loo
18 From One Paradise to Another: A Cross-Cultural Conversation on
Melvin M.M. Masuda Traveling from Suzhou to Hawaii
Melissa Miyashiro
24 by Mark T. Shklov and Nathan C. Yang, with Xinhua Di
Access to the Sun
Eaton O'Neill
Lennes Omuro
Brett Tobin 24 Gifts from Clients: Yes or No
Jodi Kimura Yi
by Lennes N. Omuro
Emerging Community HSBA OFFICERS
Renewables Program
President
Jodi Kimura Yi
President-Elect
OF NOTE
Nadine Ando
Vice President 14 Court Briefs

Page 128 of 132

Howard Luke
Secretary 20
16 HSBA Happenings
Russ Awakuni
Treasurer 22
22 Case Notes
Mark M. Murakami
29
28 Notice for Reappointment of Incumbent
YLD OFFICERS Magistrate Judge Kevin S.C. Chang
President 30
Ryan Hew 30 Hawaii Access to Justice Conference
Vice President/President-Elect 31
Trejur Bordenave 30 Off the Record
Secretary
Catherine Taschner 31 Classifieds
Treasurer
Ryan Loeffers
EXECUTIVE DIRECTOR
Patricia Mau-Shimizu
GRASS SHACK PRODUCTIONS
Publisher
Brett Pruitt
Art Direction
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Production On the cover: Life is a Tangle By Patrice A Federspiel. Born in a small Wisconsin town, Patrice moved to Hawai`i
Beryl Bloom in the year 2000 to follow her dream of being a full time, professional artist.Today Patrice paints, teaches, and mar-
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across the country. Patrice holds a BS in Art Education from the University of Wisconsin Madison. She is a sig-
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Hawaii Bar Journal is published monthly with an additional
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1000, Honolulu, Hawaii 96813. Carol K. Muranaka at carol.k.muranaka@gmail.com. All submitted articles should be of significance to and of interest or concern to
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Access to the Sun:
the Policy Framework
for Hawaiis Emerging
Community Renewables
by Melissa Miyashiro
The growth of
Hawaiis solar power
market is one of the
states best clean
energy success sto-
ries. As of January
2016, the Hawaiian
Electric Companies
had installed more than 77,000 solar
photovoltaic systems across the state,
accounting for 17 percent of all cus-
tomers.1 Yet, while many homeowners
have been able to use solar power to
break free from the volatile energy costs
of fossil fuels, many other Hawaii resi-
dents are currently unable to directly
participate in renewable energy because
of their location, building type, access to
the electric utility grid, or other impedi-
ments. Roughly half of Hawaii house-
holds cannot access solar power because
they are renters, live in a condominium,
or live on a saturated circuit where
4 April 2016 HAWAII BAR JOURNAL
Envisioning
Program
new solar installations are being delayed
or banned.
After years of legislative attempts,
Hawaii passed Act 100 in 2015, to help
balance this inequity. Act 100 laid the
foundation for a community-based
renewable energy program in Hawaii by
directing electric utilities to file a com-
munity-based renewable energy tariff
with the Public Utilities Commission
(PUC).2 Act 100, 27th Leg., Reg. Sess.
(2015). The language in the Act sets a
bold vision for community renewables,
calling for dramatically expanding the mar-
ket for eligible renewable energy
resources to include residential and busi-
ness renters, occu-
pants of residential
and commercial
buildings with shad-
ed or improperly
oriented roofs, and
other groups who
are unable to access
the benefits of
onsite clean energy
generation. Id. 1 (emphasis added).
The legislature further found that it is in
the public interest to promote broader partici-
pation in self-generation by Hawaii residents
and businesses through the development
of community-based renewable energy
facilities in which participants are enti-
tled to generate electricity and receive
credit for that electricity on their utility
bills. Id. (emphasis added).
The PUC took that bold mandate to
heart and responded to the Hawaiian
Electric Companies proposed tariffs by
opening an investigative docket to deter-
mine whether the proposed tariffs com-
including the policy framework exam-
ples that follow.
Virtual Net Energy Metering
If a primary goal of a community
power program is to broaden participa-
tion in renewable energy, then the
proven net energy metering (NEM)
concept is an obvious starting point.
NEM programs allow utility customers
to generate energy at their home or busi-
ness and pay their monthly electric bill
based on the net energy consumed. In
other words, the monthly electric bill is
generally based on the number of kilo-
watt-hours consumed, minus the num-
ber of kilowatt-hours generated. The
simplicity and cost-effectiveness of this
model has enabled the NEM concept to
take off around the country.
For all its successes, a drawback of
the NEM concept is that not all commu-
nity members can generate energy at
their home or business. This limitation
has primarily taken the form of limited
roof space to install solar panels. By
dramatically expanding the market to
renters and other groups that are cur-
rently unable to access onsite renewable
energy generation, Act 100 is specifically
targeted at this inequity. See Act 100 1.
The most direct path to addressing this
inequity is to open the NEM program
structure to consumers who generate
energy at a location other than their res-
idence or business. Under this commu-
nity net energy metering concept, sub-
scribers in a community-based energy
project would receive electric bill credits,
in proportion to their pro rata subscrip-
tion interest in the project and the gen-
eration output of the project.
As of October 2015, similar con-
cepts were in place in a number of other
states under various labels such as com-
munity solar gardens, virtual net meter-
ing, and neighborhood net metering:
California, Colorado, Connecticut,
Delaware, D.C., Illinois, Maine,
Maryland, Massachusetts, Minnesota,
New Hampshire, New York,
Pennsylvania, Rhode Island, Vermont,
and Wisconsin. See Institute for Local
Self-Reliance, Updated: States
Supporting Virtual Net Metering,
6 April 2016 HAWAII BAR JOURNAL
http://ilsr.org/virtual-net-metering/ Such variations are nearly endless
(last visited Feb. 24, 2016). and can include specifications such as:
In some of these states, virtual
a minimum and maximum number of
NEM is open to all or nearly all cus-
subscribers in a project;
tomers (e.g., in D.C., Maine, New
Hampshire, Pennsylvania, and a minimum and maximum size of each
Vermont). Id. In other formulations, it individual subscription;
is open only to limited sectors (e.g.,
California for multi-tenant properties a maximum percentage of the capacity
and local governments only; Maryland of that project that can be devoted to
any one subscriber;
for agricultural, nonprofit, and local gov-
ernments only). Id. New York has
adopted a hybrid approach, with com-
who may own or operate a project;
which utilities must offer community-
munity distributed generation set to uti-
lize a virtual NEM-like customer bill
based power programs; and
credit, but with interconnection priority
given to projects that are deemed inno-
an aggregate capacity limit for all
power projects in a given program.
vative because they (i) are at sites
where they will bolster grid reliability or Together, the resulting menu of options
provide other locational benefits or (ii) allows tailoring of community-based
power programs, adjusting the virtual
promote low-income customer partici-
pation by ensuring that at least 20 per- NEM concept to fit local conditions.
cent of project participants are low-
Value of Solar and Other Ways
income utility customers.8
Page 129 of 132
Even where the concept of sub- of Valuing Community
scriber bill credits is set by a virtual Renewables
Much like the traditional NEM con-
NEM program or similar policy, com-
munity-based power can encompass cept is expected to undertake a transition
toward market-based valuations of ener-
numerous other variations. For exam-
ple, Minnesotas legislation constrains gy exported from rooftops to the energy
grid, one variation of the virtual NEM
virtual NEM (and traditional NEM)
concept involves subscriber bill credits
projects to a capacity limit of one
that are based on factors other than the
megawatt. Minn. Stat. 216B.1641,
subscribers interest in a power-generat-
216B.164 subd. 3(a). Maine set a much
ing facility.
larger project capacity limit for virtual
Hawaiis 2015 community-based
NEM projects, at ten megawatts. Me.
renewable energy legislation (Act 100)
Rev. Stat. tit. 35-A, 3603(2)(a).
favored this approach. Under Act 100,
Colorados approach to communi-
subscriber bill credits are to compen-
ty-based power includes a geographic
sate those customers for the electricity
limitation, generally requiring a project
and electric grid services provided to the
to be located within the same county as
electric utility and provide fair com-
subscribers or an adjacent county. Colo.
pensation for electricity, electric grid
Rev. Stat. 40-2-127(2)(B)(II).
services, and other benefits provided to
Massachusetts neighborhood net meter-
or by the electric utility, participating
ing legislation requires that a project and
ratepayers, and non-participating
its subscribers must be located in the
ratepayers. Haw. Rev. Stat. 269-
same neighborhood. The law defines
27.4(c)(2)-(3). Unfortunately, this for-
neighborhood as a geographic area
ward-looking approach may have ulti-
including and limited to a unique com-
mately delayed implementation of com-
munity of interests that is recognized as
munity-based renewable energy in
such by residents of such area and
Hawaii. The resulting utility proposals
defers to the department of public utili-
affixed a specific (low) value to energy
ties to further refine this geographic lim-
generated by the projects, and attempted
itation. Mass. Gen. Laws ch. 164,
to account for this by unrealistically
164-138, -140.
Page 130 of 132
 [Vol. 2: 34

NOTE
The Basic Institutional Structure of LAFTA
and the Proposals for its Modification:
Inter-governmentalism vs. Regionalism
I. INTRODUCTION

T HE LATIN AMERICAN Free Trade Association (LAFTA) was

established by the Treaty of Montevideo, signed on February
18, 1960, by Argentina, Brazil, Chile, Mexico, Paraguay, Peru, and
Uruguay.' Article 58 provides for the accession of other Latin
American States. Bolivia, even though an original participant in
the drafting of the Treaty, did not finally accede until 1967, in
spite of special dispensations extended to her by Protocol No. 5.
Ecuador and Colombia acceded in 1961, followed by Venezuela in
1966.
The signatory States express their determination in the Pream-
ble: "to persevere in their efforts to establish, gradually and pro-
gressively, a Latin American common market and, hence, to con-
tinue collaborating with the Latin American Governments as a
whole in the work already initiated for this purpose...." In addi-
tion, the Preamble states that the signatories are: "Motivated by
the desire to pool their efforts to achieve gradually complementary
and integrated national economies on the basis of an effective re-
ciprocity of benefits ...... Within the body of the Treaty, Article
54 refers again to the goal of a common market:
The contracting Parties shall make every effort to direct their
policies with a view to creating conditions favorable to the estab-
lishment of a Latin American common market. To that end, the
Committee shall undertake studies and consider projects and plans
designed to achieve this purpose, and shall endeavor to coordinate
its work with that of other international organizations.

1 The Treaty went into effect on May 2, 1961, the date when the signatories de-
posited their respective instruments of ratification with the government of Uruguay.
Two originals of the Treaty were signed, one in Spanish and one in Portuguese, both
texts being equally authentic. English versions of the Treaty appear in: MULTI-
LATERAL ECONOMIC CO-OPERATION IN LATIN AMERICA, United Nations Doc. No.
E/CN.12/621 (1962), 57-69; INTER-AMERICAN INSTITUTE OF INTERNATIONAL
LEGAL STUDIES, INSTRUMENTS RELATING TO THE ECONOMIC INTEGRATION OF
LATIN AMERICA 207-29 (1968) [hereinafter IJILS INSTRUMENTS]; S. DELL, A LATIN
AMERICAN COMMON MARKET? 228-56 (1966); [hereinafter all references to the
Treaty are by article number only).

Page 131 of 132

1970]

CASE WESTERN RESERVE JOURNAL,

of
INTERNATIONAL LAW

Volume 2, No. 2 Spring 1970

CONTENTS
ARTICLES
THE APPLICABILITY OF COMMON MARKET ANTITRUST
LAW TO ACQUISITIONS AND MERGERS
KURT H. BIEDENKOPF

INTERNATIONAL EXECUTIVE AGREEMENTS:

THEIR CONSTITUTIONALITY, SCOPE AND EFFECT
ALFRED P. KNOLL-----------------------------

FORENSIC MEDICINE
THE MOMENT OF DEATH: AN INTERNATIONAL
MEDICO-LEGAL PROBLEM CONCERNING HUMAN
ORGAN TRANSPLANTATION
BYRON E. SIEGEL-------------------------------

ARTICLES NOTED ---------------------------

BOOKS NOTED ------------------------------

TABLE OF CONTENTS FOR VOLUME 2------------

The CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL LAW is published two

times a year (Winter and Spring) by the students of Case Western Reserve School of Law.
Subscription: $4.00 per year, domestic; $5.00, foreign. If subscription is to be discontinued at
expiration, notice should be sent to the Business Manager; otherwise it will be renewed as usual.
Single issues of the current volume are available for $2.50 from the JOURNAL. Back issues are
available from Dennis & Co., Inc., 251 Main Street, Buffalo, New York 14203.
Address correspondence to Case Western Reserve Journal of International Law, Case Western Reserve
University, Cleveland, Ohio 44106.
Copyright @ 1970 by Case Western Reserve University

Page 132 of 132