Current Issue: Issue 1 – Volume 72
Articles
Opting In, Opting Out: Autonomy in the Community Property States
Charlotte K. Goldberg, 72 La. L. Rev. 1 (2011)
“Sharing” is the concept that defines marital property in community property states. It means that property acquired during marriage is presumed to be community property unless proved otherwise. It means that the earnings of either spouse are owned by the community, not the working spouse. It also means management and control of community property is shared. Many couples do not even consider the community property ramifications of marriage. Marriage means opting in to the community property system, for better or worse. But, for some couples, community property concepts do not match their view of their financial life together. For those couples, there are many ways of opting out of the community property system even if sharing is legislatively mandated in community property states. Those ways of asserting their autonomy within their relationship may garner various degrees of success.
Distribution of Marital Assets In Community Property Jurisdictions: Equitable Doesn’t Equal Equal
James R. Ratner, 72 La. L. Rev. 21 (2011)
The hallmark of an American community property system, in contrast to common law jurisdictions, is that community property is owned in undivided one-half ownership by each spouse. In the event of a divorce, the undivided ownership interest needs to be divided. At first glance, it might sound simple–divide each asset 50/50–but nothing is ever simple when it comes to marital property. Although California, Louisiana and New Mexico require an equal distribution of the community assets, other community property jurisdictions, using various terms, call for equitable distribution of the community assets. But what is an equitable distribution, and how does it differ from an equal distribution?
What’s Fair in Divorce Property Distribution: Cross-national Perspectives from Survey Evidence
Marsha Garrison, 72 La. L. Rev. 57 (2011)
Americans are more likely to experience divorce than any other type of civil litigation. Nearly half of American marriages end in divorce, with the result that more than a million divorces are concluded in the United States each and every year.
Since the advent of no-fault divorce in the 1960s and 1970s, both divorce litigation and negotiation have focused predominantly on the distribution of property and debt. Many divorcing couples do not have minor children, and spousal support is today awarded only rarely. But virtually all divorcing couples have debts, and most have assets.
All divorce property-distribution systems aim to achieve a fair division of spousal assets. However, no consensus has emerged as to either the pool of assets available for division or the correct divisional principle. Property distribution schemes are highly divergent in the United States and abroad.
How Community Property Jurisdictions Can Avoid Being Lost in Cyberspace
Sally Brown Richardson, 72 La. L. Rev. 89 (2011)
Things have changed. Before tying the knot, a man in the 1950s might have owned a car, some furniture, a few pots and pans, a closet half-filled with clothes, and the money in his checking account. A woman entering holy matrimony in the 1970s might have had a car, some furniture, a few pots and pans, a closet filled with clothes, the money in her checking account, the money in her savings account, and a few shares of stock. By the 21st century, a couple walking down the aisle might each already possess a car, some furniture, a few pots and pans, a closet filled with clothes, the money in his checking account, the money in her savings account, shares of stock, a certificate of deposit account, two email accounts, one Facebook profile, and a blog. Things, quite literally, have changed.
Should Separate Property Gradually Become Community Property as a Marriage Continues?
J. Thomas Oldham, 72 La. L. Rev. 127 (2011)
“Community property” states do not always apply identical rules to determine the rights of spouses when a marriage ends. Indeed, as I have recently shown, there are some significant differences among these states. However, all of them adhere to the distinction between separate and community property. Premarital acquisitions by a spouse and property acquired by one spouse during marriage by gift or inheritance are separate property, and acquisitions during marriage due to the effort of either spouse are community property. The spouses each have a 50% interest in each item of community property from the moment of acquisition; separate property is solely owned by the acquiring spouse. At dissolution the community estate is shared, but separate property is not, regardless of the length of the marriage. Separate property remains separate, as long as it is segregated from other property, and the parties do not change title or sign a written agreement to change its character.
* * *
Some have begun to question this distinction. Various proposals have recently been made that, particularly in marriages of substantial duration, spouses at dissolution should share a portion or all of what would normally be considered “separate property.”
Community Property in Bankruptcy: Laws of Unintended Consequences
Margaret Dee McGarity, 72 La. L. Rev. 143 (2011)
When it comes to credit, most people expect to pay their debts and avoid any legal consequences, but it does not always work that way. Unemployment, divorce, and medical problems are leading causes of bankruptcy, and these are not always foreseeable when one incurs a debt. Similarly difficult to predict are auto accidents for which an individual is found liable, or business failures with substantial guaranteed debts or other personal liabilities. In community property states, all or most non-exempt community property can be recovered to pay the debts of one spouse if those debts were incurred for a community purpose, and most spouses in those states probably realize that. Several community property states have modified collection rules to protect certain types of property, especially for pre-marriage debts of one spouse, torts incurred by one spouse, or for non-community purpose debts. Nevertheless, the scope of creditors’ collection rights often surprises spouses. Many a heated dinner conversation has undoubtedly taken place when one spouse’s wages are garnished for a debt incurred by the other.
Community Property v. The Elective Share
Terry L. Turnipseed, 72 La. L. Rev. 161 (2011)
There is certainly no doubt that community property has its faults. But, as with any flawed thing, one must look at it in comparison with the alternatives: separate property and its companion, the elective share. This Article argues that the elective share is so flawed that it should be jettisoned in favor of community property.
Comments and Casenotes
Life After Gross: Creating a New Center for Disparate Treatment Proof Structures
Mark R. Deethardt, 72 La. L. Rev. 187 (2011)
One commentator has called disparate treatment law “fundamentally incoherent.” A better description is incoherent and impractical. Consider a 55-year-old African-American employee who is fired after filing a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that he was denied a promotion based on his race. This employee also has evidence that the manager who fired him frequently made racist and ageist comments. This individual has Title VII and Age Discrimination in Employment Act (ADEA) disparate treatment claims and a Title VII retaliation claim. Under the current state of employment discrimination law, this employee would have to prove each claim using a different proof structure. The results of these conflicting evidentiary structures are that the employee may have difficulty pleading and determining how to prove his claims, the judge may have trouble evaluating the sufficiency of the evidence and instructing the jury on each method of proof, and the jury may misunderstand the instructions and reach erroneous conclusions. Furthermore, the current system for proving employment discrimination prevents the employee from recovering damages for some claims even if the jury finds that the employer intentionally discriminated. A system riddled with such impracticalities is ill-suited for achieving the lofty goal of employment discrimination law, which is to place all employees on an equal footing by deterring discrimination and compensating its victims.
Waterproofing the New Fracking Regulation: The Necessity of Defining Riparian Rights in Louisiana’s Water Law
Laura Springer, 72 La. L. Rev. 225 (2011)
When Chesapeake Energy Corporation announced the discovery of an immense natural gas deposit, now known as “the Haynesville Shale,” Louisiana’s Mineral Board Secretary described the discovery’s impact on the state as “something akin to a modern day gold rush.” In place of pans, tents, and pickaxes came trucks, wells, and a flurry of property leases as energy companies rushed to capitalize on the shale. The venture made some Louisiana landowners millionaires overnight. Initial conservative estimates suggested that the Haynesville Shale may hold up to 200 trillion cubic feet of natural gas, equivalent to 18 years’ worth of current oil production in the United States. Other industry executives speculated that the deposit could be several times that size.
As industry responded to the Haynesville Shale, so did the Legislature. On July 2, 2010, Louisiana Governor Bobby Jindal signed Act 955 of the 2010 Legislative Regular Session into law. The Act grants the secretary of the Department of Natural Resources authority to enter into “cooperative endeavor agreements” for the withdrawal of running surface water of the state. In a cooperative endeavor agreement, the secretary reviews applications for water withdrawal and, if an application is approved, collects “fair market value” for the water withdrawn.
The Act specifically exempts a certain class of landowners from its purview: Act 955 has no effect on “any rights held by riparian owners in accordance with the laws of this state.” The “laws of this state” are ambiguous, however, and the Legislature does not otherwise specify which riparian rights Act 955 will respect. Consequently, riparian landowners and oil and gas companies might be uncertain of their legal rights, and therefore may circumvent the Department of Natural Resources’ mandate by conducting independent withdrawals pursuant to leases or other arrangements.
Water fuels natural gas extraction; thus, considerations of how and by whom water may be withdrawn are crucial for those involved in the Haynesville Shale venture. This Comment explores the extent of riparian rights in Louisiana, particularly whether riparian rights encompass the use of running surface water for hydraulic fracturing (“fracking,” in industry vernacular).
Greenlighting American Citizens: Proceed with Caution
Philip Dore, 72 La. L. Rev. 255 (2011)
Name-calling is hurtful. But when the Obama Administration labeled Anwar al-Awlaki as a “global terrorist,” it was a death sentence. According to various media reports, the Obama Administration has authorized the C.I.A. to use lethal force against al-Awlaki, a dual U.S.-Yemeni citizen. A U.S. drone attack targeted but missed al-Awlaki in May 2011. Approximately four months later, armed drones operated by the C.I.A. fired a barrage of Hellfire missiles at a car carrying him and at least one other person. Al-Awlaki and another American citizen, Samir Khan, were killed.
This Comment argues that the C.I.A.’s targeted killing of al-Awlaki is prohibited under 18 U.S.C. § 1119, commonly known as the foreign-murder statute. Although the Obama Administration might seek to avoid this prohibition by relying on the laws of war, this Comment concludes that any such reliance is misplaced for two reasons: (1) the particular laws of war on which the Administration must rely are non-self-executing, and (2) those laws have not been incorporated in domestic legislation. Consequently, the Administration must rely on the Authorization for Use of Military Force (AUMF) to justify violating the foreign-murder statute. The AUMF does not, however, provide the needed justification.
Sex Offender Assessment Panels: A Failed Attempt to Protect the Public From Louisiana’s Most Violent Predators
Brock Skelley, 72 La. L. Rev. 287 (2011)
In addition to requiring sex offenders to register, many states have enacted laws that allow especially dangerous offenders, commonly referred to as “sexually violent predators,” to be civilly committed to mental institutions after being released from prison. States institutionalize sexual predators not as a form of punishment but rather because these individuals lack control over their behavior and are often unable to abstain from committing further sex crimes.
In 2009, the State of Louisiana enacted its own sexual predator law (SOAP), whereby a “Sex Offender Assessment Panel” must evaluate each sex offender currently incarcerated in Louisiana and determine whether he is a “sexually violent predator.” Instead of resorting to civil commitment, however, the State will place those it deems predators on standard probation and electronic monitoring. Standard probation and monitoring are questionable methods of dealing with Louisiana’s most violent sex offenders. Like other states, Louisiana should confine these individuals and treat them for their underlying mental conditions.
News & Updates
Call for Papers — Coastal Land Loss in the Gulf Coast and Beyond
The Louisiana Law Review announces its 2012 symposium, Coastal Land Loss in the Gulf Coast and Beyond, which is scheduled for March 30th, 2012 at the Louisiana State University Law Center in Baton Rouge, LA.
The editorial board specifically seeks papers and proposals on the following legal issues and how they relate to the problem of coastal land loss. The board, however, will consider additional topics not listed. Proposals may address coastal land loss issues specific to the Gulf Coast as well as other coastal areas around the U.S.
Volume 72 Junior Associates Announced
The Louisiana Law Review Board of Editors is pleased to announce the Junior Associate Class of the Louisiana Law Review, Volume 72. The write-on competition was unusually intense this year, so please join me in congratulating your classmates. Your Volume 72 Junior Associates are . . .
New Louisiana Law Review Issue Explores Deepwater Horizon Incident
The Louisiana Law Review is proud to announce the release of a new issue dedicated to the explosion and subsequent oil spill on the Deepwater Horizon on April 20, 2010.
“Catch You on the Flip Side” Selected as Finalist for National Award
The Louisiana Law Review is proud to announce that Albert O. “Chip” Saulsbury, IV’s comment, Catch You on the Flip Side: A Comparative Analysis of the Default Rules on Withdrawal from a Louisiana Limited Liability Company was as selected as one of eleven national finalists by Scribes, “the American Society of Legal Writers,” for the Scribes Law-Review Award for best student note or comment. Scribes praised Mr. Saulsbury’s comment as being “well researched and clearly written on an important topic.”
Video Footage: Louisiana Law Review Hosts Community Property Symposium; Family Law Judges, Professors, and Practitioners Among Those in Attendance
The Louisiana Law Review hosted its annual Symposium on April 1, 2011 at the LSU Law Center McKernan Law Auditorium. This year’s symposium was titled “The Future of Community Property: Is the Regime Still Viable in the 21st Century?” More than 80 people attended the full day presentation, including two Baton Rouge family law judges and dozens of family law practitioners from all over Louisiana. The symposium was organized with the assistance of LSU’s Professor Andrea Carroll and featured presentations from prominent commentators from around the nation, including Marsha Garrison (family law professor at Brooklyn Law School and author of two widely used casebooks) and Charlotte Goldberg (professor at Loyola Los Angeles and author of a leading community property textbook).
Online Forum
Jury Selection–Law and Practice
When selecting a jury, simply put, an attorney must identify and strike those potential jurors who will—no matter what the evidence—decide the case based on prejudices which are inconsistent with the client’s interests. To do so, you must accept that the fundamental purpose of voir dire is to learn all the trial court will allow you to learn about potential jurors within the time frame and scope of questioning allowed. In sum, you want to know all you can about prospective jurors’ opinions, biases, and their approaches to making decisions.
