Current Issue: Issue 3 – Volume 72
Articles
The 2011 Diane Sanger Memorial Lecture– Protecting Investors in Securitization Transactions: Does Dodd–Frank Help, or Hurt?
Steven L. Schwarcz, 72 La. L. Rev. 591 (2012)
Securitization has been called into question because of its role in the recent financial crisis. I examine the potential flaws in the securitization process and compare how the Dodd–Frank Act treats them. Although Dodd–Frank addresses one of the flaws, it underregulates or fails to regulate other flaws. It also overregulates by addressing aspects of securitization that are not flawed.
Compulsory Licensing of Intellectual Property As Merger Remedy: A Decision-Theoretic Approach
Jennifer E. Sturiale, 72 La. L. Rev. 605 (2012)
Consistent with its goals of encouraging innovation and enhancing consumer welfare, antitrust law generally does not compel a firm to give access to the very assets that are the source of a firm’s competitive advantage, including a firm’s intellectual property, unless a firm has illegitimately gained some edge in the market. And yet, in the context of merger review, compulsory licenses are a fairly common remedy. The Federal Trade Commission and Department of Justice do not impose a compulsory license in every case, but the principles guiding the decision are not entirely clear.
This Article is suspicious of the benefits of a compulsory license and concerned about the costs. Ultimately, the agencies use compulsory licenses as a remedial tool to change the post-merger market dynamics. Although a remedial compulsory license may achieve the goal of restoring competition lost as a result of the merger, it may also undermine the merged firm’s incentives to innovate. This may undo the very benefits and efficiencies the merger hoped to achieve.
To take account of the uncertain effects of a compulsory license, this Article suggests the agencies adopt a decision-theoretic approach to the remedy phase of a merger analysis. The Horizontal Merger Guidelines issued in 2010 adopt an approach for reviewing mergers consistent with a decision-theoretic approach. But that process stops short of considering the potential effects of a proposed remedial mechanism. This Article recommends that the agencies extend the decision-theoretic analysis implicit in the revised Merger Guidelines and include consideration of the possible outcomes that can result if a potential remedy is chosen, the likelihood of those outcomes, as well as the magnitude of harm and benefits that will follow if those outcomes should come to pass. A decision-theoretic approach will enable the reviewing agency to take better account of the potential, but uncertain, outcomes of a potential remedy. Moreover, such an approach will discipline the agencies’ decision-making processes, ensuring that remedies are imposed only when they are actually likely to benefit consumers.
Stern v. Marshall––Digging for Gold and Shaking the Foundation of Bankruptcy Courts (or Not)
Katie Drell Grissel, 72 La. L. Rev. 647 (2012)
On June 23, 2011, the United States Supreme Court handed down Stern v. Marshall, which has quickly become the hottest topic in bankruptcy law in quite some time. This Article (1) briefly describes the historical authority of bankruptcy courts; (2) discusses the Supreme Court’s ruling and rationale in Stern; and (3) discusses the ramifications of Stern through the lens of recent case law discussing Stern, as well as other issues that have not yet been addressed by the courts. As will be shown in this Article, the majority’s pronouncements in Stern have led lower courts to widely disparate conclusions about the breadth of the Stern decision, and those pronouncements have also dealt a significant blow to the foundational authority of bankruptcy courts, the full effects of which have not yet come to fruition. At least for now, the United States bankruptcy system is still running, despite an unclear foundation for doing so.
Giving Credit Where Credit Is Due: Applying the Proper Set-Off Rules in FELA and Jones Act Cases After AmClyde, Ayers, and Schadel
Michael Mims, 72 La. L. Rev. 729 (2012)
Courts have recently begun grappling with a new issue in cases brought under the Federal Employers’ Liability Act (FELA) and the Jones Act: what sort of credit, if any, should a jointly and severally liable FELA or Jones Act defendant receive for settlements that the plaintiff has made with negligent third parties? Although this is a relatively new issue in FELA cases, courts have long considered this issue in other areas of federal law. In the seminal 1994 case of McDermott, Inc. v. AmClyde, the United States Supreme Court held that a plaintiff’s recoverable damages from a jointly and severally liable maritime defendant should be reduced by the proportionate share of damages attributable to a settling defendant. Under this method, the nonsettling defendant receives a “settlement credit” (also known as a “set-off”) in proportion to the settling defendant’s share of the injury, regardless of how much money the plaintiff actually recovered from the settling defendant. The AmClyde Court favored this set-off rule over the proposed alternative: the “pro tanto method,” under which the nonsettling defendant would receive a settlement credit for only the amount actually paid by the settling defendant, regardless of the level of fault attributable to each party.
Comments and Casenotes
Crafting an Asbestos Scheduled Compensation Solution for Louisiana and the Nation
Brittan Jackson Bush, 72 La. L. Rev. 757 (2012)
“Have you been exposed to asbestos?” On a regular basis, our television poses this question. Before we have time to formulate an answer, we know that a website filled with information along with a 1-800 hotline waits at the end of the commercial. Often, we shrug these advertisements off as mere annoyances and assure ourselves that somewhere, a lawyer is banking on a legal get-rich-quick scheme. After the advertisement concludes, we ponder why asbestos claims still exist, because asbestos’ health effects have not plagued recent generations.
We fail to recognize, however, that these commercials are merely the public façade of a problem facing courts across the country. Asbestos not only affects those with one of its associated health problems, but also all citizens, because society must bear the substantial costs of litigating the claims of those injured by asbestos. The cost of asbestos litigation has caused an amount of medical and economic suffering never experienced under American tort law. Asbestos litigation has left plaintiffs without compensation, corporations without assets, courts with crowded dockets, and litigators with hearty bank accounts.
Unfortunately, the solutions offered by state governments and the federal government to reform asbestos litigation have been ineffective. Recently, Rando v. Anco Insulations Inc. forced the Louisiana Supreme Court to choose a solution for Louisiana’s asbestos litigation crisis. Due to judicial constraints, however, the court was unable to consider the myriad of other solutions available in other states. Therefore, the court’s decision not only failed to advance any solution to the asbestos litigation problem but also worsened it.
The inability of the Louisiana Supreme Court to craft a proper solution for Louisiana’s asbestos litigation problem requires legislative action. This Comment seeks to remedy the asbestos litigation crisis by formulating a state-administered scheduled compensation model that balances the interests of asbestos plaintiffs, defendants, and attorneys.
The Louisiana DOMA as an Improper Impediment to the Evolution of Public Policy Toward Cohabitants
Randy J. Marse, Jr., 72 La. L. Rev. 789 (2012)
Americans choose not to marry for various reasons. The American Law Institute articulated a few such reasons in its “Principles of the Law on Family Dissolution”:
Among other [reasons], some [couples] have been unhappy in prior marriages and therefore wish to avoid the form of marriage even as they enjoy its substance. . . . Some begin a casual relationship that develops slowly into a durable union, by which time a formal marriage ceremony may seem awkward . . . . Failure to marry may reflect group mores; some ethnic and social groups have a substantially lower incidence of marriage and a substantially higher incidence of informal domestic relationships than do others. Failure to marry may also reflect strong social or economic inequality between the partners, which allows the stronger partner to resist the weaker partner’s preference for marriage. . . . In all these cases, the absence of formal marriage may have little or no bearing on the character of the parties’ domestic relationship . . . .
No matter what reason a couple chooses not to marry, society now recognizes such relationships and the law should do so as well. Scholars have long debated the legal rights and protections that should be afforded to couples choosing not to enter into the marital relationship. Any rights and protections that exist for such couples, which vary from state to state, were threatened in the aftermath of the Massachusetts Supreme Court’s 2003 decision in Goodridge v. Department of Public Health. In Goodridge, the court held that denying a same-sex couple’s right to marriage violated the Massachusetts Constitution. In response, 30 states have adopted a “Defense of Marriage Amendment” (“DOMA”) to amend their constitutions and prevent a similar decision granting same-sex couples the right to marry.
Many of these DOMAs also affect the rights of opposite-sex couples. Fifteen DOMAs, including Louisiana’s, prohibit a legal status “identical or substantially similar” to marriage for all unmarried persons, including opposite-sex couples as well as same-sex partners. In several of these states, legal authorities analyzed the amendment and determined its effect upon unmarried opposite-sex couples (“cohabitants”). Although in 2004 the Louisiana legislature debated the effect its DOMA would have, the issue remains unresolved.
News & Updates
Symposium: Coastal Land Loss in the Gulf Coast and Beyond
The Louisiana Law Review’s 2012 symposium, Coastal Land Loss in the Gulf Coast and Beyond, to be held March 30, 2012, addresses the numerous legal and administrative issues that relate to coastal land loss in Louisiana and other coastal areas throughout the world. This year, the Law Review has brought together legal scholars from around the country to discuss coastal land loss’ effects on environmental regulation, land use planning, climate change, and the benefits of adaptation strategies. This year’s symposium panel includes Professor J. Peter Byrne, who currently serves as the Faculty Director for the Georgetown Environmental Law and Policy Institute and the Georgetown State-Federal Climate Research Center. Ultimately, this symposium seeks to explore the potential legal barriers to coastal protection as well as the overarching ramifications that coastal land loss poses to coastal zone inhabitants.
Annual Law Review Banquet to be Held March 24, 2012.
Attention current and former Louisiana Law Review members: The Louisiana Law Review will hold its annual banquet on Saturday, March 24, 2012. Please join us at Juban’s Restaurant, 3739 Perkins Road, Baton Rouge, at 6:30 p.m. as we welcome guest speaker Judge Jane Triche-Milazzo, United States District Court for the Eastern District of Louisiana. RSVP [...]
Volume 73 Board of Editors Announced
The Volume 72 Board of Editors of the Louisiana Law Review is pleased to announce and congratulate the following Junior Associates who have been selected as the Board of Editors for Volume 73. Editor-in-Chief: Katherine L. Cicardo Managing Editor: Blair A. Crunk Production Editors: Laura Blair Naquin, Timothy R. Wynn Articles Editors: Jessica M. Lewis, [...]
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.
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.
