Volume 77, Issue 4

 Complete Index of Volume 77, Issue 4


Articles

Alex Robertson

This Article analyzes the relevant Louisiana Civil Code articles relating to when solidarity should apply, Louisiana courts’ interpretations of those articles leading up to Hoefly, and the expansion of the Hoefly test in the insurance context. It articulates four possible defects in the Hoefly test and illustrates each defect with a discussion of post-Hoefly jurisprudence. Finally, this article suggests that courts analyze solidarity arising from the law based on a plain reading of the Civil Code, requiring the legislature to decide expressly—guided by public policy— which obligors are solidarily bound.


Stephanie B. Laborde, James E. Moore Jr., & Heather Landry

This Article discusses developments in LIGA Law. It endeavors to set forth the current state of the settled law and to discuss the areas that remain subject to conflict or judicial interpretation. This Article first discusses the character and purpose of LIGA and then the applicable procedures for suing and defending cases involving LIGA. A substantive discussion of the defenses and statutory limits to LIGA’s obligation to pay claims will be followed by an analysis of the application of LIGA Law to the insured. Finally, this Article concludes with a discussion of settlements and judgments in the context of these cases and which version of LIGA Law applies to a specific claim.


Reorienting Home Rule: Part 2–Remedying the Urban Disadvantage Through Federalism and Localism

Paul A. Diller

The first installment of this two-part Article series illustrated how the federal and state lawmaking processes disadvantage urban areas. Part I of this second installment of this two-part Article discusses the impact of the urban disadvantage on federal preemption and possible doctrinal remedies thereto. Any potential remedies run into two hard-and-fast federal constitutional rules: first, that all states are to be treated equally; and second, that cities and states are conflated under federal preemption analysis. If committed to curing the urban disadvantage, the Supreme Court might reconsider these doctrines, but this Article takes these doctrines as a given. Part II of the Article then explores the doctrines that grant and limit local power at the state level, fleshing out constitutional home rule in more detail. Part III explores the possibility of using constitutional home rule to help cure the urban disadvantage that exists in many state legislatures. Part III also highlights the peril of constitutional home rule inadvertently strengthening populations in areas whose views are already sufficiently represented, if not overrepresented, at the national and state levels. Part IV turns the lens of the Article’s analysis to local government itself and asks whether its structural design can bear the responsibility that would accompany the power to enact legislation that is immune to state legislative override. Finally, Part V examines what effect an emboldened constitutional home rule, which technically and most directly affects state– local relations, might have on the federal order.



Comments

Out of House and Home: The Disparate Application of Louisiana’s Eviction Laws to Mobile Home Owners

Jared A. Clark

Part I of this Comment provides background on mobile homes and the demographics of the people who own these homes. Part II discusses Louisiana’s laws on eviction in general and the problems these laws cause for mobile home owners in particular. Part III surveys mobile home eviction laws in other jurisdictions to find a more equitable approach for Louisiana. Part IV proposes a unique solution for Louisiana to alleviate the problems mobile home owners face in eviction. Specifically, this Comment argues that Louisiana should move away from the trend of other states in promulgating “good-cause” statutes and instead apply a different regime that more fairly balances the rights of both the landowner and the mobile home owner.

Boudreaux v. Cummings: Time to Interrupt an Erroneous Approach to Acquisitive Prescription

Cody J. Miller

Part I of this Comment provides background information on the fundamentals of proper civilian interpretation of the Civil Code, which contains the law on predial servitudes, acquisitive prescription, and possession. Putting these foundational principles into the context of a specific property law conflict, Part II explains the Louisiana Supreme Court’s decision in Boudreaux v. Cummings, revealing the problems that arise from the Court’s failure to distinguish between a servitude and the underlying land. Part III explores how the Court’s application of civilian methods were incomplete. Part IV presents both a retrospective solution and a prospective one for future cases despite the improper civilian approach used in Boudreaux. It advocates for Louisiana courts to return to their civilian roots and approach confusing legal issues with the clarity and categorization of civilian deductive reasoning.

To Kill a Cuckoo Bird: Louisiana’s Dual Paternity Problem

Henry S. Rauschenberger

Part I of this Comment provides an overview of Louisiana’s law of filiation and how it has given rise to the doctrinal problem of dual paternity. Part II describes the Louisiana Supreme Court’s attempt to mitigate the harm caused by the doctrine with its decision in Lowrie, by explaining the decision in full and discussing its effect. Part III details the problems that still remain with the doctrine of dual paternity post-Lowrie. Part IV suggests a solution for the problem of forced dual paternity through modification the legal provisions which give rise to it. Finally, the Addendum addresses changes made by the legislature to Louisiana’s law of filiation after this Comment was accepted for publication.

Real Rights of Noncompetition: Louisiana Public Policy and the Civil Tradition

Alex Hotard

This Comment explores the enforceability of real rights of noncompetition in Louisiana. Part I provides background on Louisiana real rights and personal obligations. Part II examines how Louisiana courts have embraced certain real rights of noncompetition. Part III argues that Louisiana’s enthusiastic acceptance of these rights oversimplifies the law of real rights and ignores important public policy concerns. Part IV proposes a legislative solution to these problems and attempts to reconcile legitimate business interests with the best interests of the state.

Volume 77, Issue 3

 Complete Index of Volume 77, Issue 3


Articles

Precarious Possession

John A. Lovett

Acquisitive prescription is a time-honored institution in civil law property regimes generally and in Louisiana property law in particular. Precarious possession is an equally important concept. A recent Louisiana Supreme Court decision, Boudreaux v. Cummings, 167 So.2d 3d 599 (La. 2015), has raised important questions about the intersection of acquisitive prescription and precarious possession in Louisiana law. This article reconstructs the law of precarious possession to answer some of those questions. It traces how Louisiana’s two-tier institution of good and bad faith acquisitive prescription emerged from Roman law and pre-codification French and Spanish law, discusses how French commentators interpreted their codified version of that law and approached the problem of precarious possession with caution, and defends the continuing viability of Louisiana’s two-tier institution of acquisitive prescription. The article then reviews a significant body of Louisiana case law addressing precarious possession in the context of possessory actions and acquisitive prescription. It demonstrates that in two categories of cases—those involving true strangers and persons involved in contractual or legal status relationships—Louisiana courts reach defensible and consistent outcomes. But it argues that in a third category of cases—those involving neighbors who know each other well or members of the same close-knit community—courts face acute challenges and produce inconsistent results. The article contends that to resolve this third category of cases with greater sensitivity to the virtue of property sharing and to the specific relational context of these disputes, Louisiana law would benefit from the adoption of a presumption of sharing and concomitant indicia of giving or renunciation.


A First Amendment Deference Approach to Reforming Anti-Bullying Laws

Emily Suski

This Article explores the problems associated with school exclusion as a response to bullying in light of the complicated nature of the problem and the attendant First Amendment concerns. It argues in favor of drawing on First Amendment jurisprudence, particularly by deconstructing rationales for the deference afforded schools to suppress student speech, to develop better, more comprehensive legal approaches to combatting bullying that also address those First Amendment concerns. In doing so, it also seeks to fill a gap in the literature on bullying. Although scholars have explored the limits that the Constitution, including the First Amendment, places on antibullying laws, they have not done so in light of the complicated nature of the problem, the interventions called for in response, or by examining the rationales for public school deference to suppress student speech.


Seeking a Definition of Medical Futility with Reference to the Louisiana Natural Death Act

Frederick R. Parker Jr.

This Article addresses the specific issue of how the Louisiana Act might inform the question of whether, or in what circumstances, treatment can be so futile that a patient has no positive right to receive it. As this issue most commonly arises in the context of permanently incapacitated patients whose surrogates speak on their behalf, it would be appropriate to first consider the relevance of a patient’s decisional capacity to the question. As a preliminary matter, this Article begins by discussing the concept of personhood and the relevance of capacity to the right of a severely incapacitated patient to accept or refuse treatment.


Domestic Drone Surveillance: The Court’s Epistemic Challenge and Wittgenstein’s Actional Certainty

Robert Greenleaf Brice & Katrina L. Sifferd

This Article examines the domestic use of drones by law enforcement to gather information. First, Part I considers the Fourth Amendment and the different legal standards of proof that might apply to law enforcement drone use. Part II then explores philosopher Wittgenstein’s notion of actional certainty. Part III discusses how the theory of actional certainty can apply to the Supreme Court and its epistemic challenge of determining what is a “reasonable” expectation of privacy. This Part also investigates the Mosaic Theory as a possible reading of the Fourth Amendment.



Comments

Mind the Gap: Bridging Gender Wage Inequality in Louisiana

Katilyn Hollowell

Currently, a woman in Louisiana has several methods to claim wage discrimination, including filing a claim under federal or state law. However, these laws are insufficient and do not offer adequate protections to employees, specifically because Louisiana operates under two equal pay regimes, thus affording better protections to one group of working women over others. Louisiana employees need a new statutory regime that is efficient, clear, and gives all employees equal rights and protections regardless of gender or employer. This regime should provide protection to both public and private employees in Louisiana. Therefore, the Louisiana Legislature should modify and pass Senate Bill 219, which failed during the 2015 Regular Legislative Session.

Unveiling Management’s Crystal Ball

Eric R. Harper

Have you ever wanted to look into a crystal ball and predict the future Although not always accurate, most companies have the ability to look into their “crystal ball” and make predictions for the future of the business. Companies may disclose this forward-looking information to shareholders or potential investors, but may also choose not to unveil the crystal ball, considering that the predictions could have a negative impact on their current stock prices. If a company’s investors suspect a company’s statements were materially false or misleading, the investors may bring a securities fraud class action lawsuit, claiming the company omitted certain material forward-looking information that likely would have had a negative impact on revenues and profits.

Hey Employer, Did You “Notice” My Text Message?

Melissa J. Shaffer

Part I of this Comment provides an overview of the FMLA and corresponding federal regulations, focusing on the purpose of the 2009 revisions and the policy concerns underlying the FMLA. Part II examines the ambiguous language of the FMLA notice provisions and the conflicting jurisprudence in cases of unforeseeable leave, examining each element of notice—timing, content, and form. Part III analyzes the implications of the current state of the law on employers and employees. Part IV argues that Congress should amend the Code of Federal Regulations to include a two-step notice process in cases of unforeseeable leave to clarify the law and provide employers and employees with more consistency and security.

Inconsistency with the Internal Consistency Test

Mackenzie Catherine Schot

Part I of this Comment provides an overview of the erratic history of state taxation under the dormant Commerce Clause. Part II explains the divided Supreme Court’s most recent analysis in Comptroller of the Treasury of Maryland v. Wynne. Finally, Part III argues that the Court correctly chose the internal consistency test as the leading standard but should have presented its final decision more clearly.

Volume 77, Issue 2

 Complete Index of Volume 77, Issue 2


Articles

The Ever-Changing Bogeyman: How Fear Has Driven Immigration Law and Policy

Arthur L. Rizer III

This Article explores the relationship between national security and immigration law—and, specifically, how immigration as the proverbial “bogeyman” has steered immigration law. Part I discusses the definition of national security, as defining it is a prerequisite to discussing its implications on immigration law. Part II provides a historical backdrop of national security and shows how events throughout history have sparked “fear” that has led to legal action. Part III of this Article provides the reader with a picture of the current legal framework of immigration law, including provisions of the Immigration and Nationality Act. By examining provisions of the Act and peripheral legal issues, such as providing “material support to terrorist organizations,” this Part addresses the national security questions of protecting the borders, population control, and the very essence of the rule of law. Last, Part IV of this Article explores the conflict between individual rights and national security. This Part attempts to answer the threshold question of whether it is appropriate that our national security interests and perhaps exaggerated fear should drive the development and implementation of immigration law.


Reorienting Home Rule: Part 1–The Urban Disadvantage in National and State Lawmaking

Paul A. Diller

This Article takes a different tack: it impugns the democratic legitimacy of the federal and state lawmaking processes from the perspective of large and densely populated urban areas. More specifically, this Article explains why the federal and state governments fail to represent the median voter, and how this failure systematically disadvantages the views of big-city residents. At the federal level, the anti-urban dynamic is most pronounced in Congress. Hence, the urban-centered majority that succeeded in electing a president in 2008 and 2012 has been stymied by a Congress that underweights urban votes. For example, despite more than 90% of the U.S. population supporting increased gun regulation after the Newtown school shooting—with support at its highest in urban areas—Congress failed to produce any meaningful legislative response. Although less obvious, many state legislatures shortchange the views of urban residents in favor of more rural and exurban voters. Thus, although a majority of a state’s voters might prefer to expand Medicaid under the Affordable Care Act, for instance, a state legislature’s anti-urban skew helps block any such expansion if the pro-expansion majority is concentrated in urban areas.


Giving Credit Where Credit is Due: Reducing
Inequality with a Progressive State Tax Credit

Eric Kades

This Article proposes an innovative federal tax solution that offers a maneuver around state roadblocks that would eliminate unfair taxation across every state in one fell swoop: the progressive state tax credit (“PSTC”). The basic idea is to give poorer households a 100% credit for all of their estimated state tax payments, including income, sales, and property taxes. As income rises, the percent of the credit would decline, and the most affluent households would pay a “negative credit” or surcharge to fund the tax relief for their lower income counterparts. The PSTC is especially well-suited to counteract, at least partially, growing American income inequality.


The Legality of Extraterritorial Application of Competition Law and the Need to Adopt a Unified Approach

Thanh Phan

Although many countries oppose the EACL, asserting that it violates international law, others utilize the EACL but often in different ways. The international approach to the EACL is not unified and fails to recognize that some countries still adopt a “double standard” for the EACL, which occurs when one country opposes the application of another country’s law within its territory but seeks to apply its own law to other countries extraterritorially. This Article explains that the extraterritorial application of competition law by a country to acts that occur outside its territory is not contrary to international law if that application is properly limited. The EACL should be the unilateral action of one country only when the affected countries fail to find a common solution for a cross-border competition issue. Ultimately, this Article further proposes a model that should be applied to limit the extraterritorial jurisdiction of competition law. This model would require a country to scrutinize the link between the alleged act and its country and consider the interstate interests involved before deciding to exercise its jurisdiction.



Comments

22nd Time’s the Charm: The 2015 Revisions to
Summary Judgment in Louisiana

Garrett Filetti

Part I of this Comment provides a brief overview of summary judgment, the process for making the motion, and the history of the procedure in both federal and Louisiana state courts. Part II discusses the revisions made to Article 966 during the 2015 legislative session, focusing in particular on the changes to the timing and briefing deadlines, the required evidentiary procedure, the effects of partial summary judgment, and the changes to the appeals process. Part III analyzes the practical effects of the 2015 revisions on summary judgment procedure. Finally, Part IV addresses some remaining concerns and urges Louisiana courts and practitioners to make motions for summary judgment an integral part of trial preparation, ensuring that the process remains efficient and that the changes brought by the 2015 revisions are not undermined by delay.

Aliens Among Us: Factors to Determine Whether Corporations Should Face Prosecution in U.S. Courts for their Actions Overseas

Dustin Cooper

The disparity among the circuits evidences the need for a solution that will create uniformity in the application of the touch and concern doctrine. Part I of this Comment provides a brief introduction to the history and scope of the ATS. Part II examines the unresolved issue of corporate liability under the ATS by exploring the holdings of seminal cases. Part III proposes three factors that courts should utilize in determining whether a claim sufficiently “touches and concerns” the United States: first, the citizenship of the defendant; second, the location of the conduct; and third, the nature of the alleged violation. Utilization of these factors will provide corporations with greater certainty regarding their liability for business conducted overseas and provide clarity to a statute that has been engulfed by ambiguity since its inception.

We Need a Fracking Baseline

Ryan King

This Comment does not argue that hydraulic fracturing is inherently dangerous, nor that its use should be restricted, but instead discusses several issues that have arisen from the practice, including the potential for increased risk as the shale boom continues. It argues that Louisiana should apply a mixed regulatory strategy beginning with requiring baseline water testing and promoting best-practices regulations as standards develop or when issues arise, which will protect both the industry and the landowners. Part I explains hydraulic fracturing and contamination while also demonstrating that hydraulic fracturing is essential to Louisiana and the United States. Part II discusses the theories of liability available to injured landowners and the evidentiary requirements’ prevention of an equitable resolution, regardless of whether strict liability is imposed. Part III illustrates Congress’s refusal to regulate the industry and demonstrates several states’ compensation for this lack of regulation, whereby states enact their own regulations. Part IV examines the issues from the perspectives of the landowner, the operator, and the State to develop a solution beneficial to all. This Comment concludes by proposing that Louisiana should require baseline water testing before hydraulic fracturing operations and use the data collected over time to establish best-practices regulations for the industry.

Outkicking the Coverage: The Unionization of College Athletes

Tim Robinson

In January 2014, the College Athletic Players Association (“CAPA”) petitioned the National Labor Relations Board (the “NLRB”) to represent a collective bargaining unit consisting of scholarship football players at Northwestern University. In doing so, the athletes presented a novel question: are college athletes considered employees for purposes of federal labor law standards? If so, then these athletes are entitled to the rights prescribed to all employees under the National Labor Relations Act (“NLRA”), including the right to unionize and collectively bargain; if they are not employees, then they are excluded from coverage under the Act and are not entitled to any of the rights granted therein. Ultimately, the NLRB eluded the question for policy reasons. However, the question remains—what is the status of college athletes under federal labor law? This Comment attempts to predict the outcome of this important issue.

Volume 76, Issue 4

 Complete Index of Volume 76, Issue 4


Articles

Levasseur, Legal Linguist

John Randall Trahan

This Article provides an exposé of the approach Professeur Levasseur has taken in his work as a “legal linguist”—to be more precise, his method of legal translation. The exposé begins by examining, if only briefly, what one might call the “backdrop” against which he has developed that method—his understanding of the relationship between “legal language,” on the one hand, and “legal culture,” on the other. Having done that, the exposé examines, in this order, Professor Levasseur’s understanding of what legal translation is, what its proper ends are, and what means should be used to attain those ends. Finally, the exposé presents a brief critical valuation of his method.


Classifying and Clarifying Contracts

Ronald J. Scalise, Jr. 

Doctrine in many instances has filled the legislative gaps and helped explain some of the confusion. With respect to the rules on classification of contracts, however, virtually no doctrine exists since the recodification of 1984. This Article hopes to fill that gap, beginning with a background of the Roman and French rules on classification of contracts to lay a foundation for understanding the rules specific in the Louisiana Civil Code. Although helpful, those Roman and French rules have not been well-understood and suffer from a number of defects or limitations. Subsequent revisions throughout the Louisiana Civil Code have proceeded without a firm foundation of this classification scheme, which has made harmonization and application of the existing scheme even more complex. Although the bulk of this Article is a critique of Louisiana law’s current classification of contracts, it is not dogmatic in its approach. The hope and purpose is to elucidate and clarify the current classificatory scheme for contracts in Louisiana while also demonstrating the imperfect nature of any scheme and the need for flexibility.


Keep Calm and Teach Gaius

Nicholas Kasirer

Total information in the digital age gives a picture of law that is distressingly unruly, but this is decidedly not so for the civil law taught in the universities. For centuries, civilian categories of thought have neatly organized the law across continents in a seemingly straight line, and none of the vagaries of human experience seem to deflect it from a Cartesian path. Following in those tracks would be one way to teach the civil law while others lose their way in the darkness brought on by too much law. Today’s students can swap their anxieties and their search engines for a pocket civil code. As for faculty, they would do well to stick to the well-trodden Professorenrecht. Keep calm and teach Gaius.


Civilian Statutes and Judicial Discretion

Symeon C. Symeonides

This Essay discusses whether and to what extent judges may deviate from the statutory text in a limited context by examining recent statutes in which the legislature itself authorizes such a deviation. The context is further limited to one particular legal field, which happens to be the Author’s specialty—private international law (“PIL”) or conflict of laws—and more specifically, the Essay focuses on PIL codifications enacted in the last 50 years. Part I enumerates the various grants of legislatively authorized discretion in these codifications. Part II then focuses on the most explicit of those grants—“escape clauses.” The Essay concludes by attempting to draw some conclusions about the evolving relationship between legislators and judges and the modern art and science of codification.


United States Discovery and Foreign Blocking Statutes

Vivian Grosswald Curran

The reality between discovery in the United States and the foreign blocking statutes that impede discovery in numerous civil law countries has been an uncomfortable mixture of resistance, insistence, and conflict for the nations involved. American courts grapple with the challenge of understanding why they should adhere to strictures that seem to compromise the fundamental rights of American plaintiffs, while French and German lawyers and judges struggle with the challenges that United States discovery rules pose to equally fundamental values in their legal systems. This Essay seeks to address these issues.


The French Reform of Contracts: An Opportunity to Tie Together the Community of Civil Lawyers

Michel Séjean

The first part of this Essay shows that it is clear, however, that the reception of the draft by foreigners shows that the quest for influence belongs to the past. In the second part, the Essay suggests a more beneficial consequence of the ongoing reform: the perspective of a soon-to-be enacted reform creates a unique opportunity to tie together the community of civil lawyers around the world through translation of the future law into an English language whose terminology reflects the peculiarities of civil law. As will be seen, Professor Levasseur is the mastermind behind this awareness of the English terminology of civil law.


A Translator ’s Toolbox: The Law, Moreau-Lislet’ s Library, and the Presence of Multilingual Dictionaries in Nineteenth-Century Louisiana

Agustín Parise

Part I of this Comment discusses both the use of noncompete agreements throughout the United States and the history and enforceability of noncompete agreements in Louisiana. Part II explores the doctrine of nullity and three remedies for null agreements under current Louisiana law. Specifically, this Part analyzes an action for damages under Louisiana Civil Code article 2033 as a remedy for absolutely null noncompete agreements and examines the appropriateness of reformation of overly broad noncompete agreements. Part III discusses how reformation leads to drafting overly broad agreements, which leaves both employers and employees uncertain about the enforceability of the agreement. This Part also addresses the problems of overuse of noncompete agreements in Louisiana caused by the lack of a requirement that employers demonstrate a protectable interest. Part IV offers both legislative and judicial solutions to address the pervasive problems in Louisiana’s noncompete statute and to stifle the overuse and overbreadth of noncompete agreements.


Abuse of Right in Quebec: Some 40 Years Later

Jean-Louis Baudouin

American common law jurisdictions have clearly influenced Louisiana private law. The situation in Quebec, however, has been slightly different. Due to the persistence of the use of the French language, the doctrinal and jurisprudential impact of continental law—particularly that of France—has always played an important role. Yet Louisiana, due to the existence of a civil code and a well-implanted Roman tradition, remains with Quebec and Haiti as one of the only continental-related jurisdictions in North America.

The purpose of this short Essay in honor of Professor Alain Levasseur is to show how not only the law but also the very concept of abuse of right in property and judicial areas have drastically changed over the years.


The General Principles of Contract Law in the “Ordonnance” on the Reform of Contract Law

Mustapha Mekki

Finally, the reform of contract law has taken place. After 10 years of waiting, Title III of Book III of the French Civil Code has been revised. The revision was done by “Ordonnance”—legislation developed without going through Parliament. The Ordonnance, which was published in February 2016, contains numerous changes to French contract law that are meant to better align the law with the economic and social realities of today. This Essay is not concerned with all of the intricacies of the reform, but rather will provide analysis of its general principles, namely “good faith” and “freedom of contract,” which are explicitly detailed in the proposal.


Rewards and Challenges of Teaching Comparative Law in the Commonwealth Caribbean

Asya Ostroukh

The need for comparative law in the age of globalization and internationalization of life in general, and legal development in particular, has been articulated in legal scholarship. The importance of comparative law for training modern lawyers has been emphasized as well. Nevertheless, these issues are still discussed mostly in relation to and in the context of larger countries and major legal systems, mostly Europe in whole, its largest countries (Germany, France, and the United Kingdom), and the United States. The importance of comparative law for small, marginal jurisdictions offers a fruitful field to explore.

This Essay discusses the Author’s personal experience of teaching the course of comparative law at the Faculty of Law at Cave Hill Campus of the University of the West Indies (Barbados), focusing on the benefits and challenges of this teaching in this particular region. The discussion also includes the history and current development of comparative law in this part of the world as well as future prospects of this field of knowledge


Comments

Equalizing the Threat of Noncompete Agreements: Solutions Beyond Louisiana ’s Tangled Web of Nullity

Kristen Amond

Part I of this Comment discusses both the use of noncompete agreements throughout the United States and the history and enforceability of noncompete agreements in Louisiana. Part II explores the doctrine of nullity and three remedies for null agreements under current Louisiana law. Specifically, this Part analyzes an action for damages under Louisiana Civil Code article 2033 as a remedy for absolutely null noncompete agreements and examines the appropriateness of reformation of overly broad noncompete agreements. Part III discusses how reformation leads to drafting overly broad agreements, which leaves both employers and employees uncertain about the enforceability of the agreement. This Part also addresses the problems of overuse of noncompete agreements in Louisiana caused by the lack of a requirement that employers demonstrate a protectable interest. Part IV offers both legislative and judicial solutions to address the pervasive problems in Louisiana’s noncompete statute and to stifle the overuse and overbreadth of noncompete agreements.

Coping with the Death of the Bargain Without Burying the Spirit of the Law: A “Foundational” Approach to Comparative Law and Its Application to Adhesion Contracts in Louisiana

Parker Smith

Part I of this Comment illustrates the first step in the foundational approach, which is to identify and articulate the nature of a “legal problem.” This Part argues that the proliferation of adhesion contracts results in the death of the bargain in consumer contracts and strips away significant evidentiary and theoretical justifications for the enforcement of contracts generally, undermining the legitimacy of contract law in both the common law legal system and Louisiana’s civil law legal system. Part II illustrates the second step in the foundational approach, which is to account for a proposed solution to the legal problem presented in the first step as well as to determine the guiding principles of that solution. This Part focuses on a proposed solution to the problems associated with adhesion contracts from the common law—the doctrine of unconscionability. Part III illustrates the third step in the foundational approach, which is to use the “foundational method” to test whether proposed solutions to legal problems are coherent with the legal systems under consideration. Utilizing social contract theory, this Part argues that two “perspectives” on the social contract—the “meansfocused” perspective and the “ends-focused” perspective—can act as philosophical foundations of the common law legal system and Louisiana’s civil law legal system, respectively. These philosophical foundations can be used to deduce general principles of each legal system, which can be compared with the guiding principles of the doctrine of unconscionability to determine the doctrine’s coherency with each legal system. Part IV illustrates the fourth step in the foundational approach, which is to conduct “secondary inquiries” in light of the coherency of the proposed solution. After determining that the doctrine of unconscionability is readily coherent with the common law but leaves something wanting in Louisiana’s civil law, this Part argues that Louisiana courts should focus more attention on the cause requirement of contract as a means of policing adhesion contracts. This Comment concludes by suggesting that—in addition to being “conscionable”—adhesion contracts in Louisiana must be “sociable,” reflecting the importance of a cause that is consistent with public policy.

Mirror, Mirror: Amending Louisiana ’s LLC Statutes Related to Personal Liability of Members to Reflect Corporate Counterparts After Ogea v. Merritt

Thomas Bourgeois

This Comment will explain the problems with Revised Statutes section 12:1320 and how the statute led to the Court’s unfortunate decision in Ogea. Part I will provide a brief history of LLCs and explain the advantages they provide to members. This Part will illustrate how the limited liability shield typically protects members in certain scenarios. Part II describes the Louisiana LLC and corporate statutes that determine personal liability of owners of those respective business entities. Part III will first explain how Louisiana courts wrestled with the language in Revised Statutes section 12:1320 before the Supreme Court’s first examination of limited liability in relation to LLCs in Ogea v. Merritt. This Part will then analyze the Court’s landmark holding in Ogea. Part IV provides an in-depth analysis of how Revised Statutes section 12:1320 led to the Supreme Court’s ambiguous and “all-encompassing” test, including potential ramifications of the decision. Part V argues that, to cure the uncertainty that the Louisiana Legislature and the Louisiana Supreme Court in Ogea created, the legislature should amend Revised Statutes section 12:1320 to mirror its corporate counterpart.

From Wedding Bells to Working Women: Unmasking the Sexism Resulting from “Illicit Concubinage” in Louisiana ’s Jurisprudence

Brittanie Wagnon

Part I demonstrates that the significant number of cohabiting couples creates a need for the legislature to act, and also explores who engages in cohabitation and why the practice has become so popular. Part II describes the evolution of cohabitants’ rights in the American courts and legislatures. This Part also surveys the various approaches in the United States, New Zealand, and France to afford rights to cohabitants. Part III explains Louisiana’s archaic views regarding unmarried cohabitation and why the State chooses to cling to this reasoning. Part IV scrutinizes the sexist biases in Louisiana’s jurisprudence and argues that Louisiana can no longer justify discriminating against cohabitants. This Part also proposes a solution that will fix the frequent inequity in Louisiana and calls for the change women deserve—the ability to decide for themselves whether marriage is indeed the best option by which to transfer property rights.

Volume 76, Issue 3

 Complete Index of Volume 76, Issue 3 


Articles

Closing the Deal in the Bayou State: The Purchase and Sale of Producing Oil and Gas Properties

Patrick S. Ottinger

This Article presents a broad overview of the most important rules and legal issues surrounding the purchase and sale of producing properties in Louisiana. Part I considers the fundamentals of the purchase and sale of producing properties, including the nature of producing properties and the factors that motivate a party to sell its producing mineral leases. As the Article examines this topic in the Bayou State, attention is given to the sources of laws. Part II examines pertinent provisions of the Louisiana Mineral Code as they relate to the assignment of mineral leases. Part III expands the examination of applicable law to include the relevant provisions of the Louisiana Civil Code, particularly the nominate contract of sale. As the purchase and sale of producing oil and gas properties is to be evidenced by a written agreement, Part IV takes up the contractual provisions typically encountered in purchase and sale agreements. This Part also explains in detail the steps taken in anticipation of a closing. Finally, the Article considers the range of remedies available to the parties in the regrettable circumstance that a transaction is not consummated as contemplated by the PSA.


Employing a Reservoir Community Analysis to Define and Marshal Correlative Rights in the Oil and Gas Reservoir

David E. Pierce

The quest for a more complete definition of property in oil and gas begins with the foundational concepts created by the ad coelum doctrine and the rule of capture, followed by qualifying principles created by correlative rights and conservation regulation. The contours of correlative rights are explored in the context of subsurface boundary disputes that require a precise delineation of rights in oil and gas reservoirs lacking physical boundaries. The study is completed with the author’s “reservoir community” analysis that defines and marshals each owner’s positive and negative correlative rights in a reservoir.


Fracking in Louisiana: The Missing Process/Land Use Distinction in State Preemption and Opportunities for Local Participation

Alex Ritchie

Even strong home rule must yield to significant state interests that create real conflicts. State interests in uniformity, the prevention of waste, the protection of correlative rights, and implications to the rule of capture make limitations on local authority to regulate oil and gas operations necessary. But the spirit of the movement that led to home rule suggests that local governments should have a meaningful voice in matters that impact their local communities. A meaningful local voice not only requires a procedural right to raise concerns, but also requires the state to listen and acknowledge those concerns and to address reasonable concerns when appropriate. Certainly, the state should not be obligated to address all local concerns in a substantive manner before issuing a permit. The state would not be overly burdened, however, by transparently conveying to the public how the state addresses local concerns that it decides to address and its reasons for not addressing other concerns that have been raised, particularly when at least some local concerns may be addressed in a balanced manner that preserves the state’s interest in the production of its resources.


Minimizing Counterparty Bankruptcy Risk

Mitchell E. Ayer

Part I of this Article discusses the treatment of claims in bankruptcy proceedings generally as well as the significance of a creditor’s unsecured claims in particular, providing background information for discussions of the consequences of bankruptcy for specific contractual relationships. Parts II through VI discuss the consequences of bankruptcy for parties to sales contracts for oil and gas production, joint operating agreements, oil and gas leases, purchase and sale agreements, and farmout agreements, respectively, as well as furnish relevant, practical strategies. Part VII discusses a final strategy that can be applied to various types of relationships—“Bad Boy” guaranties. This Article concludes with a summary of advice for protecting a party to oil and gas contracts from the consequences of counterparty credit risk.


Comments

Saving Sportsman’s Paradise: Article 450 and Declaring Ownership of Submerged Lands in Louisiana

Jacques Mestayer

Part I of this Comment introduces the growing controversy involving submerged coastal lands in Louisiana and illustrates the unique significance that these lands offer to the people of Louisiana. Part II focuses on the origin and historical treatment of submerged lands in Louisiana, specifically concentrating on the scope of Louisiana Civil Code article 450 and the jurisprudence dealing with its categories, namely “natural navigable water bottoms,” “arms of the sea,” and “seashore.” Part III recognizes that the State owns submerged lands that became natural navigable water bottoms, sea bottoms, and seashore prior to alienation by the State.[1] Further, Part III argues that no sound reason exists to distinguish natural navigable water bottoms, sea bottoms, and seashore that existed before state alienation and those that came into existence following state alienation. Finally, Part IV contemplates potential remedies to this arbitrary distinction regarding submerged lands and then proposes a legislative amendment that will clearly assert the State’s ownership over those submerged lands, thereby ensuring that private landowners shall no longer reap fruits lawfully belonging to the State of Louisiana.

Offer at Your Own Risk: Why Louisiana Employers Who Withdraw an Offer of Employment May Find Themselves Liable Under Civil Code Article 1967

Taylor Crousillac

In Part I, this Comment gives an overview of the approaches and solutions that various American jurisdictions have taken toward handling withdrawn offers of employment, then turns its focus to the Louisiana jurisprudence regarding reliance on an offer of at-will employment. Part II outlines Louisiana’s at-will employment doctrine and also discusses the evolution of detrimental reliance as a basis for recovery in Louisiana. Part II concludes with a discussion of the various aspects of Louisiana law that make reliance on an offer of employment even more reasonable in Louisiana than in common law states. Part III highlights the problems with the failure of Louisiana courts to apply detrimental reliance in the context of a withdrawn offer of employment. Finally, Part IV applies a solution to Bob’s problem that removes the categorical bar of recovery for claims of detrimental reliance.


Legislatively Capping an Energy Lawsuit: Problems Posed by Stripping a Pending Suit Against Ninety-Seven Oil and Gas Companies

Taylor Boudreaux

This Comment suggests that Act 544, though an unusual law, is both legally sound and appropriate. The law has legislative precedent, backed by jurisprudential support, which leads to the conclusion that Act 544 is constitutional. The legislature did not overstep its authority simply because a pending suit was affected, nor did the law improperly violate the flood protection authority’s constitutional protections. The SLFPA-E’s particular constitutional and statutory origins make the authority susceptible to this type of legislative action. Further, the entity’s actual purpose within the state’s regulatory scheme supports the conclusion that the legislature acted appropriately despite counterbalancing policy concerns.

Part I of this Comment sets out facts surrounding the board’s lawsuit and the legislature’s response, and provides context by comparing Act 544 to similar laws. Part II describes and analyzes the legality of retroactive laws that apply to a particular target involved in pending litigation, ultimately concluding that Act 544 does not violate any constitutional prohibitions. Lastly, Part III argues that, in light of the alternatives to this legislative response, both Act 544’s means and its end are legitimate. A survey of this lawsuit’s role within the established regulatory framework surrounding the oil and gas industry reveals that Act 544 was the preferred solution when considering the destructive alternatives.

Staying Out of Treble: A Comprehensive Civilian Approach to the Louisiana Mineral Code Provisions on Damages for Unpaid Royalties

Nathan Telep

This Comment seeks to end the debate over the interpretation of Mineral Code articles 138.1, 139, 140, and 212.23 by showing that treble damages are not appropriate for a lessee’s failure to pay royalties. Part I gives a brief overview of the applicable laws regulating the oil and gas industry, including a short history of how the Louisiana Supreme Court molded the body of mineral law through its decisions, which were later codified in the Louisiana Mineral Code. Part II uses civilian interpretive methods to illustrate the two conflicting interpretations of the Mineral Code articles. Part III concludes that the Mineral Code provides for double damages and proposes two possible legislative actions to make this abundantly clear.