Complete Index of Volume 78, Issue 3

What Are Courts For? Have We Forsaken the Procedural Gold Standard?

Arthur R. Miller

This Article argues that the Federal Rules of Civil Procedure have greatly diverged from their initial purpose: giving people access to a meaningful day in court. At its inception, the Federal Rules of Civil Procedure were a Gold Standard that envisioned a trial and, when appropriate, one before a jury. This Article contemplates the changes to the Rules, and whether the Rules still embody this Gold Standard. In examining these changes, the Author focuses on one difficult question: what is the purpose of federal courts today? First, this Article addresses procedural barriers that have been created over the years making litigation in federal courts more difficult. Next, it addresses the privatization of the dispute process though alternative dispute resolution methods. After addressing privatization, the Article looks at multidistrict litigation and judicial case management. Lastly, the Article examines why these changes in federal practice have occurred.

Revisiting the “Content-of-Laws” Enquiry in International Arbitration

Soterios Loizou

This Article encompasses a three level analysis of the content-of-laws enquiry in International Arbitration. Firstly, it explores the theoretical underpinnings and the various approaches articulated in legal theory to the establishment of the content of the applicable law in international litigation and arbitration. Secondly, on the basis of an elaborate comparative review of the various legal regimes and jurisprudence in the most frequently selected venues of arbitration, namely England & Wales, France, Hong Kong, Singapore, Switzerland, the State of New York (USA), and Sweden, as well as in leading investment arbitration fora, it challenges conventional wisdom by showcasing the emerging trend toward the application of a “facultative” jura novit arbiter principle in international arbitral proceedings. Thirdly, it delineates a clear modus operandi for arbitral tribunals and national courts reviewing arbitral awards in annulment proceedings and offers model clauses, arbitration rules, and national law provisions on the content-of-laws enquiry. Finally, it concludes with remarks and observations that amplify the importance of continuous governing law related consultations between the parties and the arbitrators throughout the arbitral proceedings and, certainly, before the tribunal has rendered its final award.

A New Natural Law Reading of the Constitution

Santiago Legarre

This Article argues that the United States Constitution—or any constitution, for that matter—should be interpreted“morally,” and that the morality used in this interpretative venture ought to be natural law morality. To begin, this article explains what natural law is not. Next, an overview of what natural law means for the purposes of this Article is provided as well as a clarification of how natural law connects to positive law. Next, the Article argues that natural law can factor into constitutional interpretation in subtle but significant ways. More specifically, this Article suggests that natural law has two different levels of presence in constitutional law. The interpretation of constitutional norms, this Article argues, is more moral with regard to one of the two modes of connection and more technical with regard to the other mode. Finally, this Article offers some conclusions about the role of natural law interpretation.

Stranger than Fiction: How Lawyers Can Accurately and Realistically Tell a True Story by Using Fiction Writers’ Techniques that Make Fiction Seem More Realistic than Reality

Cathren Page

This Article illustrates how attorneys can make their true stories actually appear so by using some of the same techniques that fiction writers use to make fiction seem real. First, this Article provides a brief overview of Applied Legal Storytelling. Next, it explains the concept of verisimilitude and outlines some of the traits of the concrete details chosen. Finally, it provides examples from fiction and from law, analyzes those examples, and makes comparisons and distinctions.

Doing Aweigh with Uncertainty: Navigating Jones Act Seamen’s Claims Against Third Parties

Sara B. Kuebel

This Comment gives a brief overview of admiralty jurisdiction as well as the scope of maritime law, the sources of maritime law, its general principle of uniformity, and the remedies available to seamen. Next, it analyzes the chronology of cases addressing maritime punitive damages and illustrates the split in the Eastern District of Louisiana concerning whether a Jones Act seaman may recover punitive damages from a third-party non-employer. Additionally it argues that punitive damages remain available under general maritime law and that these damages are available to a Jones Act seaman against a third-party non-employer. To best achieve uniformity in maritime law, this Comment proposes that the law should afford seamen and non-seafarers the same protections under general maritime law against non-employers.

“Bring Your Gun to Work” and You’re Fired: Terminated Employees’ Potential Rights for Violations of Parking Lot Laws

Malerie Leigh Bulot

This Comment examines the Second Amendment and various state Parking Lot laws and their exceptions. It also presents courts’ and scholars’ determinations on the constitutionality of Parking Lot laws. Next, it explains the tort of wrongful discharge itself as it varies among the states along with the public policy and whistleblower exceptions to at-will employment. Next, it focuses on a recent United States Fifth Circuit Court of Appeals case, Swindol v. Aurora Flight Sciences Corporation, in which the Fifth Circuit became the first court to recognize a gun-storing employee’s right of action against a former employer who violated a state’s Parking Lot law. After analyzing Swindol, it determines that the Swindol court correctly decided the case after generally analyzing the rationale of wrongful discharge in violation of public policy (“WDVPP”) and the public policy considerations behind the enactment of Parking Lot laws. It also argues that in the event a state does not recognize WDVPP, the existence of a whistleblower statute nonetheless will provide a right of action to an employee terminated for storing guns in his vehicle on company property. Finally, it surveys the employment laws of Utah and Louisiana, which respectively include the WDVPP tort and the whistleblower statute, and examines the circumstances surrounding their Parking Lot laws’ enactment.

You Sell Molly, I’ll Sell Holly: Prosecuting Sex Trafficking in the United States

Tiffany Dupree

This Comment describes the many facets of sex trafficking and addresses common misconceptions related to the crime. Additionally, it explains why sex trafficking laws rarely are used in prosecution despite substantial improvements in federal and state sex trafficking laws. Moreover, it poses two solutions that, when combined, will greatly decrease instances of sex trafficking. Making sex trafficking a strict liability crime and implementing innovative prosecution strategies equips the United States with the tools it needs to win the fight and finally abolish sex slavery.

Criminalization of Cyberbullying: The Constitutionality of Creating an Online Neverland for Children Under a Tinker-Bell Analysis

Randall Morgan Briggs

This Comment asserts that Louisiana’s criminal cyberbullying statute is unconstitutional because it extends beyond the exceptions to First Amendment protections recognized by the Supreme Court and the United States Fifth Circuit Court of Appeals and thus criminalizes constitutionally protected speech. First, this Comment discusses the history and significance of the fundamental right of free speech in the United States and exceptions to First Amendment protections recognized by the Supreme Court. Also, it explores Supreme Court jurisprudence and subsequent lower court decisions regarding speech relevant to criminalizing cyberbullying. Additionally, it analyzes the constitutionality of Louisiana’s cyberbullying statute under the First Amendment of the United States Constitution and the Louisiana Constitution. Finally, it proposes changes to the statute to provide the greatest constitutional protection for children.