Season 2, Episode 7: The Swan Song

Show Description

Jack and Cam say farewell in their last episode as hosts of the Legal Ease. Jack and Cam introduce Willie Walsh and Joe Cooper: the new hosts of the Legal Ease. Hunter Schoen, Tim Robinson, and Chris Ortte discuss Season 2. Kenzie Schott, the Editor in Chief, discusses the successful year of Volume 77.

Volume 78 Board Announced!

We are proud to announce and congratulate the Junior Associates who were selected to the Volume 78 Board of Editors. The Volume 77 Board received excellent candidates, and we thank everyone for applying. Serving on the Board of Editors of the Louisiana Law Review is a singular honor, and we wish the best of luck to the new Board! 

 

Editor-in-Chief

Carson Garand 

Managing Editor

Katie Herbert

Articles Editors

Colton Acosta

Sarah Nickel

 

Production Editor

Caroline Donze

Derby Willis

 

Executive Senior Editor

Kristin Oglesby

 

Senior Editors

Malerie Bulot

Molly Gunnels

Michael Seibert

Savannah Walker

Ben Wallace

 Online Editor

William Walsh

Blurring Lines: Emerging Trends and Issues in Sports and Gaming Law

Sports and Gaming Law:

What can NCAA athletes say on social media?

What is the future of fantasy football?

Are student athletes employees and should they be paid as such?

What law governs riverboat casinos?

On January 27, the LSU Law Center, the Pugh Center for Justice, and experts from across the country will discuss and analyze these complex issues in the sports and gaming industries. Please join us for this exciting Symposium. This Symposium qualifies for 7 free CLE credits in Louisiana and lunch is provided. See you there!

Register here: https://www.law.lsu.edu/symposium/

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 77, Issue 1

 Complete Index of Volume 77, Issue 1


Articles

Slavery Under the Thirteenth Amendment: Race and the Law of Crime and Punishment in the Post Civil War South

Peter Wallenstein

This Article takes Paul Finkelman’s focus on the origins and legacy of black as criminal and combines it—at a later time than under chattel slavery—with black as a laborer. With an end declared to individual ownership of enslaved laborers, new questions arose regarding the liberty and labor of former slaves. A legal, political, and economic struggle ensued over who would control black southerners’ liberty and labor—that is, whether it would be black southerners themselves who would hold this control. Part I recounts how the Thirteenth Amendment expressly permitted a recurrence of slavery, provided only that such enslavement constitutes a punishment for violating a criminal statute. Part II explores the new forms of slavery that spread across the South in ways more or less consistent with the language of the Thirteenth Amendment.


Restitution and the Excessive Fines Clause

Kevin Bennardo 

This Article offers solutions to further the conversation regarding the Eighth Amendment’s limits on restitution. The Excessive Fines Clause applies to payments that involve sufficient governmental involvement and are at least partially punitive.3 Criminal restitution satisfies both components and therefore falls within the compass of the Clause. To test for constitutional excessiveness, the amount of the restitution order should be aggregated with other monetary payments that constitute the Eighth Amendment “fine.” That cumulative fine should then be weighed against the gravity of the defendant’s offense conduct for gross disproportionality. Restitution should not be subjected to a special causation-based excessiveness test because causation is predominantly relevant to the compensatory aspect of restitution, not to its punitive aspect.


The Right to Redemption: Juvenile Dispositions and Sentences

Katherine Hunt Federle

The punishment of juveniles remains a troubling yet under-theorized aspect of the criminal and juvenile justice systems. These systems emphasize accountability, victim restoration, and retribution as reasons to punish underage offenders. In fact, American juvenile systems will remove the most egregious offenders to criminal courts for trial and sentencing. The United States Supreme Court in recent years, however, has issued a number of opinions emphasizing that the Eighth Amendment requires that the punishment of children must account for their lesser moral culpability, developmental immaturity, and potential for rehabilitation.State courts also have begun to reconsider their own dispositional and sentencing schemes in light of the Supreme Court’s jurisprudence.

The reality of` juveniles’ immaturity militates in favor of a right to redemption. This Article begins by discussing the available data about the number and types of dispositions juveniles receive, waivers to criminal court, and the criminal sentences imposed. The analysis also considers the collateral consequences for minors who are adjudicated delinquent or who are criminally convicted. The discussion then turns to the effects of juvenile and criminal court involvement on children and the subsequent impact on life outcomes. The analysis considers theoretical, jurisprudential, and constitutional implications of juvenile sentencing with a special emphasis on the Supreme Court’s recent decisions. This Article concludes with the proposal for the contours of a right to redemption and its implications for reform to the current system and suggests strategies for the individual defense lawyer.


Incomplete Sentences: Hobby Lobby’s Corporate Religious Rights, the Criminally Culpable Corporate Soul, and the Case for Greater Alignment of Organizational and Individual Sentencing

Kenya J.H. Smith

Part I of this Article explores the history and policies that explain the disparate sentencing treatment of organizations and individuals under the Reform Act and attendant sentencing guidelines. Part II examines the history and evolution of personhood theories underlying these policies and resulting statute and guidelines. Part III examines the Hobby Lobby decision and how the Supreme Court’s recognition of a business corporation’s religious rights necessarily implicates the existence of a corporate soul, making those entities morally culpable and justifying greater alignment of the goals and sentencing options provided in the Reform Act and attendant guidelines. Part IV addresses the argumentsagainst amending the Reform Act and attendant guidelines for greater alignment of individual and organizational sentencing. The Article concludes that the Reform Act and attendant sentencing guidelines should be amended to better reflect the organizational soul and corresponding criminal culpability implicated by the Hobby Lobby Court’s recognition of business corporations’ religious rights.



Comments

The Lack of Money is the Root of All Evil: Louisiana’s Ban on Bail Without Surety

Gabriel Loupe

Part I of this Comment provides a historical overview of bail, due process, and Article 334.4. Part II discusses the challenge put forth in Faulkner v. Gusman, including the state’s responses to the petition and the ultimate judgment of the court. In Part III, newly released data on Louisiana bond amounts is used to dispute several claims of the Faulkner court and analyze the constitutionality of Article 334.4, concluding that the article potentially violates procedural due process, equal protection, and the excessive bail clauses of the Louisiana and the United States constitutions. Finally, Part IV provides reasons for the repeal of Article 334.4 and explores policy considerations pursuant to such an action, including the effects of pretrial detention on conviction rates and sentencing.

Cell Phone Location Tracking: Reforming the Standard to Reflect Modern Privacy Expectations

Shannon Jaeckel

Part I of this Comment discusses the history of CSLI technology and the relevant federal statutes. This section explains the mechanics and content of CSLI data; additionally, it illustrates recent advances in CSLI technology and the importance of this information to law enforcement. Part II analyzes the three most recent federal circuit court decisions in this area of the law. These cases identify the analytical problems surrounding CSLI and illustrate the extent to which courts have addressed these problems. Part III examines state responses to CSLI with a particular focus on how Louisiana courts and the Louisiana legislature have approached the issue in comparison with other states. Part IV proposes that the Louisiana legislature be proactive in adopting a comprehensive CSLI statutory scheme rather than waiting for federal action. Specifically, the courts should interpret the Louisiana Constitution more expansively to provide additional privacy interest protections than currently exist under federal law, and the Louisiana legislature should codify this privacy interest and provide detailed guidelines. This solution is most apt to resolve the problems surrounding Louisiana for two reasons. First, it will vest a constitutionally protected interest. Second, it allows the Louisiana legislature, which is charged with adopting policies that benefit its citizenry, to adopt legislative rules that balance the government’s interest in conducting effective investigations with the public’s privacy interests in CSLI.

The Road to Understanding the Confrontation Clause: Ohio v. Clark Makes a U-Turn

Julien Petit

Part I of this Comment discusses the Confrontation Clause and summarizes the state of the law before Ohio v. Clark. Part II explains the holding and reasoning of the Court’s decision in Ohio v. Clark. Part III analyzes the problems that the decision caused and how these problems affect the admissibility of statements into evidence. Part IV proposes a two-part test to be applied under the Confrontation Clause, eliminating confusion and providing a clear analysis for lower courts to adopt.

By the Pricking of My Thumbs, State Restriction This Way Comes: Immunizing Vaccination Laws from Constitutional Review

Megan Joy Rials

This Comment argues that states should not allow philosophical exemptions and should either retain or create religious exemptions that meet certain requirements under the Free Exercise Clause, the Due Process Clause, and the Establishment Clause. California and Louisiana differ in their approaches to vaccination laws. As a result of the California legislature’s controversial response to the Disneyland measles outbreak by banning philosophical and religious exemptions, California is now among the few states with the strictest vaccination requirements. In contrast, Louisiana is among the states with the laxest vaccination laws, which allow for both exemptions.  Under the proposed solution, California should modify its law to allow religious exemptions, and Louisiana should ban philosophical exemptions.