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Volume 75, Issue 3

Complete Index of Volume 75, Issue 3 



Articles

Louisiana Future Advance Mortgages: A 20-Year Retrospective

David S. Willenzik

This Article is an update and expansion of two previous 1994 articles on future advance Louisiana collateral mortgages and multiple indebtedness mortgages: D. Willenzik, Future Advance Priority Rights of Louisiana Collateral Mortgages: Legislative Revisions, New Rules, and a Modern Alternative, and M. Rubin, D. Willenzik, and M. Moore, Is the Collateral Mortgage Obsolete? Both of these articles were published at a time when the original 1990 version of Louisiana UCC Article 93 and the Louisiana collateral mortgage statute had been in effect for less than five years, and at a time when the 1991 comprehensive revisions to the mortgage articles of the Louisiana Civil Code had been in effect for less than three years. Louisiana collateral mortgage law has undergone significant changes over the past 20 years. The most important of these changes was the enactment of the 2001 comprehensive revisions to Article 9 of the Uniform Commercial Code, which apply to post-July 1, 2001 UCC pledges of Louisiana collateral mortgage notes and accessory collateral mortgages.


Ruminations on the Louisiana Law of Pledge

Michael H. Rubin

On January 1, 2015, Act 281 of the 2014 Louisiana legislative session took effect. Drafted by the Louisiana State Law Institute, the Act amends, revises, and reworks not only the Civil Code articles concerning the rules on pledge as a form of real security, but also the articles setting forth the basic principles of personal liability and security for loans. It also deals, in part, with judicial mortgages. Practitioners will find that, although many basic pledge concepts remain the same, there are a number of new rules, new procedures, and, in some cases, new prohibitions.


Commerce, Commonality, and Contract Law: Legal Reform in a Mixed Jurisdiction

Christopher K. Odinet

This Article is concerned with the tradition–reform dichotomy as it exists in certain jurisdictions that, because of their unique history and nature, are particularly susceptible to the struggle between legal tradition and legal reform—mixed jurisdictions. In order to more closely examine this struggle and its theoretical and practical effects, this Article analyzes the role that traditional legal institutions play in the law reform process through the lens of America’s lone mixed jurisdiction—Louisiana—and how this struggle results in an anchor-like legal conundrum.


Exploring Unexplored Frontiers: The Private Right of Action Under the Louisiana Securities Law

Stephen Miles

This Article explores the private right of action under the Louisiana Securities Law, noting interpretations of that law provided recently by courts in the wake of the financial crisis and recession. It also examines those provisions of the law that have not often been interpreted by the courts, offering comparisons of the language of Louisiana’s private right of action to that of its federal analogue, section 12(2) of the Securities Act of 1933, which may be utilized to fill the gap left by the dearth of Louisiana Securities Law cases that exists even after the 2008–2009 financial crisis.


Comments

The Intersection of Louisiana Succession Law and Mineral Code Article 190: Quantum Resources v. Pirate Lake Oil

Alexander Baynham

Part I of this Comment provides an overview of Louisiana law with respect to forced heirship and surviving spouse usufructs, and it also examines the legislative policies behind the enactment of Louisiana Mineral Code article 190 and the article’s application to usufructs that include mineral rights. Part II discusses the facts and holding of Quantum Resources v. Pirate Lake Oil. Part III analyzes the scholarly debate over the proper classification of the usufruct that a surviving spouse receives when forced heirs reduce a disposition in full ownership. Part III further provides the proper solution to this debate and discusses the solution in light of Quantum. Part IV then highlights the Louisiana Fifth Circuit Court of Appeal’s flawed reasoning in Quantum Resources v. Pirate Lake Oil in classifying the spouse’s usufruct and its application to Mineral Code article 190.30 This Part maintains that although the court reached the correct result, the proper classification of the usufruct in this case was a surviving spouse usufruct under Mineral Code article 190(B), which states that the usufruct is not subject to the open mine doctrine, and also cautions that, if followed, the court’s flawed analysis will cause incorrect results in future cases.


Covert Capture: Hydraulic Fracturing and Subsurface Trespass in Louisiana

Caleb Madere

Oil and gas are found in rock formations miles below the earth’s surface. These rock formations are sometimes so dense that the oil or gas does not easily flow through the rock. Hydraulic fracturing, or “fracking,” is the process by which the dense rock formation is fractured to release the trapped minerals. The recent boom in the natural gas industry owes much of its existence to hydraulic fracturing. Hydraulic fracturing has resulted in a substantial increase in the amount of recoverable gas, but it has also raised new legal issues. The issue taken up in this Comment is whether there has been an actionable subsurface trespass when fractures created by hydraulic fracturing extend beyond subsurface property lines.



Sharp Curves Ahead: Analyzing Dedications to Public Use in Louisiana after Webb v. Franks Investment Co.

Ben Jumonville

This Note argues that the majority in Webb v. Franks Investment Co. applied an incorrect standard for determining when formal dedications transfer ownership.Part I traces the history of dedication law in Louisiana, highlighting the varying, inconsistent approaches taken by Louisiana courts. Part II discusses the Webb decision and sets forth the arguments in Webb’s majority, concurring, and dissenting opinions. Part III critiques the Webb majority’s departure from the view of most Louisiana courts that formal dedications, unless stated otherwise, transfer ownership and explores the opinion’s troubling effects on dedication law in Louisiana. Finally, Part IV suggests that courts should stop deviating from the rule laid down by the Louisiana Supreme Court in St. Charles Parish School Board v. P & L Investment Corp. and apply a presumption that formal dedications transfer ownership. By doing so, this approach would be consistent with the principles and rules governing dedication in Louisiana and would reflect the original purpose behind the jurisprudential creation of formal dedication—the recognition of a mode of dedication that transfers ownership.


Of Butchers, Bakers, and Casket Makers: St. Joseph Abbey v. Castille and the Fifth Circuit’s Rejection of Pure Economic Protectionism as a Legitimate State Interest

Allison B. Kingsmill

The Fifth Circuit’s opinion in St. Joseph Abbey v. Castille comes at a seismic moment. In light of the circuit split, the Fifth Circuit’s decision demonstrates that neither precedent nor constitutional principles protect pure economic protectionism as a legitimate state interest. More importantly, however, the Fifth Circuit breathed life back into rational basis review, a test commonly misperceived as a “virtual rubber stamp” and “judicial abdication.” This Note proposes that courts should look to the Fifth Circuit as a revival of the rational basis standard of review in the due process and equal protection contexts rather than a rebirth of Lochnerian principles and judicial activism. Part I of this Note explains the constitutional principles underlying the Due Process and Equal Protection Clauses of the Fourteenth Amendment and traces the United States Supreme Court’s jurisprudence in the context of economic legislation. Part II examines the circuit split between the Sixth and Tenth Circuits on the issue of whether pure economic protectionism is a legitimate government purpose. Part III then discusses the Fifth Circuit’s decision in St. Joseph Abbey v. Castille. Part IV analyzes the reasoning of the opinion, and Part V considers the implications of the Fifth Circuit’s ruling and its effects on future economic legislation, particularly in Louisiana.