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Volume 76, Issue 2

 Complete Index of Volume 76, Issue 2 


Articles

Proof Beyond a Reasonable Doubt: A Balanced Retributive Account

Alec Walen

Part I of this Article offers legal, historical, and sociological background on the use of the beyond a reasonable doubt ("BARD") standard. Part II examines and rejects a range of non-retributive, deontological, and generally maximalist accounts of the BARD standard. Part III examines consequentialist accounts of the SOP for criminal trials, showing that these accounts quite plausibly imply that the state should use a lower standard than the BARD standard, in some cases calling for a standard so low that it becomes clear that the connection to punishment is a mere fig leaf. Finally, Part IV, drawing a lesson from the faults of consequentialism, defends the retributive account of the BARD standard.


Comparative Jury Procedures: What a Small Island Nation Teaches the United States About Jury Reform

Joshua S. Sellers

The literature on the American jury too rarely considers the experience of other countries. This Article describes how the now over 200-year debate in the United States over the proper role and form of American jury practice suffers from the usually unstated, but typically unquestioned, premise of American exceptionalism, and suggests that American jury practice could benefit from considering what other systems may have to offer.


Choosing Among Imprecise American State Parentage Laws

Jeffrey A, Parness

This Article urges the courts to develop new state choice-of-law precedents that require the occasional employment of foreign state laws for certain imprecise parentage law issues, most often pursuant to a state interest analysis. Part I reviews choice of law in initial parentage proceedings. Part II introduces the varying forms of imprecise American state parentage laws. Part III explores exemplary cases involving judicial respect for earlier parentage determinations elsewhere, while Part IV examines exemplary cases on choosing imprecise parentage laws when there were no earlier determinations. Part V demonstrates how, in choosing between imprecise parentage laws, courts should not always choose forum law and should instead choose differing state laws in differing settings, as with childcare and child support issues.


The Odd Couple: The Estate Tax and Family Law

Margaret Ryznar

Part I of this Article examines the estate tax in various societies, both in classic redistributionist societies and in the modern United States. This Part then compares the estate tax to the income tax, analyzing why societies have better tolerated the latter. Part II establishes the link between family law and estate tax law, proposing that any significant changes to the estate tax would require a reimagining of family law.


Comments

Money in the Bank and Boots on the Ground: A Law- Policy Proposal to Make the Affordable Care Act Work in Louisiana

Lucas Self

In Part I, this Comment reveals the scope of the challenge, highlighting the factors that contribute to Louisiana’s shortage of healthcare providers. Part II provides an overview of the ACA’s changes to Medicaid and the legislation’s impact on doctors and hospitals. Part III discusses Louisiana’s reaction to the ACA, focusing on how the state’s actions have decreased available funding for healthcare providers. Part IV offers solutions to the healthcare provider crisis, including a discussion about the benefits of Medicaid expansion for Louisiana and the lessons Louisiana can learn from Arkansas and other states grappling with similar doctor shortages.


Death in the City: Gorman’s Flawed Application of the Direct Action Statute to Insured Political Subdivisions

Grant Tolbird

The competing opinions in Gorman reveal the deep disagreement over the application of the Direct Action Statute within the Louisiana Supreme Court, among the lower courts, and between the state and federal courts. The majority and the dissent differed substantially on the resolution of the following three issues: (1) whether the Direct Action Statute grants a substantive right to an injured plaintiff; (2) whether the distinction between occurrence policies and claims-made-and-reported policies is relevant to the outcome of the case; and (3) whether the notice requirement in a claims- made-and-reported policy violates the public policy considerations underlying the Direct Action Statute. The prior cases that applied the Direct Action Statute are not uniform in their answers, and unfortunately Gorman’s reasoning fails to adequately settle these issues.

Because Gorman’s reasoning is insufficient, this Comment will explain how the Court should have resolved these three contentious issues by analyzing how prior courts have applied the Direct Action Statute and the public policy considerations inherent in that law. Part I of this Comment will clarify the history behind Louisiana’s Direct Action Statute and explain how the courts have historically interpreted that law. Part II will discuss the facts behind Ms. Gorman’s lawsuit, the procedural history, and the Supreme Court’s ultimate holding in Gorman. Part III will analyze the majority and dissenting opinions in Gorman and discuss what the correct outcome should have been in light of the relevant jurisprudence and public policy. Part IV will propose a legislative solution to rectify the injustice of the majority’s overly broad holding. This proposed legislation will amend the Insurance Code to prohibit insurance companies from issuing claims-made-and-reported policies to political subdivisions of the state, so that these political subdivisions cannot avoid liability by failing to report claims. As long as the injury occurs during the policy period or the injured plaintiff files a claim during the policy period, victims will be assured that coverage exists for a political subdivision’s negligent actions.


A Watery Grave for Unseaworthiness Punitive Damages: McBride v. Estis Well Service, L.L.C.

Phillip M. Smith

In McBride, the Fifth Circuit correctly concluded that unseaworthiness punitive damages should not be available to seamen for three reasons. First, the reasoning of Townsend does not extend to unseaworthiness, because no significant history of unseaworthiness punitive damages exists, and the failure to pay maintenance and cure is a fundamentally different legal claim.Second, the unavailability of punitive damages under the Jones Act—a statutory negligence action for seamen—should be extended to unseaworthiness because the two claims typically involve a single legal wrong.Third, the court in McBride properly determined that courts should not distinguish the availability of unseaworthiness punitive damages between injured seamen and wrongful-death representatives. To preserve uniformity in admiralty and protect the interests of maritime commerce, the Supreme Court should address this issue and hold that unseaworthiness punitive damages are unavailable.

Part I of this Note provides background on the powers of Congress and the federal courts to create admiralty law and explicates the specific remedies that these branches have made available to seamen. Part II explains the Fifth Circuit’s recent decision in McBride and chronicles the uncertain history of maritime punitive damages. Finally, Part III analyzes whether unseaworthiness punitive damages should be available and concludes that the Fifth Circuit reached the correct result in McBride.

Policing Charitable Organizations: Whose Responsibility Is It?

Max Kallenberger

This Comment proposes a self-funded state regulatory organization that is responsible for charitable oversight and regulation within Louisiana, replacing the current regulatory system under the attorney general’s office. No perfect model or answer exists to the problem of properly regulating the charitable sector; however, this self-funded organization would help ensure proper regulation of Louisiana’s charitable sector and place authority in a dedicated enforcement body, whose only task would consist of overseeing charities.

Part I of this Comment provides an overview of charitable organizations and director fiduciary standards. Part II explains the current model of enforcement and the problems with the system. Part III discusses various scholarly proposals for new models of enforcement. And finally, Part IV explains why a self-funded regulatory organization best ensures proper oversight of charities and their directors.