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Volume 75, Issue 4

Complete Index of Volume 75, Issue 4 

Front Matter

In Memory of Professor James Winfield Bowers

Glenn G. Morris

Foreword: Volume 75—Of Legal Scholarship and the Louisiana Law Review

Paul R. Baier


Model Business Corporation Act as Adopted in Louisiana

Glenn G. Morris

Effective January 1, 2015, Louisiana adopted a customized version of the Model Business Corporation Act. The new Act replaces the former Louisiana Business Corporation Law (LBCL) and makes several coordinating changes in other areas of the law. The author served as the Reporter and Chair of the Corporations Committee of the Louisiana State Law Institute, the Committee that considered and modified the Model Act for adoption in Louisiana. Louisiana’s modifications to the Model Act were designed to do three things: (1) to adapt the Model Act to Louisiana’s legal system and terminology, (2) to retain some of the desirable features of existing law, and (3) to make what the Committee judged to be corrections or improvements in the Model Act provisions.

This Article summarizes the ways in which the new Act changes the law as well as those in which the law remains largely unchanged. This Article also points out the areas in which the Louisiana version of the Act differs from the Model Act, either by retaining the earlier Louisiana law on the subject, or by offering some new solution to the problem. Louisiana’s

Eliminating Landlord Retaliation in England and Wales—Lessons from the United States

Melissa T. Lonegrass

In their efforts to keep anti-retaliation initiatives in the United Kingdom afloat, tenant advocates point to common law jurisdictions around the world whose landlord–tenant law prohibits retaliatory conduct. New South Wales, Australia, New Zealand, and even the United States provide for these protections—why then should not the United Kingdom? Thus far, comparisons to foreign law have been limited and cursory, pointing only to the presence or absence of anti-retaliation regimes in the law. More comprehensive examination of retaliatory eviction regimes abroad—both in their letter and their application—is lacking. This Article seeks to contribute to the legal–political debate surrounding landlord retaliation in England and Wales by providing a detailed, contextual analysis of retaliatory eviction laws in the United States and their success at home.

Parts II and III of this Article review the ongoing efforts aimed toward prohibiting retaliatory eviction in England and Wales, highlighting the arguments that have led to a stalemate in the progress of law reform in those countries. Part IV then describes in detail the legal regimes that govern landlord retaliation in the United States. As Part IV demonstrates, U.S. anti-retaliation regimes are generally robust, with consensus emerging around strong tenant protections. Part V goes on to examine statistical and anecdotal evidence of tenant evictions that points away from the success of U.S. retaliatory eviction laws. Although this evidence seems to weigh against legal reform in the United Kingdom, Part VI argues that this is not the case. Instead, Part VI provides context for comparisons between the United States and the United Kingdom and concludes that existing legal and non-legal institutions in the United Kingdom will support anti-retaliation regimes in ways not currently possible in this country.

Sanctions for Frivolous Civil Appeals in Louisiana

Gail S. Stephenson

This Article reviews the jurisprudence from 1985 to 2015 applying article 2164 and examines the standard applied by Louisiana courts, the circumstances under which frivolous-appeal sanctions will be awarded, the procedural issues attorneys encounter, the types of sanctions awarded, the treatment of pro se litigants, and the ethical issues that arise. It concludes with recommendations for action by the courts and the Louisiana Legislature that could ultimately reduce the number of frivolous appeals.

Vendor’s Privilege: Adheret Visceribus Rei

L. David Cromwell

Whatever its origin, the vendor’s privilege has been a coveted and powerful form of security throughout Louisiana’s history. This Article begins with a short excursus recalling some central notions about the definition and nature of privileges and posits that there actually exist two different vendor’s privileges: the vendor’s privilege on movables and that bearing on immovables. After tracing the origin of both of these vendor’s privileges, this Article explores the policies underlying the privileges, requirements of registry, status of the privileges as real rights, events causing a loss of the privileges, and problems involving ranking. By focusing on the vendor’s privilege as an example, this Article seeks to illustrate, from a broader perspective, the reasons for the existence of privileges, the manner in which they relate to each other and to other forms of security, and the extent to which privileges can remain relevant in a modern civil law system.

In Pursuit of Bigfoot: Confronting Oil and Gas Mythology in Louisiana

J. Michael Veron

In the case of the mythology surrounding oil and gas in Louisiana, false beliefs continue to survive because their underlying premises are accepted as true regardless of whether the facts support them. Indeed, this Article shows that the evidence actually contradicts, rather than supports, their factual underpinnings.


Compensation for Nonpecuniary Loss: Revising Louisiana Civil Code Article 1998 to Reflect Litvinoff ’s Damage-Based Approach

Molly L. Csaki

Part I of this Comment discusses former Louisiana Civil Code article 1934, the legislation that governed the availability of nonpecuniary damages in Louisiana, and the effect it had on Louisiana jurisprudence. Part II analyzes the 1985 revision of article 1934, first discussing the drafters’ attempt to clarify the state of the law surrounding nonpecuniary damages, then highlighting the postrevision ambiguities. Part III evaluates why the restrictive interpretation given to current article 1998 by Louisiana courts has hindered its availability to serve litigants and is inconsistent with the original intent of the Obligations Committee. Finally, Part IV offers a model article that attempts to remedy the conflicting jurisprudence and legislation in Louisiana and to finally give Louisiana courts and practitioners guidance on the availability of nonpecuniary damages for the breach of conventional obligations.

At the Breaking Point: Adapting Louisiana Employment Noncompete Law to the Information Age

Jacob Ecker

This Comment proposes a multi-step approach to alleviate the current problems presented by Louisiana’s noncompete law. Since the problem of ambiguity as to what constitutes competition is largely of jurisprudential origin, Louisiana courts can solve the problem by focusing on the impact a former employee’s new employment would have on the former employer and enforcing the noncompete only if there is actual or likely competitive impact. With respect to the two-year restraint, legislative intervention is necessary. The Legislature should amend the employment noncompete statute to allow restraint of the former employee for a reasonable time up to two years, which would allow courts to consider the competing interests in each case and cut the enforcement period short where appropriate

Louisiana ’s Natural Servitude of Drain

Carson Haddow

This Comment attempts to answer these questions through an exegetical analysis of articles 655 and 656 with a comprehensive survey of the available doctrine and jurisprudence to provide a gloss on the rules for each of the servitude’s elements. Part I begins with a history of the drainage servitude and its predecessors, starting in Rome and moving through developments in French and Louisiana law. Part I concludes with an analysis of the servitude’s proper classification and a comparison to developments in other jurisdictions. Next, Part II presents and considers each formal element of the servitude as it currently exists under the Louisiana Civil Code. Part III considers the duties of each estate owner under the servitude and, in particular, what actions qualify as an “overburdening” of the servitude.

Is a Postmarital Agreement in Your Best Interest? Why Louisiana Civil Code Article 2329 Should Let You Decide

Christopher K. Ulfers

Part I of this Comment offers a historical analysis of marriage, marital contracting in general, and the evolution of marital contracting laws in Louisiana, providing insight into the changing nature of the institution and how such evolution will likely continue. Next, Part II outlines the specific justifications for revising article 2329, offering unique theories as to why the article no longer makes sense in the modern landscape of marriage. Shifting to a study of the differing approaches to the regulation of marital agreements, Part III analyzes how marital contracting is effectively governed in other United States jurisdictions. Lastly, Part IV offers two alternative options that Louisiana could utilize to revise article 2329 and effectively adapt its marital contracting policies to the modern world. As this Comment illustrates, article 2329 is a relic of the past, inefficiently governing the everchanging world of marriage and subjecting its participants to unnecessary burdens. The time is now to revise article 2329 and position the marital institution for a thriving future.