Volume 77, Issue 2

 Complete Index of Volume 77, Issue 2


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.


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.