Volume 77, Issue 3

 Complete Index of Volume 77, Issue 3


Precarious Possession

John A. Lovett

Acquisitive prescription is a time-honored institution in civil law property regimes generally and in Louisiana property law in particular. Precarious possession is an equally important concept. A recent Louisiana Supreme Court decision, Boudreaux v. Cummings, 167 So.2d 3d 599 (La. 2015), has raised important questions about the intersection of acquisitive prescription and precarious possession in Louisiana law. This article reconstructs the law of precarious possession to answer some of those questions. It traces how Louisiana’s two-tier institution of good and bad faith acquisitive prescription emerged from Roman law and pre-codification French and Spanish law, discusses how French commentators interpreted their codified version of that law and approached the problem of precarious possession with caution, and defends the continuing viability of Louisiana’s two-tier institution of acquisitive prescription. The article then reviews a significant body of Louisiana case law addressing precarious possession in the context of possessory actions and acquisitive prescription. It demonstrates that in two categories of cases—those involving true strangers and persons involved in contractual or legal status relationships—Louisiana courts reach defensible and consistent outcomes. But it argues that in a third category of cases—those involving neighbors who know each other well or members of the same close-knit community—courts face acute challenges and produce inconsistent results. The article contends that to resolve this third category of cases with greater sensitivity to the virtue of property sharing and to the specific relational context of these disputes, Louisiana law would benefit from the adoption of a presumption of sharing and concomitant indicia of giving or renunciation.

A First Amendment Deference Approach to Reforming Anti-Bullying Laws

Emily Suski

This Article explores the problems associated with school exclusion as a response to bullying in light of the complicated nature of the problem and the attendant First Amendment concerns. It argues in favor of drawing on First Amendment jurisprudence, particularly by deconstructing rationales for the deference afforded schools to suppress student speech, to develop better, more comprehensive legal approaches to combatting bullying that also address those First Amendment concerns. In doing so, it also seeks to fill a gap in the literature on bullying. Although scholars have explored the limits that the Constitution, including the First Amendment, places on antibullying laws, they have not done so in light of the complicated nature of the problem, the interventions called for in response, or by examining the rationales for public school deference to suppress student speech.

Seeking a Definition of Medical Futility with Reference to the Louisiana Natural Death Act

Frederick R. Parker Jr.

This Article addresses the specific issue of how the Louisiana Act might inform the question of whether, or in what circumstances, treatment can be so futile that a patient has no positive right to receive it. As this issue most commonly arises in the context of permanently incapacitated patients whose surrogates speak on their behalf, it would be appropriate to first consider the relevance of a patient’s decisional capacity to the question. As a preliminary matter, this Article begins by discussing the concept of personhood and the relevance of capacity to the right of a severely incapacitated patient to accept or refuse treatment.

Domestic Drone Surveillance: The Court’s Epistemic Challenge and Wittgenstein’s Actional Certainty

Robert Greenleaf Brice & Katrina L. Sifferd

This Article examines the domestic use of drones by law enforcement to gather information. First, Part I considers the Fourth Amendment and the different legal standards of proof that might apply to law enforcement drone use. Part II then explores philosopher Wittgenstein’s notion of actional certainty. Part III discusses how the theory of actional certainty can apply to the Supreme Court and its epistemic challenge of determining what is a “reasonable” expectation of privacy. This Part also investigates the Mosaic Theory as a possible reading of the Fourth Amendment.


Mind the Gap: Bridging Gender Wage Inequality in Louisiana

Katilyn Hollowell

Currently, a woman in Louisiana has several methods to claim wage discrimination, including filing a claim under federal or state law. However, these laws are insufficient and do not offer adequate protections to employees, specifically because Louisiana operates under two equal pay regimes, thus affording better protections to one group of working women over others. Louisiana employees need a new statutory regime that is efficient, clear, and gives all employees equal rights and protections regardless of gender or employer. This regime should provide protection to both public and private employees in Louisiana. Therefore, the Louisiana Legislature should modify and pass Senate Bill 219, which failed during the 2015 Regular Legislative Session.

Unveiling Management’s Crystal Ball

Eric R. Harper

Have you ever wanted to look into a crystal ball and predict the future Although not always accurate, most companies have the ability to look into their “crystal ball” and make predictions for the future of the business. Companies may disclose this forward-looking information to shareholders or potential investors, but may also choose not to unveil the crystal ball, considering that the predictions could have a negative impact on their current stock prices. If a company’s investors suspect a company’s statements were materially false or misleading, the investors may bring a securities fraud class action lawsuit, claiming the company omitted certain material forward-looking information that likely would have had a negative impact on revenues and profits.

Hey Employer, Did You “Notice” My Text Message?

Melissa J. Shaffer

Part I of this Comment provides an overview of the FMLA and corresponding federal regulations, focusing on the purpose of the 2009 revisions and the policy concerns underlying the FMLA. Part II examines the ambiguous language of the FMLA notice provisions and the conflicting jurisprudence in cases of unforeseeable leave, examining each element of notice—timing, content, and form. Part III analyzes the implications of the current state of the law on employers and employees. Part IV argues that Congress should amend the Code of Federal Regulations to include a two-step notice process in cases of unforeseeable leave to clarify the law and provide employers and employees with more consistency and security.

Inconsistency with the Internal Consistency Test

Mackenzie Catherine Schot

Part I of this Comment provides an overview of the erratic history of state taxation under the dormant Commerce Clause. Part II explains the divided Supreme Court’s most recent analysis in Comptroller of the Treasury of Maryland v. Wynne. Finally, Part III argues that the Court correctly chose the internal consistency test as the leading standard but should have presented its final decision more clearly.