Volume 78, Issue 1

 Complete Index of Volume 78, Issue 1


Todd J. Clark

This Article chronicles the development and creation of the morals clause as a means to curb various types of expression. It provides a comprehensive background and historical context of the development of the implied obligation of good faith. Additionally, it explains how public policy considerations influence the enforceability of some contracts. Moreover, it analyzes the Rashard Mendenhall case that brought the issue of discretionary enforcement of morals clauses to light. It highlights the perils of providing corporations with the power to exercise their own discretion in unilaterally determining whether an athlete-endorser’s conduct is morally reprehensible. It provides a resolution to this problem and explains how the solution presented in this Article strikes a fairer balance between the interests of society, the endorser, and the corporation. Finally, it discusses the various types of speech that are protected by the First Amendment and how, by analogy, First Amendment jurisprudence can be used to determine what types of speech should be protected contractually.

This Article provides an overview of applicable NLRB authorities relevant to how private schools at the highest level, D-1, can regulate the speech and activities of their athletes. It also examines a line of cases that take a tortured route to a pronouncement from the NLRB Office of the General Counsel. Additionally, it analyzes the General Counsel Memorandum (“GCM”) and its application to student-athletes. It elaborates on fascinating legal distinctions and nuances articulated by the Board and General Counsel. The Article explores how an Advice Memorandum from an NLRB Regional Director can invalidate entire sections of a university’s policies regarding student-athletes. It sets out various hypotheticals that expand on existing circumstances to illustrate when social protests and activism are a protected activity under the Act. The Article provides a best practices model for affected universities to respond to the newly established relationship between institutions and student-athletes. The Article concludes with the futuristic application of employee status to categories of students beyond athletes and the repercussions rippling through academia’s private institutions.

Laura Rene McNeal

This Article offers a prospective path toward safeguarding students’ First Amendment free speech rights in K-12 schools by bridging the doctrinal gap between Tinker and Spence through the adoption of the Tinker-Spence Standard. In doing so, this Article seeks to make an important contribution to constitutional scholarship by clarifying and better safeguarding students’ freedom of expression rights in K-12 schools. It discusses Colin Kaepernick’s contentious national anthem protest and the controversy that followed, as high school students began to mimic his social activism. It also highlights the intersection of social activism and sports and the implications of this relationship for public school students. It provides an overview of free speech jurisprudence in K-12 schools. It critiques the inadequacy of current law and proposes the adoption of a new constitutional standard, the Tinker-Spence Test, to K-12 school environments to govern students’ symbolic speech rights. This Article concludes with a brief discussion of the importance of promoting civic education through the preservation of student freedom of expression rights.

Enhancing “Education”: Rebalancing the Relationship Between Athletics and the University

William W. Berry III

This Article argues for a rebalancing of the relationship between athletics and the university. Specifically, it challenges college presidents to leverage the economic growth of intercollegiate athletics to enhance the academic side of the university for all students. The university ought to utilize athletics to improve the institution, not sacrifice its core mission to serve the athletics department. To be clear, this rebalancing would be consistent with the core ideals that both the university presidents and the NCAA have been verbalizing for decades. The Article describes the shift from a symbiotic relationship to a more parasitic relationship, with athletics exerting dominance over the university at many institutions. It argues for a rebalancing—outlining a relational shift consistent with the values of the NCAA and the practices at some institutions. Finally, it addresses the practical obstacles to such a shift and provides a road map for universities to enhance the student-athlete educational model that the NCAA champions.

A Prelude to Jenkins v. NCAA: Amateurism, Antitrust Law, and the Role of Consumer Demand in a Proper Rule of Reason Analysis

Marc Edelman

This Article serves as a prelude to the litigation in Jenkins. This Article provides a brief overview of the current economics of NCAA Division I men’s basketball and NCAA Football Bowl Subdivision (“FBS”) football. It explores the underlying antitrust challenges to the NCAA’s “no pay” rules in both O’Bannon and Jenkins. Finally, it explains how the issue of consumer demand applies to the expected antitrust analysis in Jenkins, and why a strong consumer demand survey would help the plaintiffs to prevail in Jenkins.

Swinging at the Facts: How Baseball Informs Legal Argument

Josephine (Jo) R. Potuto

This Article focuses on why a batter at the plate is the ideal prototype for legal writing and analysis. Baseball is the only sport with its own widely recognized song and an iconic poem. Baseball is the subject of movies spanning from ribald comedies to biographies and histories to exercises in pure nostalgia. Writers F. Scott Fitzgerald, John Grisham, Bernard Malamud, and Ernest Hemingway all have used baseball or baseball players as a central focus or as important background context. Quotes from baseball personalities, real and fictional, are familiar even to non-sports fans. Baseball also has had real- world impact. Jackie Robinson’s breaking of the color barrier in baseball was a milestone in racial integration. The game also spawned the most famous sports cheating scandal ever to have occurred in American sports. Baseball has its own antitrust exemption. Its games not only are theoretically endless, but they also may be perfect. Its rules fascinate and intrigue legalscholars who have created a large canon of baseball legal lore.


Caroline Donze

This Comment examines the history of the clergy-penitent privilege from its biblical origins to its modern treatment in American courts. It surveys the status of mandatory reporting law in Louisiana and the rest of the United States, focusing on statutory exceptions for clergy. It explores the constitutional basis for abrogating the clergy-penitent privilege within mandatory reporting law. Finally, it considers a jurisprudential example of the negative effects of the privilege on the reporting of child abuse and contemplates potential avenues for encouraging Catholic priests to report abuse while still maintaining the integrity of the sacrament of Confession.

Sarah Nickel

This Comment discusses the MMA’s enactment, including the public policy concerns behind the Act, and details the advantages and disadvantages it entails for both health care providers and tort victims. It introduces Coleman, the source of the six-factor test, and argues that these factors are an insufficient test for determining malpractice claims in Louisiana. It discusses two Louisiana Supreme Court cases, including the recent decision of Dupuy v. NMC Operating Company, as examples of the unpredictability of the Coleman factors and of a court’s tendency to apply these factors broadly, contrary to Louisiana’s public policy on interpreting the MMA. Finally, it recommends legislative action to remedy the test for determining whether a certain claim constitutes malpractice and proposes an alteration of the Coleman factors as an interim solution for Louisiana courts.

Keeping “I Do” Between Two: A Post-Obergefell Analysis of Bigamous Marriage and Its Implications for Louisiana’s Matrimonial Regime

McLaurine H. Zentner

This Comment provides background on the United States Supreme Court’s recent expansion of individual rights and liberties and the significant ambiguities surrounding the Supreme Court’s interpretation of the Due Process and Equal Protection clauses of the Fourteenth Amendment. Additionally it analyzes Louisiana’s criminal bigamy statute and the issues surrounding the bigamous marriage debate generally. Furthermore, this Comment conducts a constitutional analysis of Louisiana’s criminal bigamy statute and highlights the central issues the statute raises. Lastly, it proposes that the Louisiana Supreme Court, if confronted with the constitutionality of Louisiana’s criminal bigamy statute, should decline to extend the fundamental right to marry to bigamous unions under a rational basis review. Instead, the Louisiana Supreme Court should hold the portion of the statute criminalizing bigamous marriage unconstitutional in light of Lawrence v. Texas and the greater privacy rights that Louisiana citizens enjoy under the state constitution.