Volume 80, Issue 2

Complete Index of Volume 80, Issue 1


Articles


In Times of Chaos: Creating Blueprints for Law School Responses to Natural Disasters

Jeffrey R. Baker, Christine E. Cerniglia, Davida Finger, Luz Herrera, and JoNel Newman


Comments

Madeleine K. Morgan


Delery H. Perret


Misuse of the “Reasonably Anticipated Use” Standard in Louisiana Products Liability Act Jurisprudence

Steven E. Spires


 

Volume 79, Issue 1

Complete Index of Volume 79, Issue 1


Articles

Comments

Christopher R. Handy


Sara Daniel


Don’t Rock the Boat: Developing a Uniform System of Maritime Punitive Damages After Baker and Townsend

Josie N. Serigne

Volume 78, Issue 4

Complete Index of Volume 78, Issue 4


Dedications

Robert Thibeaux



Articles


Nikolaos A. Davrados

 


Comments

Endya L. Hash


Derbigny Willis


Alexander v. Express Energy Operating Services, L.P.: The Fifth Circuit’s Voyage Away from Reality and the Seamen Renounced in Its Wake

Colton V. Acosta

Volume 78, Issue 3

 Complete Index of Volume 78, Issue 3


Articles

This Article argues that the Federal Rules of Civil Procedure have greatly diverged from their initial purpose: giving people access to a meaningful day in court. At its inception, the Federal Rules of Civil Procedure were a Gold Standard that envisioned a trial and, when appropriate, one before a jury. This Article contemplates the changes to the Rules, and whether the Rules still embody this Gold Standard. In examining these changes, the Author focuses on one difficult question: what is the purpose of federal courts today? First, this Article addresses procedural barriers that have been created over the years making litigation in federal courts more difficult. Next, it addresses the privatization of the dispute process though alternative dispute resolution methods. After addressing privatization, the Article looks at multidistrict litigation and judicial case management. Lastly, the Article examines why these changes in federal practice have occurred.


This Article encompasses a three level analysis of the content-of-laws enquiry in International Arbitration. Firstly, it explores the theoretical underpinnings and the various approaches articulated in legal theory to the establishment of the content of the applicable law in international litigation and arbitration. Secondly, on the basis of an elaborate comparative review of the various legal regimes and jurisprudence in the most frequently selected venues of arbitration, namely England & Wales, France, Hong Kong, Singapore, Switzerland, the State of New York (USA), and Sweden, as well as in leading investment arbitration fora, it challenges conventional wisdom by showcasing the emerging trend toward the application of a “facultative” jura novit arbiter principle in international arbitral proceedings. Thirdly, it delineates a clear modus operandi for arbitral tribunals and national courts reviewing arbitral awards in annulment proceedings and offers model clauses, arbitration rules, and national law provisions on the content-of-laws enquiry. Finally, it concludes with remarks and observations that amplify the importance of continuous governing law related consultations between the parties and the arbitrators throughout the arbitral proceedings and, certainly, before the tribunal has rendered its final award.


Santiago Legarre

This Article argues that the United States Constitution—or any constitution, for that matter—should be interpreted“morally,” and that the morality used in this interpretative venture ought to be natural law morality. To begin, this article explains what natural law is not. Next, an overview of what natural law means for the purposes of this Article is provided as well as a clarification of  how natural law connects to positive law. Next, the Article argues that natural law can factor into constitutional interpretation in subtle but significant ways. More specifically, this Article suggests that natural law has two different levels of presence in constitutional law. The interpretation of constitutional norms, this Article argues, is more moral with regard to one of the two modes of connection and more technical with regard to the other mode. Finally, this Article offers some conclusions about the role of natural law interpretation.


Stranger than Fiction: How Lawyers Can Accurately and Realistically Tell a True Story by Using Fiction Writers’ Techniques that Make Fiction Seem More Realistic than Reality

Cathren Page

This Article illustrates how attorneys can make their true stories actually appear so by using some of the same techniques that fiction writers use to make fiction seem real. First,  this Article provides a brief overview of Applied Legal Storytelling. Next, it explains the concept of verisimilitude and outlines some of the traits of the concrete details chosen. Finally, it provides examples from fiction and from law, analyzes those examples, and makes comparisons and distinctions.


Comments

Sara B. Kuebel

This Comment gives a brief overview of admiralty jurisdiction as well as the scope of maritime law, the sources of maritime law, its general principle of uniformity, and the remedies available to seamen. Next, it analyzes the chronology of cases addressing maritime punitive damages and illustrates the split in the Eastern District of Louisiana concerning whether a Jones Act seaman may recover punitive damages from a third-party non-employer. Additionally it argues that punitive damages remain available under general maritime law and that these damages are available to a Jones Act seaman against a third-party non-employer. To best achieve uniformity in maritime law, this Comment proposes that the law should afford seamen and non-seafarers the same protections under general maritime law against non-employers.


Malerie Leigh Bulot

This Comment examines the Second Amendment and various state Parking Lot laws and their exceptions. It also presents courts’ and scholars’ determinations on the constitutionality of Parking Lot laws. Next, it explains the tort of wrongful discharge itself as it varies among the states along with the public policy and whistleblower exceptions to at-will employment. Next, it focuses on a recent United States Fifth Circuit Court of Appeals case, Swindol v. Aurora Flight Sciences Corporation, in which the Fifth Circuit became the first court to recognize a gun-storing employee’s right of action against a former employer who violated a state’s Parking Lot law. After analyzing Swindol, it determines that the Swindol court correctly decided the case after generally analyzing the rationale of wrongful discharge in violation of public policy (“WDVPP”) and the public policy considerations behind the enactment of Parking Lot laws. It also argues that in the event a state does not recognize WDVPP, the existence of a whistleblower statute nonetheless will provide a right of action to an employee terminated for storing guns in his vehicle on company property. Finally, it surveys the employment laws of Utah and Louisiana, which respectively include the WDVPP tort and the whistleblower statute, and examines the circumstances surrounding their Parking Lot laws’ enactment.


You Sell Molly, I’ll Sell Holly: Prosecuting Sex Trafficking in the United States

Tiffany Dupree

This Comment describes the many facets of sex trafficking and addresses common misconceptions related to the crime. Additionally, it explains why sex trafficking laws rarely are used in prosecution despite substantial improvements in federal and state sex trafficking laws. Moreover, it poses two solutions that, when combined, will greatly decrease instances of sex trafficking. Making sex trafficking a strict liability crime and implementing innovative prosecution strategies equips the United States with the tools it needs to win the fight and finally abolish sex slavery.


Criminalization of Cyberbullying: The Constitutionality of Creating an Online Neverland for Children Under a Tinker-Bell Analysis

Randall Morgan Briggs

This Comment asserts that Louisiana’s criminal cyberbullying statute is unconstitutional because it extends beyond the exceptions to First Amendment protections recognized by the Supreme Court and the United States Fifth Circuit Court of Appeals and thus criminalizes constitutionally protected speech. First, this Comment discusses the history and significance of the fundamental right of free speech in the United States and exceptions to First Amendment protections recognized by the Supreme Court. Also, it explores Supreme Court jurisprudence and subsequent lower court decisions regarding speech relevant to criminalizing cyberbullying. Additionally, it analyzes the constitutionality of Louisiana’s cyberbullying statute under the First Amendment of the United States Constitution and the Louisiana Constitution. Finally, it proposes changes to the statute to provide the greatest constitutional protection for children.

Volume 78, Issue 2

 Complete Index of Volume 78, Issue 2


Articles

This Article argues that courts should reformulate the three tests that the courts use in applying the step transaction doctrine as two objective tests: (1) an objective test for arms-length transactions based on the law of offer and acceptance; and (2) an economic reality test for transactions between related parties. These new tests provide conceptual clarity and promote predictability while simultaneously protecting the public treasury. The new tests borrow concepts from contract and commercial law and demonstrate that tax law shares similar concerns with other areas of law, a proposition that sometimes is doubted. This Article contends that the step transaction doctrine, as reformulated, should be available for assertion by taxpayers in transactions between unrelated parties. Acknowledging the availability of the test for assertion by taxpayers will have the salutary effect of aligning the description of doctrine with its application. This Article provides background regarding the judicial development of the step transaction doctrine and scholarly efforts to provide a conceptual framework. The Article further elaborates on the proposed new tests and the offensive use of the step transaction doctrine as well as the implications of adopting the new tests. Additionally, this Article points to fruitful avenues for future exploration, connecting some of the specific issues discussed in this Article to broader themes in legal theory.


This Article begins the process of thinking through the ways in which some form of repair following a natural disaster might be offered to those who are prevented from pursuing their own private form of recovery. First, this article discusses the problem of retreat from flood-prone areas and reviews the array of legal mechanisms that have been put forward as ways of encouraging it, with particular emphasis on the call to abandon certain areas in the wake of floods. Secondly, it presents a set of analogies that help explain the intense desire to rebuild after floods. These observations lead to new insights about what rebuilding accomplishes and why forbidding it has proven to be so difficult. Finally, it considers some of the ways in which the desire to rebuild might be satisfied, at least partially,without moving people back into harm’s way.


Christine D. Allie

This Article examines the current role of the mandatory married filing status as a family penalty present in the tax code. First, this Article examines the historical underpinnings for the current construction of the tax code. Secondly, it reviews the 1951 and 1969 reforms, and reactions to those reforms, which converted the code from pro-family to a structure that penalizes marriage for those with and without children. Furthermore, this Article focuses on three particular provisions that affect tax liability by marriage or by children within and without a marriage unit for the true effect of potential marriage and family penalties to be confronted. Finally, this Article concludes that adherence to mandatory marriage status filing to achieve any version of equity is an incompetent pursuit.


Making CLE Voluntary and Pro Bono Mandatory: A Law Faculty Test Case

Rima Sirota

This Article argues that the time is ripe to eliminate mandatory CLE and to explore replacing mandatory CLE hours with required pro bono service hours. First, it documents the enormous reach and substantial cost of mandatory CLE—all without any evidence of efficacy. Secondly, this Article establishes that regulations protecting the legal profession both substantially contribute to the vast need for free legal representation and justify a pro bono requirement for attorneys. Further, this Article explores obstacles to eliminating mandatory CLE and requiring pro bono, including political opposition and the absence of mandatory pro bono models. It responds to this problem with a proposal: encouraging law faculties to impose pro bono requirements on themselves with the incentive of eliminating their mandatory CLE obligations. This faculty test case model offers enormous potential benefits for the indigent clients who would be served, the law students who would find role models for a lifetime of service, the professors whose teaching and scholarship would be enriched, and the profession, which would gain much-needed experience with various approaches to mandatory pro bono.


Comments

Ben Wallace

This Comment introduces federal campaign finance regulation before summarizing Buckley v. Valeo, the root from which all subsequent campaign finance jurisprudence sprouted. Next, it presents a holistic overview of state nonresident contribution limits caselaw and then inspects recent Supreme Court decisions that altered the campaign finance jurisprudential landscape within the context of the First Amendment. Next, it analyzes the constitutionality of nonresident contribution limits, weaving in policy reasons supporting the invalidation of such laws. Finally, it examines the extent to which states should have the power to restrict any political activity to their own residents without violating the First Amendment.


Kristin E. Oglesby

This Comment examines the legal principles behind revenue rulings, discussing the two main standards of deference that may be afforded to administrative rulings generally and assessing how various courts have treated revenue rulings. Further, it discusses applicability of the standards of deference to IRS revenue rulings in light of the Supreme Court decision in United States v. Mead Corp and the problems that have arisen post-Mead. Particularly, it explores the standards behind agency promulgations that have the force and effect of law. Additionally, it assesses revenue rulings and discusses the various reasons why the rulings are entitled to substantial judicial deference. Next, it offers a solution to alleviate the uncertainty of the deference afforded to revenue rulings, focusing on revenue rulings in the context of charitable organizations. Finally, it advocates a call for deference to revenue rulings. This Comment concludes by arguing that revenue rulings are entitled to Chevron deference as it is both plausible and logical given the level of certainty taxpayers desire, the expertise of the IRS, the method by which revenue rulings are generated, the penalties associated with noncompliance, and the social policies particular to charitable organizations.


Over-Manipulated and Under-Funded: Louisiana’s Pension Problem and Its Impact on Public Employees

Alyssa Depew

This Comment provides background information on Louisiana’s current pension system, specifically the role of larger pension programs, such as LASERS and TRSL. It also includes significant historical changes in the Social Security system and Louisiana’s legislative history regarding both its state pensions and Social Security. Next, it examines the current financial state of Louisiana’s two largest pension programs: LASERS and TRSL. Moreover, it introduces an empirical strategy to estimate the differences in retirement income between individuals affected by their state’s participation in Social Security. Finally, it proposes reform measures and recommendations for Louisiana’s public pensions and addresses barriers to such reform. Implementation of these proposals will allow for greater security for individuals upon retirement and will ease the burden placed on taxpayers.


Ain’t No Sunshine When It’s Gone: The Future of the Louisiana Solar Initiative After the Demise of the Solar Energy Income Tax Credit

Michael Seibert

This Comment recommends a policy change in Louisiana’s solar panel incentive structure. It provides a background on three solar panel incentive programs. Next, it gives an overview of Louisiana’s current solar incentive legislation. Moreover, it surveys three states that have successful solar incentive policy programs, discusses the details of their programs, and analyzes why they have been successful. Finally, it elaborates on the benefits provided by solar energy and argues that Louisiana should continue to incentivize solar energy, which will result in lowering the level of Louisiana’s contribution to greenhouse gas emission without impacting the state’s budget.