Robert Thibeaux
Elizabeth R. Carter
Katherine Shaw Spaht
Sally Brown Richardson
Symeon C. Symeonides
John A. Lovett
Nikolaos A. Davrados
Endya L. Hash
Derbigny Willis
Colton V. Acosta
Arthur R. Miller
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.
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.
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.
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.
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.
Jonathan D. Grossberg
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.
Alexander B. Lemann
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Alex Robertson
This Article analyzes the relevant Louisiana Civil Code articles relating to when solidarity should apply, Louisiana courts’ interpretations of those articles leading up to Hoefly, and the expansion of the Hoefly test in the insurance context. It articulates four possible defects in the Hoefly test and illustrates each defect with a discussion of post-Hoefly jurisprudence. Finally, this article suggests that courts analyze solidarity arising from the law based on a plain reading of the Civil Code, requiring the legislature to decide expressly—guided by public policy— which obligors are solidarily bound.
Stephanie B. Laborde, James E. Moore Jr., & Heather Landry
This Article discusses developments in LIGA Law. It endeavors to set forth the current state of the settled law and to discuss the areas that remain subject to conflict or judicial interpretation. This Article first discusses the character and purpose of LIGA and then the applicable procedures for suing and defending cases involving LIGA. A substantive discussion of the defenses and statutory limits to LIGA’s obligation to pay claims will be followed by an analysis of the application of LIGA Law to the insured. Finally, this Article concludes with a discussion of settlements and judgments in the context of these cases and which version of LIGA Law applies to a specific claim.
Paul A. Diller
The first installment of this two-part Article series illustrated how the federal and state lawmaking processes disadvantage urban areas. Part I of this second installment of this two-part Article discusses the impact of the urban disadvantage on federal preemption and possible doctrinal remedies thereto. Any potential remedies run into two hard-and-fast federal constitutional rules: first, that all states are to be treated equally; and second, that cities and states are conflated under federal preemption analysis. If committed to curing the urban disadvantage, the Supreme Court might reconsider these doctrines, but this Article takes these doctrines as a given. Part II of the Article then explores the doctrines that grant and limit local power at the state level, fleshing out constitutional home rule in more detail. Part III explores the possibility of using constitutional home rule to help cure the urban disadvantage that exists in many state legislatures. Part III also highlights the peril of constitutional home rule inadvertently strengthening populations in areas whose views are already sufficiently represented, if not overrepresented, at the national and state levels. Part IV turns the lens of the Article’s analysis to local government itself and asks whether its structural design can bear the responsibility that would accompany the power to enact legislation that is immune to state legislative override. Finally, Part V examines what effect an emboldened constitutional home rule, which technically and most directly affects state– local relations, might have on the federal order.
Jared A. Clark
Part I of this Comment provides background on mobile homes and the demographics of the people who own these homes. Part II discusses Louisiana’s laws on eviction in general and the problems these laws cause for mobile home owners in particular. Part III surveys mobile home eviction laws in other jurisdictions to find a more equitable approach for Louisiana. Part IV proposes a unique solution for Louisiana to alleviate the problems mobile home owners face in eviction. Specifically, this Comment argues that Louisiana should move away from the trend of other states in promulgating “good-cause” statutes and instead apply a different regime that more fairly balances the rights of both the landowner and the mobile home owner.
Cody J. Miller
Part I of this Comment provides background information on the fundamentals of proper civilian interpretation of the Civil Code, which contains the law on predial servitudes, acquisitive prescription, and possession. Putting these foundational principles into the context of a specific property law conflict, Part II explains the Louisiana Supreme Court’s decision in Boudreaux v. Cummings, revealing the problems that arise from the Court’s failure to distinguish between a servitude and the underlying land. Part III explores how the Court’s application of civilian methods were incomplete. Part IV presents both a retrospective solution and a prospective one for future cases despite the improper civilian approach used in Boudreaux. It advocates for Louisiana courts to return to their civilian roots and approach confusing legal issues with the clarity and categorization of civilian deductive reasoning.
Henry S. Rauschenberger
Part I of this Comment provides an overview of Louisiana’s law of filiation and how it has given rise to the doctrinal problem of dual paternity. Part II describes the Louisiana Supreme Court’s attempt to mitigate the harm caused by the doctrine with its decision in Lowrie, by explaining the decision in full and discussing its effect. Part III details the problems that still remain with the doctrine of dual paternity post-Lowrie. Part IV suggests a solution for the problem of forced dual paternity through modification the legal provisions which give rise to it. Finally, the Addendum addresses changes made by the legislature to Louisiana’s law of filiation after this Comment was accepted for publication.
Alex Hotard
This Comment explores the enforceability of real rights of noncompetition in Louisiana. Part I provides background on Louisiana real rights and personal obligations. Part II examines how Louisiana courts have embraced certain real rights of noncompetition. Part III argues that Louisiana’s enthusiastic acceptance of these rights oversimplifies the law of real rights and ignores important public policy concerns. Part IV proposes a legislative solution to these problems and attempts to reconcile legitimate business interests with the best interests of the state.