The Louisiana Law Review Volume 81 Board of Editors and Senior Associates would like to extend our congratulations to the newly selected Volume 81 Junior Associates. It is a great honor to be selected as a Junior Associate, and we are very excited to introduce them to you!
The Louisiana Law Review Editorial Board and Senior Associates welcome the following:
by Hunter Hewell, Senior Associate
Much like in the federal court system, Texas courts require each party in a suit to pay for their own attorney’s fees. Some circumstances, however, allow for fee-shifting, in which the prevailing party may recover its attorney’s fees from the opposing party. This fee-shifting arrangement is subject to certain requirements: (1) it must be authorized by statute or contract and (2) the party seeking its attorney’s fees must prove the reasonableness of the fee. Although these requirements seem straightforward, courts throughout Texas have struggled with what methodology must be used and what facts the party seeking its attorney’s fees must present to determine the reasonableness of attorney’s fees once a fee-shifting authorization statute is invoked. In 2019, the Texas Supreme Court passed down the Rohrmoos ruling, which specifically addressed what methodology courts and attorneys must use to determine how attorneys’ fees should be apportioned under these circumstances.
by Monica Bergeron, Senior Associate
I. An Introduction to Civil Asset Forfeiture
Tonya Smith and her husband were casino-hopping in West Virginia when the police pulled them over for illegal use of a lane. The officers searched the car for drugs, but finding none, seized $10,478 in cash and gift cards that the couple had with them—without charging either of them with a crime. In another forfeiture case, Isiah Kinloch had just called 911 after a man broke into his home and assaulted him. When the police arrived, they searched his apartment and found one ounce of marijuana and $1,800 in cash. They kept the cash. In both of these cases, law enforcement was able to seize private property under the guise of civil asset forfeiture, the infamous practice “so contrary to a basic sense of justice and fairness” that it is often referred to as “legalized theft.”
Civil asset forfeiture allows a state to seize, sell, and retain part of the proceeds of private property simply based on the assumption that the property was either connected to, or the product of, criminal activity. Unlike criminal asset forfeiture proceedings that occur against an individual after a conviction, civil asset forfeiture proceedings are against the property itself, in rem, regardless of whether the State ever convicted the owner of the alleged criminal activity. Civil asset forfeiture therefore operates on the legal fiction that “the property itself is guilty.” Experts and commentators criticize civil asset forfeiture on many grounds, but primarily because of the high potential for, and evidence of, abuse. In most of the 47 states with civil asset forfeiture, the profits from the forfeited property go directly into the pockets of law enforcement agencies such as the police, the prosecutors, and the criminal court systems. Proponents of the practice argue that it targets career criminals, depriving them of their illegally acquired profits. Studies, however, show that the practice does little to take the bite out of serious crime and disproportionately targets minorities and the poor.
by Harrison Martin, Senior Associate
Title IX of the Education Amendments of 1972 (Title IX) is a federal law enacted to prohibit discrimination on the basis of sex in any educational program receiving federal financial assistance. Congress enacted Title IX to provide protection for student–victims of sexual discrimination and to avoid dispensing federal funds to schools that perpetuate those practices. The overwhelming majority of United States universities receive federal funding and are consequently required to abide by Title IX. Over the course of the 21st century, courts have experienced a spike in Title IX litigation primarily pertaining to sexual harassment in a university setting. In such cases, it is common for a student–victim’s harassment claim against the school to qualify as sexual discrimination, and, in turn, the student–victim invokes Title IX as the basis of a lawsuit.
Bose v. Bea, a 2020 Title IX sexual harassment case, falls within this framework. Bose’s significance lies in its instruction on how to properly approach a student’s Title IX sexual misconduct and retaliation claim against an educational institution. In a unique turn of events, the plaintiff raised an uncommonly asserted “cat’s paw” theory of liability to connect causation from a faculty member to the college. The Sixth Circuit Court of Appeals ruled against the plaintiff, emphasizing that a respondeat superior argument is not applicable in a Title IX case.
by Hannah Catchings, Senior Associate
In August 2016, catastrophic flooding inundated much of southern Louisiana, resulting in 10 deaths and economic damage estimates upwards of $8.7 billion. East Baton Rouge and Livingston parishes bore the brunt of that damage. Among the myriad properties that sustained extensive flood damage was Juban Crossing, a 471-acre mixed-use development located in Livingston Parish. Juban Crossing opened in 2015 and is owned by Creekstone/Juban I, LLC (“Creekstone”), a single asset limited liability company incorporated in Delaware. Following the flood, Creekstone’s insurer, XL Insurance America, a Delaware corporation, paid out $5 million pursuant to the company’s insurance policy; however, Creekstone subsequently filed suit in Livingston Parish seeking additional funds from XL Insurance. In response to the suit, XL Insurance filed a declinatory exception of improper venue, a peremptory exception of no cause of action, and a motion to dismiss, arguing that Creekstone’s policy contained a forum selection clause in which the parties agreed to litigate all disagreements in New York. Consequently, the principal issue in the case became whether the forum selection clause was enforceable. The case eventually reached the Louisiana Supreme Court, which held that Louisiana Revised Statutes § 22:868(A)(2) did not prohibit the enforcement of the disputed forum selection clause. This Lagniappe Post argues in favor of Justice Hughes’s dissenting opinion, in which he outlined three reasons why the majority’s approach was problematic, including public policy, party mischaracterization, and the “unsupportable reformation” of the insurance contract.