Volume 77, Issue 1

 Complete Index of Volume 77, Issue 1


Articles

Slavery Under the Thirteenth Amendment: Race and the Law of Crime and Punishment in the Post Civil War South

Peter Wallenstein

This Article takes Paul Finkelman’s focus on the origins and legacy of black as criminal and combines it—at a later time than under chattel slavery—with black as a laborer. With an end declared to individual ownership of enslaved laborers, new questions arose regarding the liberty and labor of former slaves. A legal, political, and economic struggle ensued over who would control black southerners’ liberty and labor—that is, whether it would be black southerners themselves who would hold this control. Part I recounts how the Thirteenth Amendment expressly permitted a recurrence of slavery, provided only that such enslavement constitutes a punishment for violating a criminal statute. Part II explores the new forms of slavery that spread across the South in ways more or less consistent with the language of the Thirteenth Amendment.


Restitution and the Excessive Fines Clause

Kevin Bennardo 

This Article offers solutions to further the conversation regarding the Eighth Amendment’s limits on restitution. The Excessive Fines Clause applies to payments that involve sufficient governmental involvement and are at least partially punitive.3 Criminal restitution satisfies both components and therefore falls within the compass of the Clause. To test for constitutional excessiveness, the amount of the restitution order should be aggregated with other monetary payments that constitute the Eighth Amendment “fine.” That cumulative fine should then be weighed against the gravity of the defendant’s offense conduct for gross disproportionality. Restitution should not be subjected to a special causation-based excessiveness test because causation is predominantly relevant to the compensatory aspect of restitution, not to its punitive aspect.


The Right to Redemption: Juvenile Dispositions and Sentences

Katherine Hunt Federle

The punishment of juveniles remains a troubling yet under-theorized aspect of the criminal and juvenile justice systems. These systems emphasize accountability, victim restoration, and retribution as reasons to punish underage offenders. In fact, American juvenile systems will remove the most egregious offenders to criminal courts for trial and sentencing. The United States Supreme Court in recent years, however, has issued a number of opinions emphasizing that the Eighth Amendment requires that the punishment of children must account for their lesser moral culpability, developmental immaturity, and potential for rehabilitation.State courts also have begun to reconsider their own dispositional and sentencing schemes in light of the Supreme Court’s jurisprudence.

The reality of` juveniles’ immaturity militates in favor of a right to redemption. This Article begins by discussing the available data about the number and types of dispositions juveniles receive, waivers to criminal court, and the criminal sentences imposed. The analysis also considers the collateral consequences for minors who are adjudicated delinquent or who are criminally convicted. The discussion then turns to the effects of juvenile and criminal court involvement on children and the subsequent impact on life outcomes. The analysis considers theoretical, jurisprudential, and constitutional implications of juvenile sentencing with a special emphasis on the Supreme Court’s recent decisions. This Article concludes with the proposal for the contours of a right to redemption and its implications for reform to the current system and suggests strategies for the individual defense lawyer.


Incomplete Sentences: Hobby Lobby’s Corporate Religious Rights, the Criminally Culpable Corporate Soul, and the Case for Greater Alignment of Organizational and Individual Sentencing

Kenya J.H. Smith

Part I of this Article explores the history and policies that explain the disparate sentencing treatment of organizations and individuals under the Reform Act and attendant sentencing guidelines. Part II examines the history and evolution of personhood theories underlying these policies and resulting statute and guidelines. Part III examines the Hobby Lobby decision and how the Supreme Court’s recognition of a business corporation’s religious rights necessarily implicates the existence of a corporate soul, making those entities morally culpable and justifying greater alignment of the goals and sentencing options provided in the Reform Act and attendant guidelines. Part IV addresses the argumentsagainst amending the Reform Act and attendant guidelines for greater alignment of individual and organizational sentencing. The Article concludes that the Reform Act and attendant sentencing guidelines should be amended to better reflect the organizational soul and corresponding criminal culpability implicated by the Hobby Lobby Court’s recognition of business corporations’ religious rights.



Comments

The Lack of Money is the Root of All Evil: Louisiana’s Ban on Bail Without Surety

Gabriel Loupe

Part I of this Comment provides a historical overview of bail, due process, and Article 334.4. Part II discusses the challenge put forth in Faulkner v. Gusman, including the state’s responses to the petition and the ultimate judgment of the court. In Part III, newly released data on Louisiana bond amounts is used to dispute several claims of the Faulkner court and analyze the constitutionality of Article 334.4, concluding that the article potentially violates procedural due process, equal protection, and the excessive bail clauses of the Louisiana and the United States constitutions. Finally, Part IV provides reasons for the repeal of Article 334.4 and explores policy considerations pursuant to such an action, including the effects of pretrial detention on conviction rates and sentencing.

Cell Phone Location Tracking: Reforming the Standard to Reflect Modern Privacy Expectations

Shannon Jaeckel

Part I of this Comment discusses the history of CSLI technology and the relevant federal statutes. This section explains the mechanics and content of CSLI data; additionally, it illustrates recent advances in CSLI technology and the importance of this information to law enforcement. Part II analyzes the three most recent federal circuit court decisions in this area of the law. These cases identify the analytical problems surrounding CSLI and illustrate the extent to which courts have addressed these problems. Part III examines state responses to CSLI with a particular focus on how Louisiana courts and the Louisiana legislature have approached the issue in comparison with other states. Part IV proposes that the Louisiana legislature be proactive in adopting a comprehensive CSLI statutory scheme rather than waiting for federal action. Specifically, the courts should interpret the Louisiana Constitution more expansively to provide additional privacy interest protections than currently exist under federal law, and the Louisiana legislature should codify this privacy interest and provide detailed guidelines. This solution is most apt to resolve the problems surrounding Louisiana for two reasons. First, it will vest a constitutionally protected interest. Second, it allows the Louisiana legislature, which is charged with adopting policies that benefit its citizenry, to adopt legislative rules that balance the government’s interest in conducting effective investigations with the public’s privacy interests in CSLI.

The Road to Understanding the Confrontation Clause: Ohio v. Clark Makes a U-Turn

Julien Petit

Part I of this Comment discusses the Confrontation Clause and summarizes the state of the law before Ohio v. Clark. Part II explains the holding and reasoning of the Court’s decision in Ohio v. Clark. Part III analyzes the problems that the decision caused and how these problems affect the admissibility of statements into evidence. Part IV proposes a two-part test to be applied under the Confrontation Clause, eliminating confusion and providing a clear analysis for lower courts to adopt.

By the Pricking of My Thumbs, State Restriction This Way Comes: Immunizing Vaccination Laws from Constitutional Review

Megan Joy Rials

This Comment argues that states should not allow philosophical exemptions and should either retain or create religious exemptions that meet certain requirements under the Free Exercise Clause, the Due Process Clause, and the Establishment Clause. California and Louisiana differ in their approaches to vaccination laws. As a result of the California legislature’s controversial response to the Disneyland measles outbreak by banning philosophical and religious exemptions, California is now among the few states with the strictest vaccination requirements. In contrast, Louisiana is among the states with the laxest vaccination laws, which allow for both exemptions.  Under the proposed solution, California should modify its law to allow religious exemptions, and Louisiana should ban philosophical exemptions.

Season 2, Episode 3: Are Traffic Cameras Legal? Ft. Mark Hill

Show Description

The Legal Ease is back to discuss the legality of Traffic Cameras with attorney Mark Hill. Tim Robinson discusses “Ballot Selfies” in “Street Law with Tim Robinson.” Hunter Schoen talks about a law clerk who decided she could not wait to be a judge in “C’mon Judge”. The “Bayou Barrister” returns.

Street Law with Tim Robinson
Ballot Selfies
Ballot Selfies Lawsuit

C’mon Judge!
Law Clerk wants to be a Judge
Complaint against Rhonda Crawford

Bayou Barrister
Synallagmatic — 1908
Simulation — 2025
Effects as to Third Persons — 2028

Traffic Cameras
Mayor Landrieu Announces Traffic Camera Increase
Traffic Cameras are a Municipal Moneymaking Scam — VICE
Sample Traffic Camera Ticket from Ohio

 

Volume 77 Junior Associates Announced

The Editorial Board of Volume 77 of the Louisiana Law Review is proud to announce and congratulate those students who have been accepted as Junior Associates for Volume 77. We received many excellent applications this year, and we would like to thank all of the students that applied. The following new Junior Associates have demonstrated great talent, and we look forward to working with them this upcoming year. Please join us in congratulating them on their efforts.

Colton Acosta

Matthew Boles

Randall Briggs

Hillary Brouillette

Malerie Bulot

Taylor Cooper

Alyssa Depew

Caroline Donze

Jacquelyn Duhon

Tiffany Dupree

Carson Garand

Molly Gunnels

Endya Hash

Katherine Herbert

Bryan Kidzus

Sara Kuebel

Charles Martin

Sarah Nickel

Kristin Oglesby

Michael Seibert

Savannah Walker

Benjamin Wallace

William Walsh

Derbigny Willis

McLaurine Zentner

Congratulations!

Volume 77 Editorial Board Announced

The Volume 76 Board of Editors of the Louisiana Law Review is pleased to announce and congratulate the following Junior Associates who have been selected as the Editorial Board for Volume 77 (2016-2017):

Editor in Chief: Mackenzie Schott
Managing Editor: Garrett Cook
Executive Senior Editor: Cody Miller
Articles Editors: Henry Rauschenberger and Leah Canaday

Production Editors: Katilyn Hollowell and Megan Rials
Senior Editors: Katherine Cook, Dustin Cooper, Eric Harper, Julien Petit, and TImothy Robinson
Online Editor: Wayne Zeringue

Volume 76, Issue 2

 Complete Index of Volume 76, Issue 2 


Articles

Proof Beyond a Reasonable Doubt: A Balanced Retributive Account

Alec Walen

Part I of this Article offers legal, historical, and sociological background on the use of the beyond a reasonable doubt (“BARD”) standard. Part II examines and rejects a range of non-retributive, deontological, and generally maximalist accounts of the BARD standard. Part III examines consequentialist accounts of the SOP for criminal trials, showing that these accounts quite plausibly imply that the state should use a lower standard than the BARD standard, in some cases calling for a standard so low that it becomes clear that the connection to punishment is a mere fig leaf. Finally, Part IV, drawing a lesson from the faults of consequentialism, defends the retributive account of the BARD standard.


Comparative Jury Procedures: What a Small Island Nation Teaches the United States About Jury Reform

Joshua S. Sellers

The literature on the American jury too rarely considers the experience of other countries. This Article describes how the now over 200-year debate in the United States over the proper role and form of American jury practice suffers from the usually unstated, but typically unquestioned, premise of American exceptionalism, and suggests that American jury practice could benefit from considering what other systems may have to offer.


Choosing Among Imprecise American State Parentage Laws

Jeffrey A, Parness

This Article urges the courts to develop new state choice-of-law precedents that require the occasional employment of foreign state laws for certain imprecise parentage law issues, most often pursuant to a state interest analysis. Part I reviews choice of law in initial parentage proceedings. Part II introduces the varying forms of imprecise American state parentage laws. Part III explores exemplary cases involving judicial respect for earlier parentage determinations elsewhere, while Part IV examines exemplary cases on choosing imprecise parentage laws when there were no earlier determinations. Part V demonstrates how, in choosing between imprecise parentage laws, courts should not always choose forum law and should instead choose differing state laws in differing settings, as with childcare and child support issues.


The Odd Couple: The Estate Tax and Family Law

Margaret Ryznar

Part I of this Article examines the estate tax in various societies, both in classic redistributionist societies and in the modern United States. This Part then compares the estate tax to the income tax, analyzing why societies have better tolerated the latter. Part II establishes the link between family law and estate tax law, proposing that any significant changes to the estate tax would require a reimagining of family law.


Comments

Money in the Bank and Boots on the Ground: A Law- Policy Proposal to Make the Affordable Care Act Work in Louisiana

Lucas Self

In Part I, this Comment reveals the scope of the challenge, highlighting the factors that contribute to Louisiana’s shortage of healthcare providers. Part II provides an overview of the ACA’s changes to Medicaid and the legislation’s impact on doctors and hospitals. Part III discusses Louisiana’s reaction to the ACA, focusing on how the state’s actions have decreased available funding for healthcare providers. Part IV offers solutions to the healthcare provider crisis, including a discussion about the benefits of Medicaid expansion for Louisiana and the lessons Louisiana can learn from Arkansas and other states grappling with similar doctor shortages.


Death in the City: Gorman’s Flawed Application of the Direct Action Statute to Insured Political Subdivisions

Grant Tolbird

The competing opinions in Gorman reveal the deep disagreement over the application of the Direct Action Statute within the Louisiana Supreme Court, among the lower courts, and between the state and federal courts. The majority and the dissent differed substantially on the resolution of the following three issues: (1) whether the Direct Action Statute grants a substantive right to an injured plaintiff; (2) whether the distinction between occurrence policies and claims-made-and-reported policies is relevant to the outcome of the case; and (3) whether the notice requirement in a claims- made-and-reported policy violates the public policy considerations underlying the Direct Action Statute. The prior cases that applied the Direct Action Statute are not uniform in their answers, and unfortunately Gorman’s reasoning fails to adequately settle these issues.

Because Gorman’s reasoning is insufficient, this Comment will explain how the Court should have resolved these three contentious issues by analyzing how prior courts have applied the Direct Action Statute and the public policy considerations inherent in that law. Part I of this Comment will clarify the history behind Louisiana’s Direct Action Statute and explain how the courts have historically interpreted that law. Part II will discuss the facts behind Ms. Gorman’s lawsuit, the procedural history, and the Supreme Court’s ultimate holding in Gorman. Part III will analyze the majority and dissenting opinions in Gorman and discuss what the correct outcome should have been in light of the relevant jurisprudence and public policy. Part IV will propose a legislative solution to rectify the injustice of the majority’s overly broad holding. This proposed legislation will amend the Insurance Code to prohibit insurance companies from issuing claims-made-and-reported policies to political subdivisions of the state, so that these political subdivisions cannot avoid liability by failing to report claims. As long as the injury occurs during the policy period or the injured plaintiff files a claim during the policy period, victims will be assured that coverage exists for a political subdivision’s negligent actions.


A Watery Grave for Unseaworthiness Punitive Damages: McBride v. Estis Well Service, L.L.C.

Phillip M. Smith

In McBride, the Fifth Circuit correctly concluded that unseaworthiness punitive damages should not be available to seamen for three reasons. First, the reasoning of Townsend does not extend to unseaworthiness, because no significant history of unseaworthiness punitive damages exists, and the failure to pay maintenance and cure is a fundamentally different legal claim.Second, the unavailability of punitive damages under the Jones Act—a statutory negligence action for seamen—should be extended to unseaworthiness because the two claims typically involve a single legal wrong.Third, the court in McBride properly determined that courts should not distinguish the availability of unseaworthiness punitive damages between injured seamen and wrongful-death representatives. To preserve uniformity in admiralty and protect the interests of maritime commerce, the Supreme Court should address this issue and hold that unseaworthiness punitive damages are unavailable.

Part I of this Note provides background on the powers of Congress and the federal courts to create admiralty law and explicates the specific remedies that these branches have made available to seamen. Part II explains the Fifth Circuit’s recent decision in McBride and chronicles the uncertain history of maritime punitive damages. Finally, Part III analyzes whether unseaworthiness punitive damages should be available and concludes that the Fifth Circuit reached the correct result in McBride.

Policing Charitable Organizations: Whose Responsibility Is It?

Max Kallenberger

This Comment proposes a self-funded state regulatory organization that is responsible for charitable oversight and regulation within Louisiana, replacing the current regulatory system under the attorney general’s office. No perfect model or answer exists to the problem of properly regulating the charitable sector; however, this self-funded organization would help ensure proper regulation of Louisiana’s charitable sector and place authority in a dedicated enforcement body, whose only task would consist of overseeing charities.

Part I of this Comment provides an overview of charitable organizations and director fiduciary standards. Part II explains the current model of enforcement and the problems with the system. Part III discusses various scholarly proposals for new models of enforcement. And finally, Part IV explains why a self-funded regulatory organization best ensures proper oversight of charities and their directors.