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.

Volume 76, Issue 1

Complete Index of Volume 76, Issue 1 


Front Matter

The Perma Project


Articles

Tempering Society’s Looking Glass: Correcting Misconceptions About the Voting Rights Act of 1965 and Securing American Democracy

Orville Vernon Burton

This Article presents a brief history of the Voting Rights Act of 1965 with an eye toward correcting the historical misconceptions that courts have promulgated and that have led to increased challenges to voter equality. The hope is that a more nuanced and complete understanding of the fight for African-American enfranchisement will inform political and legal battles over voting rights.


The Irony of Intent: Statutory Interpretation and the Constitutionality of Section 2 of the Voting Rights Act

Joshua S. Sellers

Part I of this Article provides an overview of the Voting Rights Act, with a particular focus on Section 2, the operative provision of interest. This Part then considers City of Boerne and its progeny, cases delimiting congressional enforcement power under Section 5 of the Fourteenth Amendment, and the implications of these cases for Section 2’s constitutional viability. Part II empirically investigates lower court judges’ propensity to favor the use of a discriminatory intent standard in Section 2 cases. Part III relates the findings to the question of Section 2’s constitutionality.


Equal Sovereignty as a Right Against a Remedy

Seth Davis

This Article’s subject is federalism’s limits upon remedies. This Article aims at a new way to understand and to critique Shelby County. It argues that Shelby County created a new species of a “right against a remedy.” This newfound right against a remedy is unusual when compared to other constitutional rights that may be invoked against remedies. Unlike other rights against remedies, Shelby County’s equal sovereignty doctrine does not take seriously countervailing concerns about the adequacy of the system of remedies for vindicating constitutional rights.

Part I introduces the concept of a right against a remedy. It shows that constitutional rights against remedies are limited by the demand for an adequate system of remedies even where nonconstitutional remedies are all that’s at stake. As Part II argues, that makes Shelby County, which involved enforcement of the Fifteenth Amendment right to vote, all the more unusual for its failure to take seriously the need for adequate remedies. Part III locates equal sovereignty within the jurisprudence of constitutional remedies, arguing that it has the potential to undercut the principle that the system of constitutional remedies must be sufficient to ensure the rule of law.


Reflections on Justice Thurgood Marshall and Shelby County v. Holder

Wendy B. Scott

This Article takes the retrospective view of the Court’s earlier jurisprudence on the Voting Rights Act through the eyes of Associate Justice Thurgood Marshall to prove the predictability of the Shelby County decision. Part I of this Article explores how the Court has differed on two fundamental constitutional questions raised by civil rights statutes: the appropriate balance between state and federal authority and whether Congress or the Court has the authority to determine the constitutional necessity for the Act. These important issues are at the heart of the differing judicial perspectives on the Act. Part II details the Court’s response to the strategies employed by covered jurisdictions to resist congressional authority and push the federalism balance in favor of local control. Many of these opinions were rendered while Justice Marshall sat on the Court and illustrate the historic ambivalence towards the Act. Part III contrasts the prevailing norms on the Roberts Court of color-blind equality and post-racialism that undergird Shelby County with Justice Marshall’s approach to achieving racial equality under the Act. While Marshall would have reached a different result, the majority in Shelby County reached a conclusion consistent with earlier decisions on racial equality. The Article concludes that the choice made to declare Section 4 unconstitutional will lead to the dilution of minority voting strength absent a congressional response to the Court.


The Forgotten Provision of the Fourteenth Amendment: Section 2 and the Evolution of American Democracy

Earl M. Maltz

This article will discuss the forces that shaped Section 2 of the Fourteenth Amendment and the process by which the provision was drafted. After briefly recounting the origins of the Three-Fifths Clause of the original Constitution, the Article will situate the impetus for the adoption of Section 2 in Republican unwillingness to have the political power of white Southerners enhanced by virtue of the Thirteenth Amendment, which by its terms would have had the effect of increasing the representation of the ex-slave states in the House of Representatives without requiring those states to allow the freedmen to vote. The Article will then describe the complex political struggle that ultimately led to the adoption of the current form of Section 2. The Article will conclude with some observations about the implications of the debates over Section 2 on our understanding of the structure of the Constitution as a whole.


The Necessity of the Voting Rights Act of 1965 and the Difficulty of Overcoming Almost a Century of Voting Discrimination

Paul Finkelman

Part I discusses the Voting Rights Act of 1965 in the context of the Civil Rights Act of 1964 and demonstrates that changing the political culture and making voting meaningful was more difficult than ending de jure segregation. Part II of this Article suggests that the Civil Rights Act of 1964, although somewhat successful, was not enough to truly enfranchise African Americans. Part III illustrates why the Voting Rights Act of 1965 was needed to purge the southern states of legislation and practices created to stifle the black vote without language that was overtly discriminatory. Specifically, this Part discusses the efforts of white South Carolinians to disfranchise the state’s black population from the end of Reconstruction to the passage of the Voting Rights Act. Part IV examines the role of party primaries in South Carolina and demonstrates that these practices limited the effectiveness of the Act to ensure equal access to the polls. Finally, Part V recognizes that while the Voting Rights Act of 1965 has led to some significant changes in the South, there are still large disparities between the actual population of African Americans in the South and the actual representation in southern legislatures and in Congress.


Comments

A Court’s Guide on How to Gut Precedent by Relying on it: Halliburton II’s Puzzling Effect on Securities-Fraud Class Actions

Leah Neupert

Part I provides background on the history of securities-fraud class actions, beginning with the opinion in Basic, and explains how the meaning of price impact and materiality have changed over time. Part II discusses the opinions of Halliburton I and Amgen, focusing on the parts of the opinions that Halliburton II undermines. Part III details Chief Justice Robert’s opinion in Halliburton II. Part IV explains what this author believes is the correct interpretation of Halliburton II and concludes that applying this interpretation will effectively overrule Halliburton I and Amgen, because the concepts of price impact, loss causation, and materiality are inseparably interrelated. Part V presents three alternative interpretations of Halliburton II that could preserve Halliburton I and Amgen. It proposes that courts should either apply the correct interpretation of Halliburton II or apply the most rational alternative, which imposes a standard of clear and convincing evidence on defendants to successfully rebut the Basic presumption. Finally, Part VI concludes that although Halliburton II’s practical impact is uncertain, the inconsistencies between the opinion and Halliburton I and Amgen are clear.


Putting the House Back Together Again: The Scope of Copyright Protection for Architectural Works

Lauren Jean Bradberry

Architectural works create the backdrop to human life and are an integral piece of society’s cultural experience. As phones with camera capabilities and scanners become more sophisticated and the ease with which material can be downloaded from the internet becomes increasingly simple, however, architects face the increasingly difficult task of trying “to prevent unauthorized copying of their work.”

Part I of this Comment presents the background of the Architectural Works Copyright Protection Act (“AWCPA”) and the current judicial treatment of AWCPA claims. Part II explores the inadequacies of the congressional and judicial tests for scope of copyright protection for architectural works. Part III examines sui generis protection for other inherently functional works and the judicial treatment when determining the scope of protection in those areas. Finally, Part IV proposes a workable test that courts can use to determine the scope of copyright protection for architectural works. This test uses a modified version of the Second Circuit’s dissection test to ensure that courts do not pass over original large-scale groupings of elements and original overall form for copyright protection.


Hold the Phone! “Peer-to-Peer” Ridesharing Services, Regulation, and Liability

Mark Macmurdo

Peer-to-peer ridesharing services, such as Uber or Lyft, pose a wide spectrum of policy challenges for state and local regulators and courts, especially with regard to public safety. These ridesharing services all stress that they are technology companies—not providers of transportation services—that merely connect individuals with third-party drivers. Such a characterization is clearly an attempt to limit the companies’ liability for accidents. Therefore, determining who is ultimately liable for damages from injuries caused by the activities of ridesharing services is an important public-policy concern.

Although there are many economic benefits to the proliferation of ridesharing services, governments and courts need to arrive at an appropriate balance of traditional regulation and imposition of liability to ensure public safety in light of the services’ rapid expansion. Part I of this Comment explores traditional and existing for-hire transportation regulations and compares them with the modern approaches taken by regulators responding to the creation of ridesharing services. Part II considers many of the potential ways that courts might impose liability upon the ridesharing service providers. Part III discusses how regulation and imposition of liability can work together to minimize the risks that ridesharing services pose to public safety and welfare. As detailed below, the modern regulatory approaches will be effective in ensuring public safety as long as ridesharing services are also held liable for the acts of their drivers.


Ep. 2 Prof. A.N. Yiannopoulos: History of the Louisiana Civil Code and its Comments

Prof. Lonegrass, Alex, and Leah interview Prof. A.N. Yiannopoulos about his personal history, the history of the Paul M. Hebert Law Center, the design of the Louisiana Civil Code, and the significance of comments to the Code.

Also on the show: (1) Current Events with Lauren Brink; (2) C’mon Judge with Jacques Mestayer; and (3) Code Call with Mahogane Reed.

Show Notes