Volume 78, Issue 1

 Complete Index of Volume 78, Issue 1


Articles

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.


Enhancing “Education”: Rebalancing the Relationship Between Athletics and the University

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.


A Prelude to Jenkins v. NCAA: Amateurism, Antitrust Law, and the Role of Consumer Demand in a Proper Rule of Reason Analysis

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.


Swinging at the Facts: How Baseball Informs Legal Argument

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.



Comments

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.


Keeping “I Do” Between Two: A Post-Obergefell Analysis of Bigamous Marriage and Its Implications for Louisiana’s Matrimonial Regime

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.

 

Season III, Episode 3: Does Title VII’s Ban on Sex Discrimination Extend to Sexual Orientation Discrimination?

Show Description

     Happy Halloween from the Legal Ease. On today’s episode, Willie and Joe have Professor Bill Corbett from LSU’s Paul M. Hebert Law Center to discuss recent appellate court decisions dealing with whether Title VII’s ban on sexual discrimination extends to cases involving allegations of sexual orientation discrimination. We unpack the 7th circuit’s analysis of “sex” from Hively v. Ivy Tech Cmty. Coll. of Ind. Additionally, we have 3L Mac Zentner on the show to discuss his upcoming article on the constitutionality of Louisiana’s anti-bigamy law in light of the U.S. Supreme Court’s decision in Obergefell v. Hodges. Finally, we have 3L Terrell Jordan in the studio for his segment C’Mon Judge where we discuss haunted house case law and whether the presence of ghosts should be sufficient grounds for rescinding a sale. For this episode, we have provided some interactive show notes for listeners who want to go a little further. The show notes below correspond to the various segments.

Show Notes

The Daily Reveille Writes Feature on the Legal Ease Podcast!

Hot off the presses! The Daily Reveille’s Katie Gagliano recently interviewed the members of the Legal Ease. The Legal Ease is a podcast from the Louisiana Law Review. Some segments from the article as well as a link appear below.

Third year law students Joe Cooper and Willie Walsh set up podcast equipment at the Paul M. Hebert Law Center on Sept. 6, 2017. Photo Credit, Kim Nguyen.

LSU law students’ podcast offers fun twist on legal issues

Grab your headphones, Tigers, because your new favorite podcast may be recorded just a stone’s throw from the Parade Ground.

The Legal Ease, a podcast produced by the University’s Paul M. Hebert Law Center’s Louisiana Law Review, is entering its third season with new host Willie Walsh and co-host Joe Cooper. The show includes academic discussions about current legal issues with a fun talk-show format that makes the material accessible for lay people and busy legal practitioners.

Founded in 2015, the podcast was the brainchild of LSU Law Center graduate Alex Robertson, now an attorney with Irwin, Fritchie, Urquhart and Moore in New Orleans. Robertson was a podcast enthusiast who pitched the idea while applying to be the Law Review’s online editor, the role now occupied by Walsh.

Read the rest of the article here.

Volume 78 Junior Associates Announced!

The Editorial Board of Volume 78 of the Louisiana Law Review is proud to announce and congratulate those students who have been accepted as Junior Associates for Volume 78. 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.

Volume 78 Junior Associates

David Albano

Brooke Bahlinger

Hayden Bigby

Casey Bordelon

Catherine Briley

Christine Colwell

Jourdan Curet

Sara Daniel

Justin DiCharia

Nena Eddy

Briana Falcon

Carmen Guidry

Bradley Guin

Christopher Handy

Milton Hernandez

Danielle Kinchen

Allena McCain

William Milburn

Thomas Naquin

Anna Reed

Mary Grace Richardson

Max Roberts

David Scotton

Josie Seringe

Kyle Townsley

Law Review Members Make LSU Law History!

Congratulations to newly appointed Volume 78 Articles Editor Sarah Nickel and Volume 78 Senior Associate and newly-elected SBA President Sara Kuebel for winning the Robert Lee Tullis Moot Court Competition and helping make LSU Law history!

Sarah Nickel (right) and Sara Kuebel (left) with their Championship Cups

Winning LSU Law’s internal trial competitions brings an air of prestige and accomplishment to students. But with their victories in the Fall 2016 semester, Robert Lee Tullis Moot Court winners Sara Kuebel and Sarah Nickel and Ira S. Flory Mock Trial winners Caity Cline and Rome Gonsoulin also made history.

The victories marked the first time at LSU Law that all-female teams were victorious in the two competitions.

Teams of two males winning the Flory and Tullis trials were the norm in LSU Law’s past, and in recent school history, mixed male-female teams winners have become commonplace. This year, however, was a clean sweep for female law students.

It’s a milestone that the competitions’ winners are proud of achieving.

Kuebel and Nickel said they’re exploring the idea of doing more trial competitions during their 3L year, adding that these courtroom contests supplement their legal education at LSU.

“There’s no downside to putting yourself out there and doing it because it’s just a great learning experience,” Nickel said. “It builds up your confidence because you learn that it’s not the end of the world if you say, ‘um.’ Everything’s fine.”

And years after all four students have graduated and return to LSU Law for a class reunion, they know they have made history at the more than 110-year-old law school.

“If you look at all of the names on the moot court plaque that’s (outside the LSU Law Robinson Courtroom), it’s all men’s names,” Kuebel said. “So it’s going to be really cool to see the names of these two women, both of us memorialized at the Law Center.”

For the full article, Click Here!