Doing the Robot: No Longer Just a Dance Move

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by Max Roberts, Senior Associate

I. Background    

            Although the term “child sex robot” sounds like it belongs in a dystopian Margaret Atwood[1] novel, the existence of child sex robots is indeed a reality. Companies in Asia, specifically Japan and China, already have a thriving industry in the manufacture and distribution of realistic child-sex dolls.[2] Buyers even have the option of ordering customized dolls based on pictures provided to the manufacturer.[3] In the United Kingdom, where the importation of child sex dolls is prohibited because a court deemed the dolls “obscene,” 128 child sex dolls were seized in 2017 alone.[4] One of the main manufacturers of child sex dolls, Japanese national Shin Takagi, has been manufacturing and shipping child sex dolls around the world for over ten years.[5]

            On December 14, 2017, Don Donovan, a United States Representative from New York, introduced the Curbing Realistic Exploitative Electronic Pedophilic Robots Act, appropriately abbreviated as the “CREEPER Act,” into the U.S. House of Representatives. The CREEPER Act is designed to ban the importation and transportation of “anatomically-correct doll[s], mannequin[s], or robot[s], with the features of, or with features that resemble those of, a minor, intended for use in sexual acts.”[6] On June 13, 2018, the House of Representatives unanimously passed the CREEPER Act, and the following day the Act was read into the Senate and referred to the Senate Judiciary Committee, where it now resides.[7]

The Senate Judiciary Committee faces a twofold question: should the government ban child sex robots, and is it constitutional to do so?

II. The Policy Determination

            Two commonly posited reasons for generally disfavoring or banning sex robots exist. First, the robots reduce human contact and provide users with an unrealistic view of human interactions. Second, the robots encourage users to participate in actions that are inappropriate and often downright illegal, thus leading to increased incidents of those behaviors with actual humans.[8]

            The first rationale may be an attempt to protect sex robot users from themselves. Using sex robots leads to a breakdown in a person’s ability to experience real intimacy and connection, primarily the ability to have stable familial relationships—the bedrock of society. The second rationale is an attempt to protect women and children from crimes of sexual violence. Committing a sexual crime against a sex robot is in a sense a gateway “crime,” the normalization of which will lead to the same crimes committed against actual people.[9] Advocates of sex doll deregulation argue, however, that sex robots will serve as therapeutic devices for lonely people, prevent the spread of STDs, and actually deter crimes of sexual violence by providing a “safe” alternative.[10]

For purposes of child sex robot legality, the crucial policy debate is whether crimes perpetrated against a sex robot make such acts perpetrated against actual persons more or less likely. Existing academic studies support both arguments, but no strong scientific evidence leans either way.[11] Fortunately, however, the House of Representatives made several Congressional findings of fact that support the position of anti-sex robot advocates—namely, that mistreatment of child sex robots would normalize and desensitize such behavior to the detriment of actual children and society as a whole.[12]

III. Constitutional Question

Congress has the power to regulate the importation and manufacture of certain goods under the Foreign Commerce Clause and the Interstate Commerce Clause respectively. Congress’s commerce clause powers do not, however, allow it to violate personal protections enshrined elsewhere in the Constitution. The constitutional issue the CREEPER Act raises, some commentators argue, is that it violates the First Amendment protection of free speech.[13] The main support for this proposition comes from the U.S. Supreme Court’s decision in Ashcroft v. Free Speech Coalition.[14]

In Ashcroft, the Supreme Court struck down a statute banning “virtual child pornography.”[15] The statute in question was an amendment to 18 U.S.C. § 2256, called the Child Pornography Prevention Act (“CPPA”). The CPPA prohibited “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture” that “is, or appears to be, of a minor engaging in sexually explicit conduct.[16] The Supreme Court treated the CPPA as a restriction on speech—a conclusion that could hardly be avoided considering the CPPA contained a specific clause prohibiting Hollywood movies from containing depictions of sexual intercourse that a jury “reasonably believed could be a minor.”[17] Such a provision—regulating what may appear in a Hollywood movie in the 21st century—is a clear restriction on speech.[18]

Once the Court recognized the CPPA as a restriction on speech, it acknowledged only two valid free speech exceptions it could use to uphold the CPPA.[19] The Court would either have had to find all activities the CPPA covered to be obscene under the Miller test,[20] or find that all the activities the CPPA covered exploited real children in the course of doing the activity.[21] Any other finding would have meant the statute was “overbroad” because it prohibited constitutionally protected free speech activities.[22] Ultimately, the Court determined that neither free speech exception justified the CPPA.[23]First, not all activities or situations the CPPA covered are obscene; for example, a Renaissance-era painting of a mythological event would fall under the CPPA via a clear reading of the statute, but clearly is not obscene.[24] Second, as long as producers do not use actual minors to create the image then there is no exploitation of children. Thus, the statute was struck down as a First Amendment violation.[25]

Applying the Ashworth logic to the CREEPER Act in a superficial manner would lead to the same conclusion. No actual children are exploited in the production of the dolls,[26] and the language of the statute contains no carve outs for dolls that are used for artistic or literary purposes.[27] It would therefore seem that the CREEPER Act is unconstitutional.[28] An analysis like the one above, however, is asking the wrong question. The question is not whether the CREEPER Act may be upheld as a restriction on free speech; rather, the question is whether the shipment of child sex dolls is speech—it is not.

Although courts have interpreted the term “speech” very broadly, it does not include every possible act a person may undertake. For conduct—like buying and selling child sex dolls—to receive free speech protections, it must contain some form of expressive activity.[29] The CREEPER Act does not prohibit any expressive activity.[30] This intricacy is the chief factual distinction between the CREEPER Act and the CPPA. The CPPA expressly purported to ban “depictions” of underage sexual activity in media such as film, video, photograph, or picture.[31] These are quintessential forms of speech, and as such, the Supreme Court had no choice but to engage in a very strict free speech analysis in Ashcroft. Courts will approach any Congressional act attempting to so brazenly restrict traditionally artistic media with a measure of suspicion. Although the Supreme Court has shown a willingness in recent years to expand the definition of what constitutes speech, in Buckley v. Valeo[32] and Doe v. Reed[33], that expansion is focused on protecting activities implicating the legitimacy and participation in the political process. Such an implication cannot be found here.

Two additional appellate decisions support the constitutionality of the CREEPER Act. The first is the decision of the U.S. Court of Appeals for the Eleventh Circuit in South Florida Free Beaches v. Miami. In South Florida Free Beaches, the Eleventh Circuit upheld a ban on nudity in the face of the plaintiffs’ challenge that the ban abridged their First Amendment right to “communicate their philosophy that the human body is wholesome.”[34] The court disagreed that the ban raised First Amendment issues, saying that a restriction on conduct had to be attached to some sort of clear expressive activity, such as dance or theater.[35] The mere act of walking around in the nude did not constitute expression.[36] Similarly, the mere act of buying, selling, or manufacturing a child sex doll does not constitute expression.

The CREEPER Act may also be analogized to widely accepted legislative restrictions on the buying, selling, or manufacturing of illicit substances.[37] The restriction on illicit substances goes even further, however, often prohibiting their possession and use.[38] Nonetheless, the analogy is apt when considering the relationship between the CREEPER Act and the CPPA. Just as the Court struck down CPPA restrictions on depictions of underage sexual conduct, so have courts struck down restrictions on depictions of drug use.[39] The act of buying and selling the illicit substance itself, however, would never be confused with speech. Likewise, the buying and selling of child sex dolls would never never be confused with speech.

IV. Conclusion

The Senate should pass the CREEPER Act. In addition to the unfavorable optics of child sex robots, experts believe that use of child sex robots could normalize the sexual mistreatment of children. The House of Representatives unanimously agrees. The Constitution protects art and symbolic, meaningful expression—not commercial sex dolls. The Senate should thus uphold the Constitution and pass the CREEPER Act.

[1] See Margaret Atwood, The Handmaid’s Tale (1985).

[2] Marie-Helen Maras & Lauren R. Shapiro, ‘Shadow’ Trade in Child Sex Dolls Should be Banned, Say Profs, Crime Rep. (Jan. 24, 2018), https://thecrimereport.org/2018/01/24/the-growing-danger-of-child-sex-dolls/ [https://perma.cc/FU7F-LVQ4].

[3] Id.

[4] Id.

[5] Roc Morin, Can Child Dolls Keep Pedophiles from Offending?, Atlantic (Jan. 11, 2016), https://www.theatlantic.com/health/archive/2016/01/can-child-dolls-keep-pedophiles-from-offending/423324/ [https://perma.cc/MVF6-THFE].

[6] CREEPER Act of 2017, H.R. 4655, 115th Cong. (2017).

[7] Id.

[8] Chantal Cox-George & Susan Bewley, I, Sex Robot: The Health Implications of the Sex Robot Industry, 44 BMJ Sexual & Reprod. Health 161, 161–64 (2018).

[9] Id. See also Maras & Shapiro, supra note 2.

[10] Bruce Y. Lee, In Case You Are Wondering, Sex With Robots May Not Be Healthy, Forbes (June 5, 2018, 4:08 AM), https://www.forbes.com/sites/brucelee/2018/06/05/in-case-you-are-wondering-sex-with-robots-may-not-be-healthy/#6097cd7f1f6b [https://perma.cc/7NUX-C73H].

[11] Id.

[12] CREEPER Act of 2017, H.R. 4655, 115th Cong. § 2 (2017).

[13] Eric Goldman, The “CREEPER Act” Would Be Yet Another Unconstitutional Law from Congress (Guest Blog Post), Tech. & Marketing L. Blog, https://blog.ericgoldman.org/archives/2018/06/the-creeper-act-would-be-yet-another-unconstitutional-law-from-congress-guest-blog-post.htm [https://perma.cc/9EGQ-69ET].

[14] Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Under the Miller test, named for Miller v. California, 413 U.S. 15 (1973), the government must prove that the “work, taken as a whole, appeals to the prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political, or scientific value.” Id. at 25 (citations omitted).

[21] New York v. Ferber, 458 U.S. 747 (1982).

[22] Ashcroft, 535 U.S. at 239.

[23] Id. at 245.

[24] Of course, not everyone shares this view of Renaissance-style art. See Parks and Recreation episode Jerry’s Painting, and the comedic reaction of conservative local leader Marcia Langman to a Renaissance-style painting containing nudity. See Parks and Recreation (NBC television broadcast Apr. 28, 2017) (season 3, ep. 11) (comedic reaction of conservative local leader Marcia Langman to a Renaissance-style painting containing nudity).

[25] Ashcroft, 535 U.S. at 245.

[26] The potential child labor used to create the dolls in Asia is an issue for another blog post.

[27] Goldman, supra note 13.

[28] Id.

[29] Texas v. Johnson, 491 U.S. 397 (1989).

[30] Id. The Supreme Court in Johnson focused on the need for an act to have political, religious, or other ideological significance for the Court to classify the act as expressive speech.

[31] Ashcroft v. Free Speech Coalition, 535 U.S. 234, 257 (2002).

[32] See Buckley v. Valeo, 424 U.S. 1 (1976) (holding that campaign contributions were speech).

[33] See Doe v. Reed, 561 U.S. 186 (2010) (holding that signing a state referendum petition was free speech).

[34] S. Fla. Free Beaches v. City of Miami, Fla., 548 F. Supp. 53 (S.D. Fla. 1982).

[35] Id.

[36] Id.

[37] 21 U.S.C. § 802 (2012).

[38] Id.

[39] See Guiles v. Marineau, 461 F.3d 320 (2d. Cir. 2006) (holding that a t-shirt depicting George W. Bush as a chicken ingesting cocaine was protected speech).

Objective, Your Honor: How McCoy Misses the Mark

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by David Albano, Senior Associate

I. Background

Larry English’s situation was unenviable, to say the least. His client, Robert McCoy, was charged with first-degree murder of his mother-in-law, stepfather, and son in Bossier City.[1] McCoy was facing the death penalty, and all of the evidence was against him:[2] (1) McCoy had already previously threatened to murder his wife;[3] (2) his wife’s mother was heard yelling “Robert, she ain’t here!” before a gunshot rang out on a 911 call the night of her murder;[4] (3) McCoy’s car was seen leaving the scene of the crime driven by a man matching McCoy’s description;[5] (4) McCoy was found with what was determined to be the murder weapon by a ballistics expert;[6] (5) McCoy’s brother and two of McCoy’s friends gave statements to the police that McCoy was in Bossier City and that McCoy had told them he had shot someone that night;[7] and (6) another brother admitted to helping McCoy flee Bossier City that night.[8]

Unfortunately, English’s position was made even more problematic when McCoy demanded that English offer an alibi that was not only “difficult to fathom,” but “incredible.”[9] McCoy, who maintained he was in Texas at the time,[10] claimed the murders were the result of a multi-state conspiracy involving police,[11] medical personnel,[12] lawyers,[13] and United States Senators.[14]

In the face of insurmountable evidence, and without any way to back up McCoy’s alibi, English devised a strategy to defeat the death penalty: he would admit the obvious, but require the prosecution to prove McCoy had the proper mental state.[15] Even if found guilty of first-degree murder, English would use the fragile mental state of McCoy, a man who English believed to be “insane,”[16] in beseeching the jury to spare McCoy’s life and instead sentence him to life in prison.[17] The problem, however, was that despite English “reasonably assess[ing] a concession of guilt as best suited to avoid the death penalty,” McCoy insisted on offering a farfetched alibi that would make a “death sentence . . . impossible to avoid.”[18]

In an effort to save his client’s life, English used his own trial strategy rather than McCoy’s.[19] When he was found guilty of first degree murder and sentenced to death, McCoy appealed his conviction and sentencing.[20]

Ultimately, the following question came before the United States Supreme Court: “Is it unconstitutional for defense counsel to concede an accused’s guilt over the accused’s express objection?”[21] Louisiana argued English’s behavior should be analyzed under the ineffective assistance of counsel standard found in Strickland v. Washington, which requires a two-step analysis: (1) whether the lawyer’s conduct was unreasonable; and (2) whether this conduct prejudiced the client’s case.[22] Rather than using the Strickland standard, however, the Court found that the right to choose the “objective” of a case is solely the client’s decision and overriding this decision is a per se violation of the Sixth Amendment—a violation which warrants a new trial.

McCoy v. Louisiana, however, offers little guidance on how this rule should be applied, raising both legal and ethical concerns.

II. The Supreme Court Decision

In McCoy v. Louisiana, the Supreme Court determined that it is contrary to the rights granted by the Sixth Amendment for defense counsel to concede guilt when the defendant expressly objects; the holding is muddy, however, in light of the fact that English did not concede guilt to first-degree murder but only to the actus reus element.[23] While English’s strategy to use McCoy’s mental state as a mitigating factor in the sentencing phase would be impermissible if English had conceded guilt to first-degree murder, the holding as written does not address the fact that English’s strategy included contesting the “specific intent” element of the crime. Rather, the holding seems to center on what the Court repeatedly regards as acting against the express wishes of a defendant concerning the “objective” of his case.[24] Specifically, defense counsel may not override a client’s decision concerning his objective and “[f]or McCoy, that objective was to maintain ‘I did not kill the members of my family.’”[25] By contradicting this objective, English infringed upon McCoy’s Sixth Amendment right to counsel.[26]

III. McCoy Misses the Mark

A. Objective

One problem with constitutionally protecting the right to decide a case’s objective is that this right is amorphous. At least in the realm of substantive due process, newly defined constitutional rights should be carefully explained, and this caution should act as the guiding principle any time the Supreme Court finds a new constitutionally protected right.[27] If the right to decide one’s objective is a constitutional one, it should be clear what “objective” entails.

It is not difficult to see where the nebulous nature of an “objective” could lead to complications. If a client tells a lawyer he “does not want” the lawyer to employ a certain strategy, is he making a statement equivalent to “do not employ this strategy”? If a client tells a lawyer not to employ a certain strategy, but is not insistent, is the comment reflective of the client’s objective, or merely a suggestion? Similarly, in Sixth Amendment-Assistance of Counsel-Capital Punishment-McCoy v. Louisiana, the Harvard Law Review notes the problem of proving what a client considers to be his objective, asking “How much objection is necessary to trigger McCoy . . . ?”[28] A criminal court in Texas found that a defendant who did not make an express demand to maintain innocence until after his lawyer admitted guilt in his opening statement had sufficiently invoked his rights under McCoy and was granted a new trial; although the court stated that it appeared counsel knew that admitting guilt was against the client’s wishes, it was not clear that he had made such an insistent declaration of an objective to maintain innocence.[29] This case demonstrates the lack of clarity in determining how a defendant invokes McCoy. The Court’s standard in McCoy also fails to define the parameters of what can be considered an “objective.”

A federal court in New York, in attempting to decipher the term “objective,” explicitly rejected any definition outside of “the defendant’s decision to maintain innocence or concede guilt.”[30] It is not clear, however, that McCoy is limited in that way. In United States v. Rosemond, a lawyer conceded that his client directed others to shoot the victim, over the objections of his client.[31] The district court found that because such a concession—though it may implicate Rosemond in a state crime—would not implicate Rosemond in any of the charged crimes, the concession did not run afoul of the Sixth Amendment.[32] But what if the client’s objective had been to “avoid, above all else, the opprobrium that comes with admitting” such a heinous action?[33] Avoiding ignominy appears to be an objective that the Court in McCoy recognizes, yet the court in Rosemond found there was no violation in admitting the defendant directed the shooting despite the defendant’s express objections.[34] This is just one example of how McCoy’s holding proves unworkable.

B. Ethical Implications

The Louisiana Rules of Professional Conduct contemplate that an attorney should abide by his client’s decision regarding the “objectives of representation.”[35] These Rules do not, however, offer a great deal of guidance concerning clients with diminished capacity, simply instructing a lawyer to maintain as normal an attorney–client relationship “as reasonably possible.”[36] English continued to maintain the belief that McCoy was “insane,” seemingly making his case one subject to special considerations under the Rules of Professional Conduct.[37] On its face, however, the holding in McCoy would seem to dictate that the accused’s Sixth Amendment rights are violated any time an attorney overrides the accused’s wishes concerning the objective, even when the client has limited ability to reason. The Rules of Professional Conduct discuss the situation where a lawyer may override the wishes of a client with diminished capacity regarding disclosure of confidential information when it is done to protect the client.[38] This is an example of how a lawyer’s ethical duties may vary when dealing with a client with diminished capacity so that a normal attorney–client relationship is not possible. To be sure, not every situation involving diminished capacity and the death penalty should necessarily grant a lawyer the ability to override his client’s autonomy.[39] But the Court’s declaration of this unconditional right fails to recognize situations where bizarre circumstances, such as those involving questionable capacity combined with an indefensible alibi and a capital offense, may make the normal attorney-client relationship impossible and extremely fragile. Ultimately, granting a broad right to decide the “objective” of a case without considering the unique factors in any given case may challenge the general principle that the Sixth Amendment should not be construed to be in tension with a lawyer’s ethical obligations.[40]

IV. Conclusion

McCoy v. Louisiana is a problematic opinion because it tenders a broad rule that offers little assistance as to the meaning of its holding and its application. The Supreme Court should define the particular goals a client may maintain that fit into the class of constitutionally protected rights, and the Court should address the mechanism by which a client’s express opinions become his express objectives. Furthermore, the Court should clarify whether this right is an unlimited one or, if in situations involving extraordinary circumstances, it may vary in a way that is consistent with a lawyer’s ethical obligations.

[1] McCoy v. Louisiana, 138 S. Ct. 1500, 1505–06 (2018).

[2] Id. at 1506.

[3] Id. at 1513 (Alito, J., dissenting).

[4] Id.

[5] Id.

[6] Brief for Respondent at 4–5, McCoy, 138 S. Ct. 1500 (No. 16-8255).

[7] Id. at 5.

[8] Id.

[9] McCoy, 138 S. Ct. at 1507; id. at 1513 (Alito, J., dissenting).

[10] Corrected Brief for Petitioner at 14, McCoy, 138 S. Ct. 1500 (No. 16-8255).

[11] Brief for Respondent, supra note 6, at 6.

[12] Id.

[13] Id.

[14] Id. at 7.

[15] McCoy, 138 S. Ct. at 1512 (Alito, J., dissenting).

[16] Brief for Respondent, supra note 6, at 13.

[17] McCoy, 138 S. Ct. at 1506. Concessions to the jury serve to build credibility and are recognized as a legal strategy. Darden v. United States, 708 F.3d 1225, 1230 (11th Cir. 2013).

[18] McCoy, 138 S. Ct. at 1503, 1506.

[19] Id. at 1506.

[20] Id. at 1507.

[21] Petition for a Writ of Certiorari, McCoy, 138 S. Ct. 1500 (No. 16-8255).

[22] Brief for Respondent, supra note 6, at 46; Strickland v. Washington, 466 U.S. 668, 687 (1984).

[23] McCoy, 138 S. Ct. at 1505; id. at 1512 (Alito, J., dissenting).

[24] Id. at 1505, 1508, 1510, 1512 (majority opinion).

[25] Id. at 1510.

[26] Id. at 1512.

[27] See Reno v. Flores, 507 U.S. 292, 302 (1993).

[28] Sixth Amendment–Assistance of Counsel–Capital Punishment–McCoy v. Louisiana, 132 Harv. L. Rev. 377, 383 (2018).

[29] Turner v. State, No. AP-76,580, 2018 WL 5932241, at *21 (Tex. Crim. App. 2018).

[30] United States v. Rosemond, 322 F. Supp. 3d 482, 486 (S.D.N.Y. 2018).

[31] Id.

[32] Id.

[33] McCoy v. Louisiana, 138 S. Ct. 1500, 1508 (2018).

[34] Id.

[35] Louisiana Rules of Prof’l Conduct r. 1.2(a) (2018).

[36] Id. at r. 1.14.

[37] Brief for Respondent, supra note 6, at 13.

[38] See Louisiana Rules of Prof’l Conduct r. 1.14 cmt. 8.

[39] W. Bradley Wendel, Autonomy Isn’t Everything: Some Cautionary Notes on McCoy v. Louisiana, 9 St. Mary’s J. Legal Mal. & Ethics 92, 127 (2018). Wendel’s proposition seems to be that “[o]nly in cases like McCoy, where the [incapacitated] client’s interest is in avoiding the death penalty, will lawyers be permitted to override” the client’s decisions. Id. This Blog Post does not necessarily take such a rigid stance. Rather, this Post suggests that factors—including, but not limited to, a capital charge—may exist in situations with a mentally diminished client that make the attorney–client relationship impossible, and that defining the right to determine a case’s objective as unconditional prohibits a lawyer from taking into account unique circumstances.

[40] United States v. Cronic, 466 U.S. 648, 657 n.19 (1984); Sixth Amendment, supra note 28, at 386 (contemplating situations where attorneys face a mentally incompetent defendant who wishes to assert his constitutional right to decide his objective). In that publication, the author’s solution was for the Supreme Court to issue dicta “call[ing] for state courts to ensure that their competency standards adequately screen out those who lack the capacity to decide the objective of their defense.” Id. As this would not be binding law, the Court should instead clarify whether unique situations involving diminished capacity may ever arise that create an abnormal attorney-client relationship in which a lawyer may have the ability to override his client’s wishes, or if legal competency is the only threshold that must be met for an otherwise unlimited constitutional right.

“Mammas Don’t Let Your Babies Grow Up to Be Loggers”: Child Labor Law Violations and Workers’ Compensation Tort Immunity

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by Bradley Guin, Managing Editor

Introduction

Fifteen-year-old Mark Reese Franklin did not know that May 13, 1975 would be his last day alive.[1] Instead, he was preoccupied with filling his older brother’s shoes. On that day, an employee of H & H Pulpwood, Donald Holm, stopped at the Franklin household to recruit Mark’s older brother to accompany him in the woods and assist him in hauling pulpwood.[2] But the older brother was unavailable, and Donald accepted Mark in his brother’s place.[3] Donald and Mark embarked into the woods and began the arduous job of cutting and loading wood.[4] They were assisted by a “Pack-a-Back,” a machine-powered vehicle used to carry pulpwood from the forest to the road where the loading truck was located.[5] As Donald was driving the Pack-a-Back, the machine collided with an electric line.[6] He stopped the machine and turned to warn Mark of the danger of boarding the Pack-a-Back,[7] but it was too late. Mark did not hear the warning, attempted to get on the machine, and was immediately electrocuted and killed.[8]

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The Fifth Circuit’s Need to Clarify its Test Set Forth in In re Larry Doiron, Inc.—After All, the Southern District of Texas Already Has

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by David Scotton, Senior Associate

I. Introduction

A contract’s classification as “maritime” has significant ramifications for parties to a contract. For instance, in In re Larry Doiron, Inc. (“Doiron”), general maritime law (“GML”) governed, which allowed the court to uphold the contract’s indemnity provision.[1] Alternatively, if Louisiana law governed, the indemnity agreement would have been “null and void and against public policy.”[2] Because a contract’s classification as “maritime” can have significant repercussions for parties to a contract, and because parties want predictability in contracts, a judicial mechanism to simplify contract classification is preferable. On January 8, 2018, the U.S. Fifth Circuit Court of Appeals issued an en banc decision designed to simplify maritime contract classification.[3] Post-Doiron, a contract is maritime if it accomplishes two things: (1) it provides services to facilitate the drilling or production of oil and gas on navigable waters; and (2) it provides or the parties also expect that a vessel will play a “substantial” role in the completion of the contract, or the parties so expect.[4] Although designed to simplify maritime contract classification, the opinion’s language conflates all maritime contracts with those involving oil and gas.[5] Post-Doiron, parties to contracts involving vessels and oil and gas can likely expect maritime classification, but those within the Fifth Circuit’s jurisdiction whose contracts may traditionally be “maritime,” but which do not involve oil and gas, are faced with uncertainty as to whether GML or Louisiana law will govern their contracts.

II. Background of the Case

In Doiron, Apache Corporation (“Apache”) entered into a master service contract (“MSC”) with Specialty Rental Tools & Supply (“STS”) to work on Apache’s offshore platform.[6] Apache later placed a work order for STS to remove obstructions from a well.[7] The MSC contained an indemnity provision in favor of Apache and its contractors.[8] The work order did not require a vessel, nor did the parties expect a vessel would be required.[9] After an unsuccessful attempt to perform the work order, however, STS employees discovered they needed a vessel—a crane barge—to perform the work; Apache then contracted with plaintiff Doiron to provide the vessel.[10] STS employees remained unsuccessful and said they needed more equipment; when rigging down, Larry Doiron Incorporated’s (“LDI”) crane operator struck an STS employee.[11] LDI, as a contractor of Apache, filed suit against STS, arguing the contract was maritime and thus the indemnity provision was enforceable.[12]

III. How Should Courts Apply this New Test?

The Fifth Circuit said the new test set forth in Doiron was for maritime contract classification, which is broader than just the oil and gas context, but the opinion’s text qualified the adoption of this test to “this context”: a contract involving the exploration, drilling, and production of oil and gas.[13] The Fifth Circuit also broadly discussed contract classification, which suggests application should, or at least may, extend beyond oil and gas contracts. For instance, the court purports to replace the six-factor test set forth in Davis & Sons Inc. v. Gulf Oil Corp., but Davis & Sons involved a contract covering “onshore and offshore facilities.”[14] The court further said that the Davis & Sons test—the test it claimed to replace—determined whether a contract was maritime; it did not say that the Davis & Sons test determined whether an oil and gas contract was maritime. This statement means the court in Doiron claimed to replace the test designed for maritime contract classification with a two-pronged test regarding oil and gas-specific contracts. Furthermore, the court in Doiron left open the possibility for this test to apply outside the oil and gas field: “If an activity in a non-oil and gas sector involves maritime commerce and work from a vessel, we would expect that this test would be helpful in determining whether a contact is maritime.”[15]

The Fifth Circuit reaffirmed this new approach in In re Crescent Energy Services, the only Fifth Circuit ruling to date regarding this issue of maritime contract classification. In Crescent Energy, the Fifth Circuit stated, “[A]n affirmative answer to both questions [factors set forth in Doiron] is necessary before the label ‘maritime’ may be applied to the contract.”[16] The contract, however, involved plugging and abandoning three offshore wells.[17] The court also stated, “Finally, regardless of what other Fifth Circuit case law there may be, nothing in such case law detracts from the clarity of our 2018 en banc decision in Doiron.”[18] This case likewise involved oil and gas, leaving future parties to contracts involving vessels—but not involving oil and gas—unsure of whether their contracts will be “maritime” post-Doiron. To further confuse the issue, the Eastern District of Louisiana in Mays v. C-Dive L.L.C. acknowledged Doiron and Crescent Energy and said that the Doiron test “requires the court to consider just two questions [the two factors set forth in Doiron] in determining whether a contract is maritime.”[19] Notably, the court did not say that courts should use Doiron only to determine whether oil and gasrelated contracts are maritime.[20]

Clarity to this test began in Texas. In Lightering L.L.C. v. Teichman Group, L.L.C., the Southern District of Texas addressed whether Doiron applied outside of the oil and gas context.[21] In Lightering, OSG Lightering, L.L.C. (“OSG”) sought a declaratory judgment that the MSA did not govern its relationship with T&T Offshore, Incorporated (“T&T”) because the MSA had expired before the accident, and therefore, it did not have a duty to indemnify T&T for its employee’s negligence.[22] T&T cited Doiron and argued that the Agreement was fundamentally not a maritime contract and that the court therefore lacked subject matter jurisdiction.[23] T&T also relied on Norfolk Southern Railway Co. v. Kirby to argue that the court must look at the principal objective of the contract.[24] OSG argued that the agreement was fundamentally a maritime contract and that Doiron’s two-step test was inapplicable because Doiron was limited to maritime contracts involving oil and gas exploration, drilling, and production.[25] Rather, OSG argued its contract was maritime because the proper test came from Kirby, which “require[d] a holistic evaluation of the nature and character of the Agreement, looking at whether its principal objective is maritime commerce.”[26] T&T, on the other hand, argued that Doiron applied because the Fifth Circuit stated that the Doiron test “would be helpful” in other, non-oil and -gas contexts and because it drew support for its holding from other circuits’ considerations of non-oil and -gas contracts in light of Kirby, explaining that those decisions were “not inconsistent” with the Fifth Circuit’s test.[27]

Ultimately, the court held in Lightering that the contract was non-maritime after attempting to reconcile Doiron’s uncertainty with the rationale behind Kirby: the case upon which the Doiron court heavily relied.

Although Doiron limited its holding to the facts of the case, which came from the oil-and-gas sector, the court expressly noted, en banc, that it would expect the same test to apply in a non-oil-and-gas context. Outside the oil and gas context, the test first requires the court to ask whether the activity ‘involves maritime commerce and work from a vessel.’ If so, then the court asks whether a vessel plays a substantial role in completing the contract . . . if . . . satisfied, then the contract’s principal objective is maritime commerce and the contract is maritime in nature.[28]

The court in Doiron did not expressly say it would “expect the same test to apply in a non-oil-and-gas context.” Rather, it said it would “expect that this test would be helpful” in such a situation.[29] Despite that textual distinction between what Doiron said and what Lightering asserted that Doiron said, the Southern District of Texas still took a necessary step in clarifying application of the two-pronged Doiron test.

IV. Conclusion

To help parties predict whether GML or state law will govern contracts that do not involve oil and gas but do involve at least a vessel, the Fifth Circuit should clarify its two-step test set forth in Doiron. By creating a test with an express purpose to “simplify maritime contract classification” and using language limiting it to oil and gas maritime activities, but expecting it to be “helpful” in determining non-oil and -gas activities, the Fifth Circuit made maritime contract classification more confusing. Because of this confusion, the Southern District of Texas applied Doiron to a non-oil and -gas contract, and reverted back to the traditional maritime classification scheme in place of the first oil- and gas-related factor. That approach seems sensible but defeats Doiron’s purpose of creating a new test. To elucidate its own test designed to clarify contract classification, the Fifth Circuit should expressly state that Doiron applies only to maritime contracts involving oil and gas or textually support Lightering’s approach to handling non-oil and -gas contracts in lieu of Doiron.

[1] In re Larry Doiron, Inc., 879 F.3d 568, 571 (5th Cir. 2018).

[2] Id. See also La. Rev. Stat. § 9:2780 (referred to as the “Louisiana Oilfield Indemnity Act”).

[3] Doiron, 879 F.3d at 568.

[4] Id. See also Jean F. Rydstrom, Comment note.—admiralty jurisdiction in matters of contract, 29 A.L.R. Fed. 325 (originally published in 1976).

[5] See generally Doiron, 879 F.3d 568.

[6] Id. at 568.

[7] Id.

[8] Id. at 569.

[9] Id. at 570.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313, 316 (5th Cir. 1990).The six factors originally set forth in Davis & Sons involved analyzing: (1) what the specific work order in effect at the time of injury provided; (2) the work actually done by the crew assigned under the work order; (3) whether the crew was assigned to work aboard a vessel in navigable waters; (4) the extent that the work being done related to the mission of that vessel; (5) the principal work of the injured worker; and (6) what work the injured worker was actually doing at the time of injury. Id.

[15] Doiron, 879 F.3d 577, n.52.

[16] In re Crescent Energy Servs., L.L.C. for Exoneration from or Limitation of Liab., 896 F.3d 350, 355 (5th Cir. 2018).

[17] Id. at 352.

[18] Id. at 359.

[19] Mays v. C-Dive LLC, No. 16-13139, 2018 WL 3642005, at *2 (E.D. La. Aug. 1, 2018).

[20] Like in Crescent, the contract the court deemed maritime in Mays had a principal obligation to plug and abandon an underwater pipeline used to transport natural gas. Id. at *3.

[21] Lightering LLC v. Teichman Grp., LLC, CV H-17-3374, 2018 WL 3428561, at *1 (S.D. Tex. July 16, 2018).

[22] Id. at *1, *3.

[23] Id. at *3, *8.

[24] Id. at *8 (citing Norfolk S. Railway Co. v. Kirby, 543 U.S. 14 (2004)).

[25] Id.

[26] Id.

[27] Id. at *10.

[28] Id. at 577 n.5, internal citations omitted.

[29] In re Larry Doiron, Inc., 879 F.3d 568, 577 (5th Cir. 2018).

Forcing the Issue: It’s Time for the Legislature to Clarify What art. 1493(E) Legitime-tely Means

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by Bill Milburn, Senior Associate

I. Introduction

John Doe has twins, Jane and John Jr. John is an oil tycoon who always fancied himself as a sort of renaissance man. In order to emboss his name in history, he draws up a testament leaving everything he owns to his state’s flagship university. Jane and John Jr. are deeply hurt and quickly challenge the testament under the laws of forced heirship. Jane and John Jr. are both 30 years old and afflicted with mental illnesses. Jane currently works as a file clerk for a local law firm, but she struggles to keep a job because of her bi-polar disorder, which she likely inherited from her father, that renders her bedridden once every 6–12 months. John Jr. is a war veteran who suffers from Post-Traumatic Stress Disorder (“PTSD”). Similar to Jane, he struggles to sustain employment due to bouts of permanent incapacitation relating to his PTSD. Jane and John Jr. have the same fundamental problem: their mental illnesses prevent them from effectively taking care of themselves and administering their estates.[1] A layperson applying common sense may very well believe that no matter what the law of forced heirship is, it likely treats both Jane and John Jr. the same—either they are both forced heirs, or neither is a forced heir. Sadly, this is not the case. In the eyes of the law, only Jane is a forced heir. Why? Not because she needs the assistance more than her brother, but merely because her mental illness is inherited.[2]

A. Constitutional Provision Providing for Forced Heirship

First and foremost, forced heirship is a constitutional right[3] enshrined in article XII, § 5. In pertinent part, it reads:

The legislature shall provide for the classification of descendants, of the first degree, twenty-three years of age or younger as forced heirs. The legislature may also classify as forced heirs descendants of any age who, because of mental incapacity or physical infirmity, are incapable of taking care of their persons or administering their estates. The amount of the forced portion reserved to heirs and the grounds for disinherison shall also be provided by law.[4]

B. Forced Heirship in the Civil Code

Elaborating on the Louisiana Constitution, Louisiana Civil Code article 1493(A) provides that forced heirs include descendants of the first degree who (1) are under 24 years old or (2) “because of mental incapacity or physical infirmity, are permanently incapable of taking care of their persons or administering their estates at the time of the death of decedent.”[5] In order to protect those descendants who, at the time of the death of the decedent, have an incurable disease that will in the future, but has not yet rendered them “permanently disabled,” the legislature added subpart (E) to article 1493 in 2003:[6]

For the purposes of this Article “permanently incapable of taking care of their persons or administering their estates at the time of the death of the decedent” shall include descendants who, at the time of the death of the decedent, have, according to medical documentation, an inherited, incurable disease or condition that may render them incapable of caring for their persons or administering their estates in the future.[7]

Subpart (E) grants a legitime[8] to a descendant who has, for instance, ALS or muscular dystrophy but has not yet been incapacitated, thereby expanding forced heirship rights.[9] Yet scholars and judges, even those who support forced heirship generally, have found subpart (E) substantively and structurally lacking.[10]

II. Addressing Questions of Constitutionality, Determinability, and Public Policy

The problems with article 1493(E) discussed here are threefold: first, is subpart (E) constitutional; second, assuming constitutionality, is the language of subpart (E) determinable and capable of consistent application; and third, is the policy underlying forced heirship aided by subpart (E).

A. The Constitutional Question

In 2014, the Louisiana State Law Institute recommended that article 1493(E) be repealed as unconstitutional.[11] Professor Max Nathan, the reporter for the law of successions, argued that the forward looking language of article 1493(E) did not comport with the constitutional requirement that the incapacity of the descendant be present at the time of the death of the decedent.[12] The unconstitutionality, however, is not so patently obvious, as none of the appellate courts that have applied 1493(E) raised the constitutional question, notwithstanding the fact that appellate courts may notice constitutional problems on their own.[13]

B. Determinability of Article 1493(E)

Though early critics of article 1493(E) claimed “incurable” and “inheritable” were indeterminate terms, courts have not had trouble applying them.[14] Judges and practitioners have found “may” to be a troublesomely indeterminate term.[15] For instance, alcoholism is an inheritable and incurable disease.[16] If a descendant’s father and grandfather battled alcoholism, then he could argue that alcoholism may render him incapable in the future.[17] Even admitting that common usage of “may” indicates something more than 1/100 or 1/1000 chance does not make it a workable standard.[18] How much more than 1/100 chance does “may” require? 1/50? 1/25? 1/10? In the case of the descendant with alcoholic ascendants, what if the descendent received a DUI five years ago, ten years ago, or twenty years ago? When does a person cross the threshold of “may”? It depends on who is answering the question.[19] The legislature should solve this problem by replacing the “may render” standard with either a clear and convincing standard[20] or a more probable than not standard.[21] While either would increase the determinability of article 1493(E) and the predictability of its application, thus furthering the public policy of “warding off intra-family litigation,”[22] the lesser threshold is preferable because it better protects additional public policy goals.[23]

C. Article 1493(E) and Public Policy

Forced heirship should further the state’s interest in “warding off intra-family litigation, promoting family solidarity,”[24] and protecting the public fisc.[25] Remembering that article 1493 was amended with subpart (E) to eliminate the arbitrariness of withholding forced heirship from a person who had a debilitating disease but was not yet permanently incapable at the time of death of the decedent,[26] the requirement that a descendant have an inherited disease should be purged. Family solidarity is served by giving to those who are permanently disabled regardless of whether their disability is inherited. Remember John Jr. from the hypothetical above: what about having PTSD makes him unworthy for forced heirship?[27] Moreover, without a legitime, someone like John Jr. will likely need to rely on the state, thus burdening the public fisc. Distinguishing forced heirs according to whether a disease is inherited fails to uphold the public policy of forced heirship and must be changed.

III. Conclusion

Permanently disabled descendants, under the public policy of this state as embodied in its Constitution[28] and its jurisprudence,[29] legitimately deserve a legitime. Adding subpart (E) to article 1493 was a good first step towards protecting those who are unable to take care of their persons and their estate, but its work is incomplete due to its arbitrary and indeterminate language. Four years ago, Senate Judiciary Committee A was presented with potential amendments to article 1493(E) but voted to defer action until its members could properly evaluate the situation.[30] It has been long enough, and a new amendment should be brought. Judges, lawyers, and most importantly, successors probating testaments deserve a clear standard: “may render” should be replaced with “will, more probably than not, render.” Additionally, the requirement that the incapacitating disease must be inherited should be abolished as its arbitrary and discriminatory nature is anathema to the public policy underlying forced heirship, namely, the promotion of family solidarity.

[1] This language comes from Louisiana Civil Code article 1493(E).

[2] See In re Succession of Ardoin, 957 So. 2d 937, 943 (La. Ct. App. 2007) (finding expert testimony demonstrated bi-polar disorder is likely an inherited disease); Telephone Interview with Dr. Milo Milburn, Professor, Franciscan University of Steubenville (Oct. 14, 2018) (stating that bi-polar disorder, at least to a certain extent, is an inherited disease).

[3] See, e.g., La. Const. art. XII, § 5 (1995); Succession of Lauga, 624 So. 2d 1156, 1163 (La. 1993).

[4] La. Const. art. XII, § 5(B).

[5] La. Civ. Code art. 1493(A) & (E) (2018).

[6] See Louisiana State Senate Broadcast Archives, La. St. Senate (May 13, 2004), http://senate.la.gov/video/videoarchive.asp?v=senate/2014/05/051314JUDA.

[7] La. Civ. Code art. 1493(E) (emphasis added).

[8] See id. art. 1494 (“A forced heir may not be deprived of the portion of the decedent’s estate reserved to him by law, called the legitime, unless the decedent has just cause to disinherit him.”).

[9] See La. St. Senate, supra note 6.

[10] See infra Part II; J.R. Trahan, Successions & Donations, 64 La. L. Rev. 315, 359–75 (2004) (defending in part and criticizing in part article 1493(E)); S.B. 182, Leg., Reg. Sess. (La. 2004) (recommending that article 1493(E) be amended); H.B. 573, Leg., Reg. Sess. (La. 2014) (recommending that article 1493(E) be amended); H.B. 1114, Leg., Reg. Sess. (La. 2014) (recommending that article 1493(E) be repealed); La. St. Senate supra note 6 (bringing H.B. 573 at the request of judges).

[11]H.B. 1114, Leg., Reg. Sess. (La. 2014).

[12] See La. St. Senate, supra note 6; La. Const. art. XII, § 5 (referring to descendants who are incapable of administering their estates, not descendants who are or may become incapable of administering their estates). Article 1493(E) could also be unconstitutional due to vagueness, see Joseph A. Prokop, Jr., Louisiana Successions (2018), but vagueness should be solved by clarifying article 1493(E), not by abolishing it. Changing “may render” to “will, more probably than not, render” will eliminate the vagueness without throwing the article-1493(E)-baby out with the bathwater. See infra Part II.B

[13] See La. St. Senate, supra note 6; see also, e.g., In re Succession of Ardoin, 957 So. 2d 937 (La. Ct. App. 2007); Stewart v. Estate of Stewart, 966 So. 2d 1241 (La. Ct. App. 2007); In re Succession of Forman, 37 So. 3d 1081 (La. Ct. App. 2010); In re Succession of Carroll, 125 So. 2d 505 (La. Ct. App. 2013).

[14] See Trahan, supra note 10, at 365–69. Critics of the legislation also thought the word “incurable” would cause problems. Id. The courts have correctly, and without any apparent struggle, distinguished curability from treatability. See, e.g., In re Succession of Forman, 37 So. 3d at 1084. For more on how treatability affects determining whether a descendent is permanently incapable of taking care of her estate, see Trahan, supra note 10, at 369–371; In re Succession of Ardoin, 957 So. 2d at 943; In re Succession of Forman, 37 So. 3d at 1083–84.

[15] See La. St. Senate, supra note 6.

[16] See Telephone Interview with Dr. Milo Milburn, supra note 2. Alcoholism, like bi-polar disorder, depression and other mental disorders, is not inherited in the sense that the son of an alcoholic will necessarily be an alcoholic, but it is more likely. See id.

[17] See La. St. Senate, supra note 6.

[18] See Trahan, supra note 10, at 371.

[19] Another example that highlights the indeterminacy issue is heart disease. Heart disease is incurable and inheritable, but, at least in some instances, very treatable with medicine. Still, if the individual with heart disease does not adjust their diet or take their medicine, he may become incapable of administering his estate. The same could be said of very high functioning bi-polar individuals. Some individuals with bi-polar may never be incapacitated to the level required by article 1493(E). See generally Telephone Interview with Dr. Milo Milburn, supra note 2. The court in Stewart v. Estate of Stewart, 966 So. 2d 1241 n.2 (La. Ct. App. 2007), stated that descendants who had bipolar disorder were not automatically forced heirs under article 1493(E), but this merely revives the determinability question: bi-polar plus what carries descendants over the “may render” threshold?

[20] See S.B. 182, Leg., Reg. Sess. (La. 2014) (allowing forced heirship for “descendants of the first degree who, at the time of death of decedent, have an incurable disease or condition which as shown by clear and convincing evidence will render them permanently incapable in the future of caring for their persons or administering their estates”) (emphasis added).

[21] See H.B. 573, Leg., Reg. Sess. (La. 2014) (allowing forced heirship when “according to medical documentation, an inherited, incurable disease or condition that will, more probably than not, render them incapable of caring for their persons o administering their estates in the future”) (emphasis added).

[22] See Interview with J.R. Trahan, Professor, Paul M. Hebert Law Center at Louisiana State University, in Baton Rouge, La. (Sept. 27, 2018); but see La. St. Senate, supra note 6 (Professor Katherine Spaht arguing that using the more probable than not standard would add nothing, because it is already the civil burden of proof and persuasion). As article 1493(E) currently stands, the burden of proof requires that it is more likely than not that the inherited, incurable disease may render the individual incapacitated. Under the more probable than not standard proposed in 2014, the burden of proof would require that it is more likely than not that the disease will render the individual incapacitated. Thus, the change is not a distinction without a difference.

[23]See infra Part II.C.

[24] Succession of Lauga, 624 So. 2d 1156, 1165 (La. 1993). It should be noted that Succession of Lauga was decided before forced heirship was abolished and redefined by constitutional amendment in 1995, reflecting the current law. Even with the amendment to the Constitution, the public policy underpinning forced heirship has not changed in kind, rather it has changed by degree. Thus, forced heirship should still ward of intra-family litigation and promote family solidarity even if it cannot do so to the same degree as it did before the amendment. See generally Trahan, supra note 10, at 359.

[25] See La. St. Senate, supra note 6; Trahan, supra note 10, at 359, 373.

[26] See La. St. Senate, supra note 6.

[27] See In re Succession of Carroll, 125 So. 2d 505 (La. Ct. App. 2013) (finding evidence that prostate cancer may render plaintiff incapable in the future was not relevant as there was insufficient evidence to show that the prostate cancer was an inherited disease).

[28] La. Const. art. XII, § 5.

[29] See Succession of Lauga, 624 So. 2d at 1165.

[30] See La. St. Senate, supra note 6.