by Chaz Morgan

Introduction

On May 14, 2021, South Carolina Governor Henry McMaster signed Act 43, a law setting electrocution as the default method of execution in South Carolina.[1] The act also allows inmates to alternatively select a firing squad or lethal injection—if the requisite drugs are available—as a means of execution in lieu of the electric chair.[2] Under South Carolina’s previous law, lethal injection was the default method of execution if inmates did not choose the electric chair.[3] However, the companies that produce the drugs necessary for lethal injection began refusing to sell the drugs to South Carolina to subvert its attempts to carry out death sentences.[4] Simultaneously, inmates refused to choose the electric chair, thereby preventing the state from carrying out its sentences.[5]

Act 43’s use of the electric chair as the default method of execution and the addition of the firing squad—a legal execution method in several other states—as an alternative method have raised questions as to whether these methods are cruel and unusual punishment under the United States Constitution’s Eighth Amendment.[6] If they are cruel and unusual, then these methods are prohibited forms of execution.[7] If they are not cruel and unusual, then the new law is constitutional.[8] Continue reading →

by Natalie R. Earles

Introduction

Imagine that Pierre is driving down the highway in his vehicle. A semi-trailer truck, driven by Étienne, crosses the centerline and crashes into Pierre. It is later discovered that Étienne was intoxicated at the time of the accident and had been fired from his previous truck-driving job for causing four accidents while under the influence. Pierre sues both Étienne and his employer, Big Trucks, Inc. He claims that Étienne was negligent in his operation of the truck and that Big Trucks, Inc. is vicariously liable. He also claims that Big Trucks, Inc. is independently negligent in its hiring, training, and supervising of Étienne and in its entrustment of the truck to Étienne. If the employer stipulates that Étienne was acting in the course and scope of his employment at the time of the accident, a Louisiana court is likely to dismiss Pierre’s independent negligence claims against Big Trucks, Inc.

This outcome is based on a centuries-old tort rule that this Piece dubs the “stipulation rule.” The rule provides that when an employer assumes vicarious liability for its employee’s negligence, the plaintiff may not pursue additional theories of liability against the employer.[1] The stipulation rule originated in Houlihan v. McCall, a 1951 decision of the Maryland Supreme Court.[2] In Houlihan, plaintiffs injured in an automobile accident sued both the truck driver involved and the driver’s employer for negligent hiring or retention.[3] The employer acknowledged an agency relationship with the truck driver.[4] At trial, the court admitted evidence of the employee’s driving record, and the jury found for the plaintiffs.[5] Maryland’s highest court reversed, reasoning that because the employer stipulated that the driver was its agent, it was “unnecessary to pursue the alternative theory” of negligence to hold the defendant liable.[6] The court concluded that the trial court erred by admitting the driver’s record because where agency is stipulated, the employee’s driving record served “no purpose except to inflame the jury.”[7]

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by Heidi Bieber

Introduction

For many years, Louisiana Civil Code of Procedure article 1464 has granted defendants the right to have plaintiffs submit to a physical examination, known as an additional medical examination (AME), when the plaintiff’s medical condition is a “matter in controversy” and “good cause” is shown.[1] Louisiana appellate courts, however, are split on the meaning of good cause. The split has been especially complicated by the Louisiana First Circuit’s recent interpretation in Hicks v. USAA General Indemnity Co.[2] Presently, both the Second and First circuits hold that the ability of the movant to obtain the desired information by other means determines whether good cause is shown for ordering an AME.[3] Additionally, the First Circuit requires the AME physician to review deposition testimony and medical records and then justify why good cause exists for the examination under article 1464.[4] Conversely, the Third and Fourth circuits hold that good cause exists when the plaintiff places his or her mental or physical condition in controversy and fairness dictates the defendant receive an AME in order to rebut the plaintiff’s experts at trial.[5]

The decisions of the First and Second circuits impose a legal standard for good cause under article 1464 that is unsupported by any legislative or jurisprudential basis. Because the defendant in Hicks recently filed a writ with the Louisiana Supreme Court challenging the First Circuit’s decision, the Court may finally provide clarity to the issue. In addressing the issue, the Louisiana Supreme Court should adopt the Third and Fourth circuits’ interpretation of good cause, which is supported by the United States Supreme Court’s holding in Schlagenhauf v. Holder.[6] Continue reading →

John Frey

Introduction

Louisiana is consistently one of the poorest states in America. There are different metrics for what makes a state “poor”; however, Louisiana earns the label regardless of how it is defined. For example, when using the percentage of the population living at or under the poverty line as the standard for whether a state is poor, Louisiana ranks second to last.[1] When ranking states based on a combination of variables, including state finances, state economies, and state job markets, Louisiana ranks, once again, second to last.[2]

Logically, a state struggling financially might want to embrace a new stream of income. For Louisiana, sports gambling provides just that.[3] In November of 2020, Louisiana voters in 55 out of 64 parishes voted to make sports betting legal within their parish, which will lead to the legalization of sports betting in a majority of the state.[4] This result was not a surprise, as Louisiana is no stranger to gambling.[5] In 2020, Louisiana’s gambling offerings, such as casinos, video poker machines, and racetracks, generated $609 million in state taxes, which accounted for roughly 5% of Louisiana’s overall revenue.[6] For comparison, Louisiana is also a prominent oil and gas producer, and oil and gas production only accounted for $550 million in state taxes, which was 4.5% of the state’s revenue.[7] While Louisiana voters may not consider potential tax revenue as the driving force behind their voting decisions, the legalization of sports gambling provides Louisiana with both a new stimulus to its struggling economy and a new pool for state taxes.[8] Continue reading →

Ani Boudreaux

Introduction

On February 23, 2016, Baton Rouge police officers fired 21 times at Travis Stevenson while he was having a mental health crisis.[1] Travis did not survive this encounter with police, and his death has become one part of a larger story. The deaths of George Floyd, Breonna Taylor, and many others have revived a national debate about the need for reform of qualified immunity, which provides an affirmative defense for law enforcement officers in certain situations.[2] On June 17, 2020, the Middle District of Louisiana granted summary judgment in favor of the police officers involved in Stevenson’s killing, holding that they were protected from liability under qualified immunity.[3] There is not a single overwhelming theory of change that would solve all problems with the doctrine in one fell swoop. This post aims to present both federal and state proposals, thus allowing the reader to better understand the history of qualified immunity and the types of issues facing the 5th Circuit on appeal in the case Stevenson’s successors filed, Spears v. Gautreaux.[4]

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