Law Commons^™

No.54 - March 2024, Center Of Civil Law Studies

The Center of Civil Law Studies Newsletter

No abstract provided.

Judicial Fidelity, Caprice L. Roberts

Journal Articles

Judicial critics abound. Some say the rule of law is dead across all three branches of government. Four are dead if you count the media as the fourth estate. All are in trouble, even if one approves of each branch’s headlines, but none of them are dead. Not yet.

Pundits and scholars see the latest term of the Supreme Court as clear evidence of partisan politics and unbridled power. They decry an upheaval of laws and norms demonstrating the dire situation across the federal judiciary. Democracy is not dead even when the Court issues opinions that overturn precedent, upends longstanding …

No.53 - December 2023, Center Of Civil Law Studies

The Center of Civil Law Studies Newsletter

No abstract provided.

On Three Arguments Against Metaphysical Libertarianism, Ken Levy

Journal Articles

No abstract provided.

Continued Conflation Confusion In Louisiana Negligence Cases: Duty And Breach, Thomas C. Galligan Jr.

Journal Articles

Negligence has five elements: duty, breach, cause-in-fact, scope of risk, and damages. Logic dictates that courts, lawyers, scholars, and law students should keep them separate. But they consistently fail to do so. Courts continue to conflate or collapse elements; they combine duty and scope of risk and they combine duty and breach. In combining duty and breach courts purport to determine duty based on the facts of the particular case but, in fact, they are really deciding a question of breach-whether the defendant exercised the care of a reasonable person under the circumstances. In conflating duty and breach courts are …

Rotting Under The Bridge - How False Data Is Polluting Administrative Rulemaking, Nicholas Bryner, Victor B. Flatt

Journal Articles

In response to legislative gridlock, Presidents have increasingly relied on policy made by administrative action, leading to major swings occurring when the political party of the presidency changes. These policy disputes have spilled into the third branch with a concomitant increase in legal challenges seeking judicial review of such actions. At the same time, since the 1980s, both Republican and Democratic administrations have made cost-benefit analysis the currency of federal rulemaking in the executive branch.

The combination of cost-benefit analysis requirements and increased litigation over rulemaking has increased the importance of economic and scientific justifications in both the original promulgation …

Criminal Responsibility, Ken Levy

Book Sections

No abstract provided.

The Medical/Legal/Human Disconnect In Cure Cases: A Proposal For Reform, Thomas C. Galligan Jr.

All Scholarship

The obligation of a vessel owner to provide a seaman with cure or medical treatment for injuries or conditions which were either caused by the seaman’s service of the ship or which manifested themselves during that service is of ancient origin. The obligation lasts until the seaman attains what the courts call maximum medical improvement, a medical decision, even if further treatment would ease the seaman’s pain or prevent relapse or degeneration of the seaman’s condition. Under the traditional rules, if medicine could not fix the seaman’s problem, then the obligation to provide cure ceased. These old rules are out …

Seeking Consent And The Law Of Sexual Assault, Lisa Avalos

Journal Articles

This article focuses on two neglected aspects of rape law. First, its tendency to presume sexual consent across a range of social contexts, overlooking the fact that much social life is predicated on a presumption against sexual contact. Second, its tendency to ignore a critical empirical fact: that an overwhelmingly large number of sexual assaults occur during the first-ever sexual contact between the specific parties involved—what I term “First Encounters.” The relationship between these two facets of rape law is crucial. Whereas much of social life operates with an underlying presumption that people have not consented to sex with others …

Sieracki Lives: A Portrait Of The Interplay Between Legislation And The Judicially Created General Maritime Law, Thomas C. Galligan Jr.

Journal Articles

In American maritime law, the interplay between the courts and Congress is complex and iterative. A significant body of American admiralty law, the general maritime law, has been judicially created and developed. But Congress has also enacted a number of important statutes governing maritime commerce and the rights of maritime workers, such as the Longshore and Harbor Worker’s Compensation Act (“LHWCA”). The back and forth between the courts and Congress in interpreting those statutes and gauging their impact on and consistency with the general maritime law is ongoing. One important area where the courts development of the general maritime law …

Reasonably Accommodating Employment Discrimination Law, William Corbett

Journal Articles

The law of accommodations within employment discrimination law evolved significantly in 2023. The Pregnant Workers Fairness Act (PWFA) was enacted by Congress and signed by President Biden in 2022, and it became effective on June 27, 2023. The Act creates a statutory duty for covered employers to make reasonable accommodations for pregnancy, childbirth, and related medical conditions. Two days after the effective date of the PWFA, the Supreme Court rendered a decision in Groff v. DeJoy in which the Court clarified the meaning of the “undue hardship” limitation on the duty of employers under Title VII to reasonably accommodate religious …

Sales Free And Clear Of An Intellectual Property Licensee's Interests In Bankruptcy -- Looking To In Re Tempnology For Guidance, Summer Chandler

Journal Articles

Uncertainty surrounds many issues that exist at the intersection of bankruptcy law and intellectual property law. Section 363(f) of the Bankruptcy Code permits the debtor to sell assets free of a third party’s interest in such assets, provided one or more preconditions is satisfied. When a debtor rejects a license agreement pertaining to the debtor’s intellectual property, however, § 365(n) of the Bankruptcy Code allows the licensee to choose to retain its rights to use the intellectual property that was the subject of the rejected license agreement. One unsettled question is whether a debtor may sell intellectual property pursuant to …

The Case In Favor Of Waivable Employee Rights: A Contrarian View, William Corbett

Journal Articles

Most employee rights in U.S. labor and employment law are nonwaivable. Waivable employee rights exist most prominently in the law regarding noncompetes and mandatory arbitration agreements. In recent years, there has been substantial backlash against perceived employer confiscation of workers’ rights in these two areas. On January 5, 2023, the Federal Trade Commission issued a proposed rule prohibiting employers from entering into noncompete agreements with workers. In 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. Clearly, the federal government has become concerned with employers’ opportunistic confiscation of employees’ waivable rights and …

Reconciling Property Rights With Carbon Capture And Storage, Keith B. Hall

Journal Articles

No abstract provided.

The Under-Enforcement Of Crimes Against Black Women, Lisa Avalos

Journal Articles

It is well known that over-policing has a severe adverse impact on communities of color. What is less well known is that over-policing is accompanied by a corollary—a pervasive and systemic under-policing of violence against women of color. The refusal to see women of color as victims of crime who are worthy recipients of justice, and to minimize the severity of violence committed against them, are habits that are deeply embedded in the American system of [in]justice. From an 1855 Supreme Court decision refusing to recognize a female slave’s right to sexual autonomy to a prosecutor’s 2021 decision to prosecute …

The Educated Retail Investor: A Response To "Regulating Democratized Investing", Christina M. Sautter, Sergio Alberto Gramitto Ricci

Journal Articles

The diffusion of mobile-first investing apps, like Robinhood, has increased retail investor participation in financial markets, particularly from the Millennial and GenZ generations, and has increased the diversity of retail investors. However, mobile-first investing apps are not free from controversy. In Regulating Democratized Investing, Abraham Cable tackles the debate on regulating mobile-first investing apps and largely opposes paternalistic regulation, which would raise unsurmountable barriers at the entrance of the stock market for retail investors. But it concedes to a form of regulation that in Cable’s own words “serves ultra-retail investors a modest portion of what they really want.” We strongly …

No.52 - December 2022, Center Of Civil Law Studies

The Center of Civil Law Studies Newsletter

No abstract provided.

Let's Not Do Responsibility Skepticism, Ken M. Levy

Journal Articles

I argue for three conclusions. First, responsibility skeptics are committed to the position that the criminal justice system should adopt a universal nonresponsibility excuse. Second, a universal nonresponsibility excuse would diminish some of our most deeply held values, further dehumanize criminal, exacerbate mass incarcerations, and cause an even greater number of innocent people (nonwrongdoers) to be punished. Third, while Saul Smilansky's 'illusionist' response to responsibility skeptics - that even if responsibility skepticism is correct, society should maintain a responsibility-realist/retributivist criminal justice system - is generally compelling, it would not work if a majority of society were to convert, theoretically and …

Statutory Interpretation And Agency Disgorgement Power, Caprice L. Roberts

Journal Articles

What happens when obstacles foreclose claims and threaten to leave parties without adequate relief? Or, when the cause of action escapes conventional classification? Or, when Supreme Court decisions frustrate private litigation causing pressure for public enforcement by agencies? Or, when individuals engage in novel forms of wrongdoing that the law may fail to reach? It becomes hard to resist the siren call of equity and its powerful remedies. This trend includes sweeping national injunctions, constructive trusts, and more. Disgorgement is also one such remedy, and its popularity is rising in terms of private and public applications and challenges. It is …

Multicultural Populations And Mixed Legal Systems In The United States: Louisiana And Puerto Rico, Olivier Moréteau, Luis Muniz Arguelles

Journal Articles

No abstract provided.

The Importance Of Looking Under The 'Administrative Hood': A Case Study Of The National Waters Protection Rule, Nicholas S. Bryner, Victor Byers Flatt

Journal Articles

In an era of legislative gridlock, policy by administrative action has expanded, with major swings occurring when the political party of the presidency changes. These policy disputes have spilled into the third branch with a concomitant increase in legal challenges seeking judicial review of such actions. At the same time, both Republican and Democratic Administrations have made cost-benefit analysis the currency of federal rulemaking in the executive branch.

The combination of the expansion of cost-benefit analysis and the increased litigation over rulemaking has increased the importance of economic and scientific justifications in both the promulgation and revision of administrative actions. …

Helpless By Law: Enduring Lessons From A Century-Old Tragedy, Raymond T. Diamond, Robert J. Cottrol

Journal Articles

This essay examines questions of violence and self-defense in African American history. It does so by contrasting historical patterns of racist anti-Black violence prevalent in the nineteenth and early twentieth century, as exemplified by the destruction of the Greenwood community in Tulsa Oklahoma in 1921, with the current phenomenon of Black-on-Black violence in modern inner-city communities. Although circumstances have changed greatly in the century since the destruction of Greenwood, two phenomena persist: 1. the failure of authorities to protect Black communities and their residents, and 2. efforts by authorities to use the law or law enforcement to disarm members of …

Cross-Statute Employment Discrimination Claims And The Need For A "Super Statute", William R. Corbett

Journal Articles

Employment discrimination law is almost sixty years old in the United States. The law has developed under several different statutes enacted by Congress at different times. Congress has amended the statutes over the years, almost always in reaction to Supreme Court decisions with which it disagrees. The Supreme Court and the lower courts then interpret these piecemeal repairs of the law. This approach has produced a body of employment discrimination law in which there are significant asymmetries among the protected characteristics and the several statutes. These asymmetries produce both practical and theoretical problems, creating employment discrimination law that is cumbersome …

Legal Uncertainties: Covid-19, Distance Learning, Bar Exams, And The Future Of U.S. Legal Education, Christine Corcos

Journal Articles

The COVID-19 pandemic forced the U.S. legal academy and legal profession to make changes to legal education and training very rapidly in order to accommodate the needs of students, graduates, practitioners, clients, and the public. Like most of the public, members of the profession assumed that most, if not all, of the changes would be temporary, and life would return to a pre-pandemic normal.

These assumed temporary changes included a rapid and massive shift to online teaching for legal education, to online administration of the bar exam in some jurisdictions, or the option to offer the diploma privilege in others. …

Louisiana Oil & Gas Update, Keith B. Hall

Journal Articles

No abstract provided.

The Corporate Forum, Christina M. Sautter, Sergio Alberto Gramitto Ricci

Journal Articles

In this response to Professor Jill Fisch’s article "GameStop and the Reemergence of the Retail Investor," we focus on one of the risks associated with the growth of retail investing that Fisch surveys, uncontrolled information sourcing. Drawing on our work on retail investors, we revisit an instrument dear to the U.S. Securities and Exchange Commission, whose potential has not been unleashed so far, the corporate forum. Our response succinctly discusses the main mechanics of the corporate forum, the benefits the corporate forum could provide, and the feasibility hurdles that might undermine the success of corporate forums.

Never Look Back: Non-Regression In Environmental Law, Nicholas S. Bryner

Journal Articles

Deregulatory advocates often frame environmental protection and economic well-being as a zero-sum tradeoff. During times of economic crisis, including the long-term fallout from the global covid-19 pandemic, policymakers may seek to withdraw or roll back environmental laws and regulations in an attempt to accelerate economic recovery. In order to safeguard the interests of vulnerable populations that suffer from pollution and other environmental harms, it is imperative to retain environmental regulations, removing or relaxing them only when there is a clear justification for doing so.

Built in environmental legal frameworks in both international and domestic law is a principle of non-regression—no …

Firing Employment At Will And Discharging Termination Claims From Employment Discrimination: A Cooperative Federalism Approach To Improve Employment Law, William Corbett

Journal Articles

The article focuses on employment at will and employment discrimination law-and explores how each encroaches upon and weakens the other. It mentions federal-state cooperative approach to "firing" employment at will and discharging termination claims from the federal employment discrimination laws. It also mentions cooperative federalism approach to improve employment law and basics of a wrongful discharge statute.

Corporate Governance Gaming: The Collective Power Of Retail Investors, Christina M. Sautter, Sergio Alberto Gramitto Ricci

Journal Articles

The GameStop saga and meme stock frenzy have shown the pathway to the most disruptive revolution in corporate governance of the millennium. New generations of retail investors use technologies, online forums, and gaming dynamics to coordinate their actions and obtain unprecedented results. Signals indicate that these investors, whom we can dub wireless investors, are currently expanding their actions to corporate governance. Wireless investors' generational characteristics suggest that they will use corporate governance to pursue social and environmental causes. In fact, wireless investors can set in motion asocial movement able to bring business corporations to serve their original partly-private-partly-public purpose. This …

The Impact Of Municipal Fiscal Crisis On Equitable Development, Christopher J. Tyson

Journal Articles

The article focuses on how redevelopment authorities and land banks (RALBs) are especially vulnerable to municipal fiscal distress given investment and coordination necessary to bring about meaningful, impactful equitable development require a level of resource deployment most local governments. It mentions powers of public finance authority, distressed property management, code enforcement and blight elimination. It also mentions resources necessary to do urban planning, community engagement.